THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 788/2023

In the matter between:
JACOB GEDLEYIHLEKISA ZUMA
APPELLANT
and
WILLIAM JOHN DOWNER                                                       FIRST RESPONDENT
KARYN MAUGHAN                                                              SECOND RESPONDENT

Neutral citation:
Jacob Gedleyihlekisa Zuma v William John Downer and Another
(Case no 788/2023) [2023] ZASCA 132 (13 October 2023)
Coram:
MOLEMELA P and PONNAN, SALDULKER, MOCUMIE and MOTHLE
JJA
Heard:
28 September 2023
Delivered:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website,
and release to SAFLII. The date for hand down is deemed to be 13 October 2023 at
11h00.
Summary:
Section 18 of the Superior Courts Act 10 of 2013 – suspension of order
pending appeal – abuse of process – not to order judgment to be carried into effect –
will prolong the abuse.

___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg (Kruger,
Henriques and Masipa JJ, sitting as court of first instance):
The appeal is dismissed with costs, including those of two counsel, to be paid on the
attorney and client scale.
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Ponnan JA (Molemela P and Saldulker, Mocumie and Mothle JJA concurring):
[1] The appellant, Mr Jacob Zuma, the former President of this country, is facing
multiple charges of corruption, fraud, racketeering and money laundering. He first
appeared in court in relation to those charges on 29 June 2005, his trial has still not
commenced. Throughout this period, the first respondent, Mr William Downer, has
served as the lead prosecutor for the National Prosecuting Authority (NPA). He also
handled the related prosecution of Mr Schabir Shaik, who was convicted of corruption
in 2005, in respect of conduct in which Mr Zuma was implicated.

[2] In 2021, Mr Zuma finally had to plead to the charges. He did not plead to the
substance of the charges. He raised a special plea in terms of s 106(1)(h) of the
Criminal Procedure Act 51 of 1977 (the CPA). The application was launched on 17
May 2021 with the Kwazulu-Natal Division of the High Court, Pietermaritzburg (the
high court). Mr Zuma alleged that Mr Downer is not a fit person to prosecute him. Koen
J dismissed the application in a 107-page judgment, in which he analysed Mr Zuma’s
contentions and rejected each of them.1 Mr Zuma thereafter applied to the high court
and then this Court for leave to appeal, which failed. So too, his application to the
President of this Court for a reconsideration in terms of s 17(2)(f) of the Superior Courts
Act 10 of 2013 (the Act) and his two applications thereafter to the Constitutional Court
for leave to appeal.

1 S v Zuma and Another [2021] ZAKZPHC 89; [2022] 1 All SA 533 (KZP); 2022 (1) SACR 575 (KZP).

[3] On 5 September 2022, Mr Zuma instituted a private prosecution in the high
court against Mr Downer, as also, against the second respondent, Ms Karyn Maughan,
a senior legal journalist, who has been reporting on the criminal investigation, his
criminal indictment and the numerous legal challenges and proceedings for well on 20
years. Mr Downer and Ms Maughan (collectively referred to as the respondents)
applied separately to the high court to have the private prosecution set aside as an
abuse of process of the court. The applications were consolidated and heard on 10,
20 and 22 March 2023, before a specially constituted court of three judges (Kruger,
Henriques and Masipa JJ), sitting as a court of first instance. On 7 June 2023, the high
court, in a judgment running to 63 pages, set aside the criminal summons against the
respondents, interdicted the private prosecution and ordered Mr Zuma to pay costs on
a punitive scale (the main judgment). Mr Zuma applied for leave to appeal the main
judgment, which was dismissed by the high court on 11 September 2023. At the bar
in this Court, we were informed that a petition to this Court will follow and, if that fails,
an application will be made to the Constitutional Court for leave to appeal.

[4] Both respondents applied to the high court in terms of s 18(1) read with s 18(3)
of the Act for an order that the setting aside of the private prosecution is to remain in
force pending the outcome of any appeal against the main judgment. On 3 August
2023, the high court made such an order (the execution order). Exercising his
automatic right of appeal under s 18(4)(ii) of the Act, Mr Zuma filed a notice of appeal
with this Court against the execution order on 14 August 2023. And, after compliance
by the parties with the directions issued by the President of this Court, the matter was
enrolled, in accordance with s 18(4)(iii), as one of urgency for hearing on Thursday 28
September 2023, which was the penultimate day of the court term.2

2 Section 18 of the Superior Courts Act, which governs the suspension of a decision pending an appeal,
provides:
‘(1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders
otherwise, the operation of a decision which is the subject of an application for leave to appeal or of an
appeal, is suspended pending the decision of the application or appeal.
(2) Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the
operation and execution of a decision that is an interlocutory order not having the effect of a final
judgment, which is the subject of an application for leave to appeal or appeal, is not suspended pending
the decision of the application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied
to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer
irreparable harm if the court does not so order and that the other party will not suffer irreparable harm
if the court so orders.
(4) If a court orders otherwise, as contemplated in subsection (1) –

[5] The respondents contend that Mr Zuma has engaged in an unremitting
campaign to delay the commencement of his criminal trial and that, to allow the
proposed private prosecution (which is described as a sham and an abuse) to
proceed, would mean that he would be allowed to succeed in his strategy of delay.
This will of course be addressed in the attempted appeal by Mr Zuma against the main
judgment. For now, so the contention proceeds, the suspension of the private
prosecution should remain in force while that process plays out.

