By Michael Appel
State prosecutor Adv Billy Downer, SC and News24 journalist Karyn Maughan will potentially face their criminal prosecution by Jacob Zuma on 2 February 2023.
The date was agreed by the parties during a brief appearance in the Pietermaritzburg High Court on Monday.
Downer is accused of contravening sections of the National Prosecuting Authority Act related to unauthorised disclosure of information, while Maughan, as an “accomplice”, is charged with unauthorised disclosure of the contents of a document.
The summons served on the duo in early September stated that Downer “did unlawfully and intentionally” instruct his colleague advocate Andrew Breitenbach, SC to share court documents with Maughan which contained “a letter dated 8 August 2021, classified as ‘Medical Confidential’ and titled ‘Medical Support to the President of the Republic of South Africa and Former Presidents’, as authored by Brigadier General Dr M.Z Mdutywa of the South African Medical Health Service”.
Maughan was instructed – as is commonplace in journalism – not to run the story containing information taken from the court papers, including the attached medical letter, until they had been filed the proceeding day, thereby forming part of the public record once court had commenced. The medical letter – submitted to court by Zuma’s own legal counsel – made no mention of Zuma’s medical condition but referenced a “traumatic injury” he’d suffered.
Zuma launched the private prosecution after the state declined to prosecute Downer on charges laid against him last year. The NPA subsequently issued a nolle prosequi certificate on 6 June – a legal requirement in order to pursue private prosecution. But no such certificate was ever issued in terms of Maughan.
Before the criminal matter even gets to be heard in February next year, Downer and Maughan will be bringing separate applications to have the matter struck from the roll. Those applications – which the duo will be arguing should be heard on an urgent basis – are set down for 8 and 9 December this year. Should they succeed, the private prosecution case will go no further. But, as is the former president’s right and most certainly his style, he’s likely to appeal should the outcome go against him.
Therein lies the crux of the matter. The criminal prosecution instituted against the prosecutor in his arms deal trial, and a journalist who has been writing about his legal woes for almost two decades, will simply further delay the start of his own corruption trial.
Adv Steven Budlender, SC, representing Maughan, told the court that: “Ms Maughan’s position is that the matter is extremely urgent and she wishes it to be heard as soon as possible. Because her case, as appears from the papers, is that the application [to prosecute her] has been brought for the sole purpose of harassing her, intimidating her, and preventing her from doing her job.”
Budlender explained that due to a “conflict of interest” the urgent application couldn’t be heard on Monday – and that it has subsequently been stood down until 8 and 9 December, but not removed from the court roll.
When the matter is heard in a few months time, Budlender says Maughan will contend that the summons falls to be set aside on three grounds. These include that “the matter is an abuse of process, a violation of the right to free media and the right to freedom of expression. That the matter is patently bad because there is no certificate of nolle prosequi issued in respect of Ms Maughan. The only certificate issued is in respect of Ms Downer. And that Mr Zuma [therefore] lacks standing to bring it.”
Adv Dali Mpofu, SC, acting on behalf of Zuma, says the criminal prosecution being instituted has nothing to do with harassment or intimidation.
“The matter has been brought for the purpose of enforcing criminal law because she [Maughan] broke the criminal law by being a participant in the exchange of documents without the permission of the national director of public prosecutions or the private prosecutor. There are no special rules for special accused. They must come and face the music in this court about all those issues,” says Mpofu.
Zuma – who was formally declared a free man last week by virtue of his 15-month sentence coming to an end – was present in court. He was granted medical parole less than two months into his stint in jail. He was deemed to either be terminally ill or physically incapacitated by the former correctional services commissioner Arthur Fraser. The correctional services medical parole advisory board did not grant Zuma medical parole but that decision was overruled by Fraser. Fraser’s decision is currently being challenged in the courts.
Des van Rooyen, better known as “Weekend Special” for his short stint as Zuma’s finance minister, was also at court to support Zuma, as was Dudu Myeni. Another hanger-on present at court was of course, Carl Niehaus. Zuma addressed the underwhelming crowd outside the court, and true to form, danced and sang pretty energetically for a man released from prison due to medical incapacitation. He told those gathered in isiZulu that they are in court because “a prosecutor shouldn’t conspire with a journalist”.
Many journalists expressed solidarity with Maughan on social media. The National Press Club also said it condemns all efforts to bully journalists and intimidate them to prevent them from doing their jobs without fear or favour.
Read also:
- Karyn Maughan prosecution branded ‘intimidation’ and ‘attack on media freedom’
- From Russia with very expensive love – Karyn Maughan on SA’s bombed nuclear deal
- Arthur Fraser: A ‘Zuma man’ for all seasons
- IRR moves to return Zuma to jail