[6] As long ago as May 2007, Mr Zuma’s then counsel intimated, in response to a
query from Hugo J, that he was following a ‘Stalingrad’ strategy’ in the conduct of Mr
Zuma’s defence to the criminal charges that the latter faced. As explained by Wallis
JA in Moyo v Minister of Justice and Constitutional Development and Others:
‘The term “Stalingrad defence” has become a term of art in the armoury of criminal defence
lawyers. By allowing criminal trials to be postponed pending approaches to the civil courts,
justice is delayed and the speedy trials for which the Constitution provides do not take place.
I need hardly add that this is of particular benefit to those who are well-resourced and able to
secure the services of the best lawyers.’3
The high court recorded in the main judgment that ‘[t]he application [by the
respondents to set aside the private prosecution] is directed at ensuring that there is
an end to the abuse of an unlawful private prosecution and an end hopefully to the
“Stalingrad” strategy’.

[7] A key plank of this appeal is that no other court had been as ready to accept
the characterisation ‘Stalingrad’, as was the high court in this matter. That is not
entirely accurate. In Democratic Alliance v President of the Republic of South Africa,
three judges of the Gauteng Division of the High Court, Pretoria found that Mr Zuma
had adopted a ‘Stalingrad defence strategy’, which had ‘cost the state, and hence the

(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the next highest court;
(iii) the court hearing such an appeal must deal with it as a matter of extreme urgency; and
(iv) such order will be automatically suspended, pending the outcome of such appeal.
(5) For the purposes of subsection (1) and (2), a decision becomes the subject of an application for
leave to appeal or of an appeal, as soon as an application for leave to appeal or a notice of appeal is
lodged with the registrar in terms of the rules.’
3 Moyo v Minister of Justice and Constitutional Development and Others; Sonti v Minister of Justice and
Correctional Services and Others [2018] ZASCA 100; 2018 (8) BCLR 972 (SCA); [2018] 3 All SA 342
(SCA); 2018 (2) SACR 313 (SCA) para 169.

taxpayer, thus far a total amount of between R16 788 781.14 and R32 million’.4 Meyer
J (Ledwaba DJP and Kubushi J concurring) observed that the law reports are indeed
replete with judgments dealing with Mr Zuma’s criminal prosecution.5 The court noted
that Mr Zuma had ultimately been unsuccessful in every one of the challenges, almost
always with an adverse costs order.

[8] In 2017, Navsa ADP commenced a judgment of this Court with a reference to
TS Eliot’s ‘recurrent end of the unending’.6 He proceeded to refer to what Harms JA
said some eight years earlier in National Director of Public Prosecutions v Zuma:
‘The litigation between the NDPP and Mr Zuma has a long and troubled history and the law
reports are replete with judgments dealing with the matter. It is accordingly unnecessary to
say much by way of introduction and a brief summary will suffice.’7

4 Democratic Alliance v President of the Republic of South Africa and Others; Economic Freedom
Fighters v State Attorney and Others [2018] ZAGPPHC 836; [2019] 1 All SA 681 (GP) para 1, this
decision was upheld by this Court in Zuma v Democratic Alliance and Another [2021] ZASCA 39; [2021]
3 All SA 149 (SCA); 2021 (5) SA 189 (SCA).
5 The high court observed ibid para 23:
‘The law reports are indeed replete with judgments dealing with Mr Zuma’s criminal prosecution and
the related civil proceedings, and in particular his challenges to:
(a) the lawfulness of the search warrants issued against him (Zuma and another v National Director of
Public Prosecutions and others 2006 (1) SACR 468 (D); [2006] 2 All SA 91 (D); Thint (Pty) Ltd v National
Director of Public Prosecutions [2008] 1 All SA 229 (SCA); National Director of Public Prosecutions v
Zuma and another [2008] 1 All SA 197 (SCA) and Thint (Pty) Ltd v National Director of Public
Prosecutions and others; Zuma and another v National Director of Public Prosecutions and others 2009
(1) SA 1 (CC));
(b) the letter of request issued to access information held by the Mauritian authorities (National Director
of Public Prosecutions v Zuma and others (13569/2006) 2 April 2007 (DC&LD) unreported; Zuma and
others v National Director of Public Prosecutions [2007] ZASCA 135; [2008] 1 All SA 234 (SCA) and
Thint Holdings (Southern Africa) (Pty) Ltd and another v National Director of Public Prosecutions; Zuma
v National Director of Public Prosecutions [2008] ZACC 14; 2009 (1) SA 141 (CC));
(c) his indictment in terms of s 179 of the Constitution (Zuma v National Director of Public Prosecutions
[2009] 1 All SA 54 (N); 2009 (1) BCLR 62 (N); and National Director of Public Prosecutions v Zuma
[2009] ZASCA 1; 2009 (2) SA 277 (SCA));
(d) the DA’s locus standi in the DA’s review application, the reviewability of the decision of the acting
NDPP to discontinue his prosecution and to the furnishing of the record to the DA (Democratic Alliance
and others 2012 (3) SA 486 (SCA); [2012] 2 All SA 345 (SCA); [2012] 2 All SA 345 (SCA); 2012 (6)
BCLR 613 (SCA));
(e) the disclosure of the transcripts of the conversations recorded in the spy tapes (Democratic Alliance
v Acting National Director of Public Prosecutions and others 2016 (2) SACR 1 (GP); [2016] 3 All SA 78
(GP); Zuma v Democratic Alliance and others [2014] 4 All SA 35 (SCA));
(f) and his opposition to the DA’s review application (Zuma v Democratic Alliance and others; Acting
National Director of Public Prosecutions and another v Democratic Alliance and another 2018 (1) SA
200 (SCA); [2017] 4 All SA 726 (SCA); 2018 (1) SACR 123 (SCA); Democratic Alliance v Acting National
Director of Public Prosecutions and others 2016 (2) SACR 1(GP)).’ (My emphasis underlined.)
6 Zuma v Democratic Alliance and Others; Acting National Director of Public Prosecutions and Another
v Democratic Alliance and Another [2017] ZASCA 146; [2017] 4 All SA 726 (SCA); 2018 (1) SA 200
(SCA); 2018 (1) SACR 123 (SCA).
7 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 2.

This abbreviated history illustrates that on any reckoning, the scale of litigation, which
is likely unprecedented in the South African courts, justifiably attracts the epithet
‘Stalingrad’.

[9] The private prosecution is not the last attempt by Mr Zuma to achieve the
removal of Mr Downer as the prosecutor. On 18 April 2023, he launched a second
application for Mr Downer’s removal. That application, to be heard by Chili J, has been
postponed for argument on 26 October 2023. Mr Zuma has repeatedly attacked the
NPA and Mr Downer in an attempt to discredit him and disqualify him as the prosecutor
in his criminal case. The overarching theme of Mr Zuma’s answering affidavit in the s
18(3) application is that the implementation order should not be granted, because he
should not be prosecuted by Mr Downer. In that regard, Mr Zuma asserted, absent a
true factual foundation, that ‘[t]he entire public prosecution was employed to discredit
me politically and Mr Downer was used as a prosecutorial and political hitman to
weaponize prosecutorial power to achieve political ends’.

[10] What emerges is that the central purpose of the private prosecution is to enable
Mr Zuma to have Mr Downer removed as the prosecutor on the basis that he (Mr
Downer) stands accused in the private prosecution. However, the question whether
Mr Downer should be removed as prosecutor is of course not before this Court. Mr
Zuma’s second attempt (following upon the failed attempt before Koen J) to achieve
this is pending before Chili J. Ultimately, whether Mr Downer is prosecuted depends
on the successful outcome of Mr Zuma’s appeal of the main judgment.

[11] The facts demonstrate that the private prosecution of Mr Downer is an abuse
of the process of the court, for multiple reasons: first, as the high court found, it was
instituted as a further step in a sustained attempt by Mr Zuma to obstruct, delay and
prevent his criminal trial – this is an ulterior purpose, and the institution of the private
prosecution was accordingly unlawful; second, it was instituted in order to have Mr
Downer removed as the prosecutor in Mr Zuma’s trial – this too is an ulterior purpose,
which renders the private prosecution unlawful; and, third, the contemplated private
prosecution is patently a hopeless case. It is obviously unsustainable. Mr Zuma has
not made out any possible basis on which Mr Downer might be convicted, even on Mr

Zuma’s own version of the facts. This, too, renders the private prosecution an abuse
of the process.

[12] As to the third: Mr Zuma’s case against Mr Downer consists of two charges.
The first charge is a complaint that Mr Downer disclosed confidential or private medical
information about Mr Zuma to Ms Maughan, in breach of s 41(6) of the National
Prosecuting Act 32 of 1998. The undisputed fact is that Mr Downer made no such
disclosure to Ms Maughan. The disclosure in question was made by Adv Breitenbach
SC, a member of the prosecution team. In any event, both Koen J and the high court
found that there was no disclosure of confidential or private information. Each thus
rejected the charge as unfounded. In reply before us, Counsel suggested that Koen J
had not made a firm pronouncement as to the confidentiality of the information. A
suggestion neither raised on the papers, nor foreshadowed in the heads. However,
that is to misconstrue the effect of Koen J’s judgment. Koen J found that Mr Zuma’s
doctor’s note was not truly intended to be confidential;8 it did not contain any
confidential information;9 and, its disclosure did not constitute an actionable violation
of his rights.10 It is so that in the course of his judgment Koen J did proceed to consider
further hypotheticals, presumably for the benefit of an appeal court and on the
assumption that it may take a contrary view to him on his primary finding. In the event,
his further ‘ruminations’, as he described it, proved unnecessary, because leave to
appeal was refused, which means that his primary finding that the note did not contain
any confidential information stands. The second charge relates to a conversation that
Mr Downer had with a journalist, Mr Sam Sole, in 2008. Mr Zuma has never previously
sought to bring any complaint or charges against Mr Downer in this regard. And, like
the first charge, the information disclosed was not confidential or private. The facts

8 S v Zuma and Another fn 1 above Koen J held (para 263): ‘The only inference is that the intention, at
that point, was that the letter of 8 August 2021 would form part of the application for a postponement .
. . which would mean that it would become public when filed That would be inconsistent with the
protestations that the letter was a confidential document, of which the confidentiality, if it in fact was
confidential in the first place, was not waived.’
9 Ibid para 264: ‘The letter had furthermore been disclosed to Mr Downer, Ms Naicker and the DPP of
KZN, without any specific restrictions as regards confidentiality, by the Head of the Correctional Centre
at Estcourt on 8 August 2021. The letter did not contain anything significantly confidential . . .’
10 Ibid para 265: ‘The letter of Brigadier General (Dr) Mdutywa is vague and general in its terms and
does not disclose any particularity, which could be said to amount to a violation of Mr Zuma’s rights his
rights to privacy. Specifically, it does not mention the medical condition Mr Zuma suffers from . . .’; and,
para 266: ‘I am not persuaded that the disclosure of the contents of the letter constituted an actionable
violation of Mr Zuma’s rights.’

show that Mr Downer was authorised to make the disclosure. Both Koen J and the
high court considered and also rejected this charge as unfounded.

[13] Turning to Ms Maughan: It was initially contended before the high court by Mr
Zuma that a first nolle prosequi certificate (issued on 6 June 2022), which expressly
named Mr Downer, also covered her. Mr Zuma now appears to contend that a second
nolle prosequi certificate (issued on 21 November 2022) covers Ms Maughan. This,
on the basis of an affidavit subsequently deposed to by the prosecutor who issued it.
The high court held that the second certificate still ‘does not name her as a suspect’.
If the purpose of the second certificate was to include Ms Maughan, one imagines that
it would surely have named her expressly (like the first certificate did of Mr Downer).
The high court also held that the second certificate was issued well after Mr Zuma had
initiated the private prosecution against Ms Maughan, and thus cannot retrospectively
cure the unlawfulness of the prosecution. Before the initiation of the private
prosecution against Ms Maughan, Koen J had already found that the note issued by
Mr Zuma’s doctor (upon which the private prosecution rests) was not intended to be
confidential, did not contain any confidential information and its disclosure did not
constitute an actionable violation of his rights.

[14] Ms Maughan characterises her private prosecution as one that has been
brought by a powerful former President against a journalist (who has been reporting
on his legal troubles in a manner that displeases him), which will have a chilling effect
on her journalistic freedom and press freedom more widely. It also means that she will
have to continue to report, in the face of insults and threats from his supporters, with
a cloud of criminal opprobrium hanging over her head, which undermines her
journalistic credibility. There is nothing to gainsay any of this. If anything, as the high
court recorded, having regard to Mr Zuma’s answering affidavit, ‘his personal
animosity toward [her] is exposed’: ‘She is alleged to have colluded, conspired and
been in partnership with State prosecutors perpetuating a false narrative about his
conduct toward litigation and the delays in the criminal trial. This is repeated on a
number of occasions in the answering affidavit and his hatred, impatience and
vitriolism toward her is patently obvious.’ She has been labelled ‘a hostile journalist’
and ‘an anti-Zuma crusader’, who is being used as the ‘propaganda machinery of the
media’.

[15] In the main judgment, the high court concluded:
‘In the result, we are of the view that considering the respective grounds advanced by Downer
and Maughan, the submissions of the respective amici, and the various case authorities
referred to hereinbefore, the Respondent’s private prosecution of Downer and Maughan
constitutes an abuse of process as it has been instituted for an ulterior purpose and
consequently, they are entitled to the relief sought in the respective notices of motion.’
For the present, the correctness of that key finding is not before us. That is a matter
for the main appeal. The finding stands until set aside by a court of competent
jurisdiction.11 It does, however, appreciably narrow the scope and extent of the present
appeal.

[16] This Court has examined the prerequisites for the implementation of an order
pending an appeal in University of the Free State v Afriforum;12 Ntlemeza v Helen
Suzman Foundation;13 Premier of Gauteng v Democratic Alliance;14 and, Knoop v
Gupta (Knoop).15 It is not necessary that those be revisited here. As Wallis JA
observed in Knoop (para 1):
‘The immediate execution of a court order, when an appeal is pending and the outcome of the
case may change as a result of the appeal, has the potential to cause enormous harm to the
party that is ultimately successful. That was well-illustrated by the facts in Philani-Ma-Afrika,16
where the judge granted leave to appeal against an eviction order and at the same time gave
leave to execute. . . In giving the judgment of this court, Farlam JA said: “The facts of this case
provide a striking illustration of the need for orders of the nature of the execution order to be
regarded as appealable in the interests of justice.”.’17
In my view, this is not such a matter.

11 Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd & Others
[2013] ZASCA 5; [2013] 2 All SA 251 (SCA) para 17.
12 University of the Free State v Afriforum and Another [2016] ZASCA 165; [2017] All SA 79 (SCA);
2018 (3) SA 428 (SCA).
13 Ntlemeza v Helen Suzman Foundation and Another [2017] ZASCA 93; [2017] 3 All SA 589 (SCA);
2017 (5) SA 402 (SCA).
14 Premier for the Province of Gauteng and Others v Democratic Alliance and Others [2020] ZASCA
136; [2021] 1 All SA 60 (SCA).
15 Knoop and Another NNO v Gupta (Tayob Intervening) [2020] ZASCA 149; [2021] 1 All SA 17 (SCA);
2021 (3) SA 135 (SCA).

16 Philani-Ma-Afrika and Others v Mailula and Others [2009] ZASCA 115; 2010 (2) SA 573 (SCA); [2010]
1 All SA 459 (SCA).
17 Ibid para 20.

[17] Prior to the enactment of s 18 of the Act, the accepted common law rule of
practice was that generally, the execution of a judgment was automatically suspended
upon the noting of an appeal, with the result that, pending the appeal, the judgment
could not be carried out and no effect could be given thereto, except with the leave of
the court which granted the judgment. The court had a wide general discretion in that
regard, which was part and parcel of the inherent jurisdiction which the court has to
control its own judgments (South Cape Corporation (Pty) Ltd v Engineering
Management Services (Pty) Ltd (South Cape Corporation)).18

[18] For the high court to have allowed the suspension of the main judgment
pending an appeal would have been mutually incompatible with the conclusion
reached by it that the private prosecution of the respondents constituted an abuse. If
anything, in the light of the need for the high court to control its own judgments, it may
well have been obliged to order the main judgment to be carried into effect to prevent
an ongoing abuse. If Mr Zuma’s private prosecution is indeed an abuse of the process
as the high court held, then it follows that allowing it to be enforced pending an appeal
will prolong and perpetuate that abuse. This will make a mockery of the high court’s
judgment and will undermine public confidence in the judiciary’s capacity to control its
own judgments and to protect individuals from an abuse of process, including an
unlawful, abusive and oppressive private prosecution.

[19] Indeed, as Corbett JA noted in South Cape Corporation:
‘The purpose of this [common law] rule as to the suspension of the judgment on the noting of
an appeal is to prevent irreparable damage from being done to the intending appellant, either
by levy and a writ of execution or by execution of the judgment in any other manner appropriate
to the nature of the judgment appealed from.’19
The determination of this appeal depends, in part, on the proper interpretation of the
order that issued against Mr Zuma in the main judgment. The starting point is to
determine the manifest purpose of the order. In interpreting a judgment or order, the
court’s intention is to be ascertained primarily from the language of the judgment or
order in accordance with the usual well-known rules relating to the interpretation of

18 South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A)
at 544H-545A.
19 Ibid at 545B.

documents.20 As in the case of a document, the judgment or order and the court’s
reasons for giving it must be read as a whole in order to ascertain its intention.21

[20] The order that issued against Mr Zuma in the main judgment is not one ad
factum praestandum, which called upon him to perform a certain act or refrain from
specified action, on pain of contempt. The high court set aside the summons in the
private prosecution and interdicted him from pursuing it on ‘substantially the same
charges as those advanced in the summons’. Having put a red line through the
prosecution in the main judgment, it restored the parties to the status quo ante in
ordering the implementation of its order pending the proposed appeal. In that, the high
court did no more than turn back the clock to that point in time immediately before the
institution of what it held was an unlawful prosecution.

[21] There seemed be an acceptance that if the appeal against the main judgment
were to ultimately succeed either before this Court or the Constitutional Court, then Mr
Zuma could simply pick up his private prosecution. The effect of the execution order
is that the private prosecution has been placed on hold pending Mr Zuma’s attempt at
an appeal. The only conceivable adverse consequence of the execution order on Mr
Zuma is that his private prosecution will be delayed until finalisation of the appeal
process. The private prosecution is plainly not urgent. Indeed, Mr Zuma instituted the
prosecution over a year after publication of the doctor’s note. There is no cognisable
harm to Mr Zuma. He will suffer no harm because the respondents remain under threat
of prosecution until such time as Mr Zuma’s appeals are exhausted. If Mr Zuma is
successful in the appeals, he can simply resume the private prosecution. In the
circumstances, there may as well be something to be said for the suggestion that the
matter falls to be dealt in terms of s 16(2)(a)(i) of the Act, according to which this Court
may dismiss an appeal where ‘the issues are of such a nature that the decision sought
will have no practical effect or result’.

[22] After due consideration, it is in any event doubtful that any of the issues in the
appeal, are truly deserving of the attention of this Court, much less engage its urgent

20 Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 304D-E.
21 Ibid at 304E; see also Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and
Others [2012] ZASCA 49; 2013 (2) SA 204 (SCA) para 13.

jurisdiction. No real questions of law are involved. The case raised no questions of
important principle. And, there were no other considerations that called for the
attention of this Court, either on an urgent basis or at all. Thus, although Mr Zuma had
an automatic right of appeal to this Court, he did not have to exercise it. His exercising
the right has the result that cases of greater complexity and which are truly deserving
of the attention of this Court have to compete for a place on the court roll with a case
which is not. The abridgement of the time periods prescribed by the rules of this Court
and the expedited hearing of the matter meant that Mr Zuma was able to steal a march
on those other litigants.

[23] A suspension of the high court’s orders and the continuation of the private
prosecution while Mr Zuma is attempting to appeal, will negate the orders issued and
result in the respondents forfeiting the substantive relief which that court ordered in
order to put a stop to the abuse. The premise of the argument advanced on behalf Mr
Zuma is that the purpose of the implementation order was to prevent the next
appearance of the respondents in the criminal court on 4 August 2023. But that is to
take too narrow a view of the matter. It was to: prevent their continuing appearance in
the criminal courts from time to time; avoid the delays and obstruction in Mr Zuma’s
criminal trial that will result from the continuation of the private prosecution; and, avoid
the private prosecution being used in an attempt to remove Mr Downer as the
prosecutor. The harm continues beyond 4 August 2023 and will persist pending
attempted appeals. Should this Court not dismiss the current appeal and confirm the
high court’s enforcement order, the respondents will once again have to appear as
accused persons on 1 November 2023, and on further dates in the future, pending the
progress up to the Constitutional Court of Mr Zuma’s applications for leave to appeal
against the main judgment.

[24] The mere decision to prosecute can have a far-reaching impact on an accused
person’s life. It should not be lightly made, because even if an accused is ultimately
acquitted, the harm already suffered could prove to be irreparable.22 As Howie P
pointed out in S v Western Areas Ltd and Others:

22 Doorewaard and Another v S [2020] ZASCA 155; [2021] 1 All SA 311 (SCA); 2021 (1) SACR 235
(SCA) para 80.

‘A criminal trial cuts across a number of an accused person’s fundamental rights. Attendance
at the trial, even if on bail, limits freedom of movement and even the right to liberty is curbed
to an extent.’23
On each occasion that the respondents are compelled to appear in the criminal dock,
their personal liberty is further inhibited and human dignity further eroded. The indignity
is compounded by the personal insults that they, and in particular Ms Maughan, has
to endure especially on social media. Mr Zuma shrugs that the social media abuse of
Ms Maughan is ‘an occupational hazard’ and ‘comes with the territory’. Nothing could
be further from the truth. What Mr Zuma fails to appreciate is that these violations
constitute a steady erosion not just of her liberty and dignity but will also likely
discourage other journalists from reporting on powerful individuals for fear of similar
reprisals. Guaranteeing the freedom of the press and public confidence in judicial
authority and the administration of justice is an ongoing process and requires constant
vigilance.

[25] Whilst the prosecution of crime is a matter of some constitutional importance to
the citizenry of this country, sight cannot be lost of the fact that this is not a public
prosecution by the NPA, an agency constitutionally created to prosecute in the public
interest, which is constitutionally bound to respect, protect, promote and fulfil the rights
in the Bill of Rights.24 Given the adversarial nature of criminal trials, prosecutors play
a critical role in our criminal justice system. It is for a prosecutor to evaluate the conduct
of the police and the strength of the case that will be actively presented to a court. It
is not the function of a prosecutor ‘disinterestedly to place a hotchpotch of
contradictory evidence before a court, and then [to] leave the court to make of it what
it wills’.25 There is nothing to suggest that any of those safeguards obtain here. In the
circumstances, to permit the continuation of a private prosecution pending an appeal
as to the lawfulness of that prosecution likely constitutes a direct violation of the
constitutional rights of the respondents.

[26] In the locus classicus, Solomon v Magistrate, Pretoria, it was held that where a
prosecutor undertakes a prosecution with an ulterior purpose, ‘the taking out of the

23 S v Western Areas Ltd and Others [2005] ZACA 31; [2005] 3 All SA 541 (SCA); 2005 (5) SA 214
(SCA); 2005 (1) SACR 441 (SCA) para 1.
24 Section 179(4) of the Constitution, 1996.
25 Van Der Westhuizen v S [2011] ZASCA 36; 2011 (2) SACR 26 (SCA) para 11.

summons is an abuse of the process of the court; if it was done not with the object of
having justice done to a wrongdoer, but in order to enable the prosecutor to harass
the accused or fraudulently to defeat his rights. . . The process of the Court, provided
for a particular purpose, would be used not for that purpose, but for the achievement
of a totally different object, namely for the oppression of an adversary’.26 In the context
of a private prosecution, the question is whether the prosecution was instituted for
some collateral purpose rather than with the object of having criminal justice done to
an offender.27

[27] In Nedcor v Gcilitshana, the court put it thus:
‘Ordinarily, the reasons and motives of a party for instituting legal proceedings are irrelevant.
However, “(w)hen . . . the court finds an attempt made to use for ulterior purposes machinery
devised for the better administration of justice, it is the duty of the Court to prevent such abuse.
But it is a power which has to be exercised with great caution, and only in a clear case.”.’28

[28] This is the clearest of cases. The private prosecution is part of the ‘Stalingrad
strategy’ announced by Mr Zuma’s counsel to Hugo J over a decade and a half ago,
when he said: ‘This is not like a fight between two champ fighters. This is more like
Stalingrad. It’s burning house to burning house.’29 It is further demonstrated by the
patent lack of substance to the charges; by the fact that Mr Zuma has clearly not
pursued the prosecution as would someone intent on obtaining a conviction; and, by
Mr Zuma’s identification of witnesses. It was common cause in the main application
that when Mr Zuma produced his prosecution docket, it showed that he had obtained
no statements from any of the witnesses whom he says he will call. The only
statements he has are those which already formed part of the police docket. The
witnesses he lists include Mr Breitenbach SC (who as the high court found, says that
Mr Downer did not communicate Mr Zuma’s medical information to Ms Maughan).

26 Solomon v Magistrate, Pretoria 1950 (3) SA 603 (T) (Solomon).
27 Phillips v Botha 1999 (2) SA 555 (SCA) at 565H (Phillips).
28 Nedcor Bank Ltd v Gcilitshana and Others 2004 (1) SA 232 (SE) (Nedcor Bank) at 241A-B, citing
Hudson v Hudson and Another 1927 AD 259 (Hudson) at 268.
29 Democratic Alliance v President of the Republic of South Africa and Others; Economic Freedom
Fighters v State Attorney and Others [2018] ZAGPPHC 836; [2019] 1 All SA 681 (GP) para 11.

Further, it is vexatious and per se an abuse of process to institute proceedings that
are ‘obviously unsustainable’ as a certainty not merely on a balance of probability.30

[29] Mr Zuma’s attacks are directed not only at Mr Downer, but also at the NPA
itself. Mr Downer pointed out that Mr Zuma has consistently attacked and questioned
the credibility of the NPA as an institution. The harm to be avoided is thus not only to
Mr Downer personally, but also to him in his capacity as the prosecutor in Mr Zuma’s
case as well as to the State and to the administration of justice. In the case of Ms
Maughan, it bears emphasis that freedom of the press and the principle of open justice
are closely interrelated. Free speech goes hand in hand with open justice, which is a
fundamental principle of the common law. There is a necessary interdependence
between the court and the press. It has thus come to be accepted that the media,
reporting accurately and fairly on legal proceedings and judgments, make an
invaluable contribution to public confidence in the judiciary and, thus, to the rule of law
itself.31

30 MEC, Department of Co-operative Governance and Traditional Affairs v Maphanga 2021 (4) SA 131
(SCA) para 25. See also Holmes JA in African Farms and Townships Ltd v Cape Town Municipality
1963 (2) SA 555 (A) at 575.
31 As it was put in Van Breda v Media 24 Limited and Others; National Director of Public Prosecutions
v Media 24 Limited and Others [2017] ZASCA 97; [2017] 3 All SA 622 (SCA); 2017 (2) SACR 491 (SCA)
paras 9 and 10:
‘In R v Secretary of State for the Home Department Ex Parte Simms, Lord Steyn stated:
“Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well
recognised that it is also instrumentally important. It serves a number of broad objectives. First, it
promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J
(echoing John Stuart Mill), “the best test of truth is the power of the thought to get itself accepted in the
competition of the market”: Abrams v United States [1919] USSC 206; (1919) 250 US 616 at 630 per
Holmes J (dissent). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of
information and ideas informs political debate. It is a safety valve: people are more ready to accept
decisions that go against them if they can in principle seek to influence them. It acts as a brake on the
abuse of power by public officials. It facilitates the exposure of errors in the governance and
administration of justice of the country.”
The right of the media to gather and broadcast information, footage and audio recordings flows from s
16 of the Constitution. The right to freedom of expression is one of a “web of mutually supporting rights”
that holds up the fabric of the constitutional order. The right is not limited to the right to speak, but also
to receive information and ideas. The media hold a key position in society. They are not only protected
by the right to freedom of expression, but are also the “key facilitator and guarantor” of the right. The
media’s right to freedom of expression is thus not just (or even primarily) for the benefit of the media: it
is for the benefit of the public. In Khumalo v Holomisa, the Constitutional Court emphasised:
“In a democratic society, then, the mass media play a role of undeniable importance. They bear an
obligation to provide citizens both with information and with a platform for the exchange of ideas which
is crucial to the development of a democratic culture. As primary agents of the dissemination of
information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they
have a constitutional duty to act with vigour, courage, integrity and responsibility.”

[30] The harm asserted by the respondents, which was set out in some detail, is not
theoretical. It is real. The denial by Mr Zuma is ineffective. The private prosecution is
without any foundation in either fact (Mr Downer did not disclose Mr Zuma’s doctor’s
report to Ms Maughan and there was no breach of confidentiality or privacy) or law (no
cognisable offence has been committed, even if all of the facts alleged by Mr Zuma
are true). The respondents appearing as accused persons in an abusive private
prosecution will undeniably compromise public confidence in the courts and the
administration of justice.

[31] Finally, the question of jurisdiction is a foundational pillar upon which Mr Zuma’s
appeal rests: it is contended that he has excellent prospects of success in his appeal
against the main judgment because courts have held that a challenge to the title of the
private prosecutor must be raised in the criminal court, not in a civil court. But that
misses the point. Although the founding affidavit also makes the point that Mr Zuma
has not proved some injury that he individually suffered in consequence of the alleged
commission of the offence as required by s 7(1)(a) of the CPA,32 the primary basis of
the application to set aside the private prosecution was not that Mr Zuma lacked title
to prosecute; it is that the private prosecution is an abuse of process. Our courts have
repeatedly held, for more than 70 years, that a civil court will grant an interdict to set
aside a private prosecution if it is an abuse. The authorities are long-established and
clear both that a court has the power (and in fact a duty) to prevent an abuse of its
process and that this principle applies to proceedings in a civil court in relation to a
private prosecution which is irregular, vexatious or an abuse of the process of court.33
The proposition is trite. In its judgment in the main application, the high court dealt with
the authorities in this regard.

[32] More narrowly construed therefor, the issue in this appeal is whether Mr Zuma
should be permitted to continue the private prosecution while an application for leave

32 Section 7(1)(a) of the Criminal Procedure Act 51 of 1977 states that a private prosecution may only
be instituted and conducted by a private person ‘who proves some substantial and peculiar interest in
the issue of the trial arising out of some injury which he individually suffered in consequence of the
commission of the said offence’.
33 As to the underlying principle: Western Assurance Co v Caldwell’s Trustee 1918 AD 262; Hudson fn
28 above at 267-268. As to the application of the principle to private prosecutions see inter alia Solomon
fn 26 above at 607E to 608A; Van Deventer v Reichenberg 1996 (1) SACR 119 (C); Phillips fn 27 above
at 565E-565I; and, Nedcor Bank fn 28 above para 26-27.

to appeal or (if granted) an appeal is pending. For the reasons given, that question
falls to be answered against him. If the implementation orders are upheld, a potential
obstacle to the commencement of Mr Zuma’s trial will be removed. Those orders will
facilitate the expeditious commencement and management of his criminal trial. Mr
Zuma announced his intention to bring this appeal even before he had seen the high
court’s reasons for granting the execution order. This demonstrates that his decision
to approach this Court was not motivated by any dispassionate analysis of his
prospects of success in the light of the high court’s reasons. It is evident that Mr Zuma
filed his appeal within hours of the high court judgment being delivered, precisely, so
it would seem, to ensure that the respondents would have to appear in the dock on
the next day, 4 August 2023. This, despite the fact that any appearance on that day
would have been only for the sake of a postponement. Mr Zuma had little, if anything,
to gain by noting the appeal so speedily. All told, it is hard to resist the conclusion that
this appeal is itself an abuse of process.

[33] Costs remain: In the heads of argument filed with this Court, Mr Zuma alleges
bias on the part of the members of the high court. The allegation is scandalous. The
bias is said to arise from the attitude of the judges towards counsel and/or his client
and some of the inexplicable findings made. No explanation is given as to what it is
about the ‘attitude’ of the judges or which of them demonstrated bias toward either
counsel or Mr Zuma. It is a mere allegation, without any attempt to produce any
evidence to justify it. It is improper. As to the ‘inexplicable findings’, for the reasons set
out above, the findings of the high court can hardly be faulted. However, even if they
could, that does not give rise to a complaint of bias.

[34] In Zuma v Democratic Alliance and Another, where similar allegations of bias
were raised by Mr Zuma, it was stated:
‘The contention, absent any factual foundation, that all three judges who heard the matter had
left their judicial station, scandalises the court. If true, that all three either independently of
each other, or worse still acting in concert, would have renounced their judicial impartiality is
a most serious allegation. Imputing bias to a judicial officer should not lightly be made. Nor,
should the imputation of a political motive. This is not to suggest that courts are immune from

criticism, even robust criticism for that matter. But, the criticism encountered here falls outside
acceptable bounds.’34

[35] There is nothing on record to sustain the suggestion that the presiding judges
in this matter were biased or not open-minded, impartial or fair. The allegations were
made with a reckless disregard for the truth. And, whilst not advanced during oral
argument, they were not retracted. However, they ought not to have been made at all.
Moreover, the previous admonition of this Court appears to have fallen on deaf ears.
The propensity to accuse judicial officers of bias, absent a proper factual foundation,
is plainly deserving of censure. The respondents argue that Mr Zuma should be
penalised with a punitive costs order as a mark of this Court’s displeasure and to
vindicate the integrity of the high court and the judiciary. A submission with which I
cannot but agree.

[36] In the result, the appeal must fail and it is accordingly dismissed with costs,
including those of two counsel, to be paid on the attorney and client scale.

________________
V M PONNAN
JUDGE OF APPEAL

34 Zuma v Democratic Alliance and Another [2021] ZASCA 39; [2021] 3 All SA 149 (SCA); 2021 (5) SA
189 (SCA) para 49.

Appearances

For the appellant:
DC Mpofu SC, BN Buthelezi, K Pama-Sihunu

and Z Mshololo
Instructed by:
Ntanga Nkuhlu Inc., Johannesburg

Peyper Botha Attorneys, Bloemfontein

For the first respondent:
G Budlender SC and H Rajah
Instructed by:
The State Attorney, Pietermaritzburg

DPP, Bloemfontein

For the second respondent:
T Ngcukaitobi SC and B Winks
Instructed by:
Willem de Klerk Attorneys, Johannesburg

Honey Attorneys, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

13 October 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Jacob Gedleyihlekisa Zuma v William John Downer and Another (Case no 788/2023) [2023] ZASCA
132 (13 October 2023)
Today the Supreme Court of Appeal (SCA) dismissed an appeal by Mr Jacob Zuma appeal with costs,
including those of two counsel, on a punitive scale.

Mr Zuma is facing multiple charges of corruption, fraud, racketeering and money laundering for which
he first appeared in court on 29 June 2005, although his trial has still not commenced. The first
respondent, Mr William Downer, has served as the lead prosecutor for the National Prosecuting
Authority (NPA). In 2021, when Mr Zuma finally had to plead to the charges, he raised a special plea in
terms of s 106(1)(h) of the Criminal Procedure Act 51 of 1977 with the Kwazulu-Natal Division of the
High Court, Pietermaritzburg (the high court) alleging that Mr Downer is not a fit person to prosecute
him. This application was dismissed. So too, were his applications for leave to appeal in the high court
and the SCA, along with his application to the President of the SCA for a reconsideration in terms of s
17(2)(f) of the Superior Courts Act 10 of 2013 (the Act) and his two applications thereafter to the
Constitutional Court.

On 5 September 2022, Mr Zuma instituted a private prosecution in the high court against Mr Downer,
as also, against the second respondent, Ms Karyn Maughan, a senior legal journalist, who has been
reporting on the criminal investigation, his criminal indictment and the numerous legal challenges and
proceedings for well on 20 years. Mr Downer and Ms Maughan (collectively referred to as the
respondents) applied separately to the high court to have the private prosecution set aside as an abuse
of process of the court. Their applications were consolidated and heard on 10, 20 and 22 March 2023,
before a specially constituted court of three judges who, on 7 June 2023, set aside the criminal
summons against the respondents, interdicted the private prosecution and ordered Mr Zuma to pay
costs on a punitive scale (the main judgment). Mr Zuma applied for leave to appeal the main judgment,
which was dismissed by the high court on 11 September 2023. During the hearing of the appeal at the
SCA, counsel for Mr Zuma informed the Court that a petition, in relation to the main judgment, will be
filed with the SCA and further to the Constitutional Court should it fail at the SCA.

Both respondents applied to the high court in terms of s 18(1) read with s 18(3) of the Act for an order
that the setting aside of the private prosecution is to remain in force pending the outcome of any appeal
against the main judgment. On 3 August 2023, the high court made such an order (the execution order).

Exercising his automatic right of appeal under s 18(4)(ii) of the Act, Mr Zuma filed a notice of appeal
with the SCA against the execution order on 14 August 2023. The matter was enrolled, in accordance
with s 18(4)(iii), as one of urgency for hearing on Thursday 28 September 2023.

The issue before the SCA was whether Mr Zuma should be permitted to continue the private
prosecution while an application for leave to appeal or (if granted) an appeal by him was pending.

The SCA held that the central purpose of the private prosecution is to enable Mr Zuma to have Mr
Downer removed as the prosecutor on the basis that he (Mr Downer) stands accused in the private
prosecution. The SCA stated that the facts of the case demonstrated that the private prosecution of Mr
Downer was an abuse of the process of the court and instituted with an ulterior purpose, holding that
the private prosecution is a patently hopeless and unsustainable case as the alleged disclosure of
confidential medical information to Ms Maughan was made by Adv Breitenbach SC and not Mr Downer.

With regards to Ms Maughan, the SCA reiterated that the note issued by Mr Zuma’s doctor (upon which
the private prosecution rests) was not intended to be confidential, did not contain any confidential
information and its disclosure did not constitute an actionable violation of Mr Zuma’s rights.

The SCA was of the view that for the high court to have allowed the suspension of the main judgment
pending an appeal would have been mutually incompatible with the conclusion reached by it sthat the
private prosecution of the respondents constituted an abuse and that if Mr Zuma’s private prosecution
was indeed an abuse of the process as the high court held, then it followed that allowing it to be enforced
pending an appeal would prolong and perpetuate that abuse.

The SCA found that the private prosecution is plainly not urgent as the effect of the execution order was
that the private prosecution would be placed on hold pending Mr Zuma’s attempt at an appeal and that
the only conceivable adverse consequence of the execution order on Mr Zuma is that his private
prosecution will be delayed until finalisation of the appeal process. The SCA further stated that a
suspension of the high court’s orders and the continuation of the private prosecution while Mr Zuma is
attempting to appeal, will negate the orders issued and result in the respondents forfeiting the
substantive relief which that court ordered in order to put a stop to the abuse.

The SCA highlighted that the mere decision to prosecute can have a far-reaching impact on an accused
person’s life, because, even if an accused is ultimately acquitted, the harm already suffered could prove
to be irreparable. It held that the harm asserted by the respondents is real and that the private
prosecution was without any foundation in either fact or law and that the respondents, appearing as
accused persons in an abusive private prosecution, would undeniably compromise public confidence
in the courts and the administration of justice.

In the result, the SCA dismissed the appeal with costs including those of two counsel on a punitive
scale.
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