Former President Jacob Zuma
Photo by: Reuters
It was a day of rigorous arguments in the Pietermaritzburg High Court in KwaZulu-Natal as the Helen Suzman Foundation, media bodies and others applied to become friends of the court (amicus curiae) in relation to former president Jacob Zuma's private prosecution of Billy Downer and legal journalist Karyn Maughan.
On Thursday, several lawyers appeared before Judge Sidwell Mngadi, who was hearing argument to determine whether various bodies - including Democracy in Action, Media Monitoring Africa Trust, and the SA National Editors' Forum (Sanef) - should be entered as friends of the court.
Seasoned lawyer, Kate Hofmeyr, representing the Helen Suzman Foundation, said there were ulterior motives to Zuma's private prosecution.
"It is pursued by a criminally accused, Zuma, prosecuting his own prosecutor, Downer, while his criminal prosecution is pending."
The foundation wants to play a role in the civil case to set aside the summons on Downer, Hofmeyr added.
She said Zuma's action implicates prosecutorial independence "and that is relevant to the abuse of the process".
"The purpose is the misuse of prosecution for political ends, not [the] ends of the proper prosecutorial process." Hofmeyer said.
In opposing the foundation's application, the majority of Zuma's court papers attack the foundation, instead of addressing prosecutorial independence, said Hofmeyr.
"He spends 30 of 50 pages telling the court why the Helen Suzman Foundation is wrong. We say that very fact is reason to admit us. We say there are issues of real debate that deserve proper and full ventilation."
Hofmeyr said that, if the foundation was admitted as a friend of the court, on the basis of four documents Zuma used to initiate prosecution, "it can be shown there is another ulterior purpose, and that is to pursue political ends".
"The Helen Suzman Foundation says there are considerations on prosecutorial independence in admitting us as friends of the court. There is a factual context."
Representing Sanef, Media Monitoring Africa Trust and Campaign for Free Expression, Max du Plessis called on Mngadi to consider attacks on female journalists.
He raised the issue of Strategic Lawsuits Against Public Participation (Slapp).
Slapp suits are defined as an abuse of court processes and are relied on to use court proceedings (or even the threat of such proceedings) in order to intimidate, distract from and silence public criticism.
Du Plessis said women were particularly vulnerable to this in recent years.
"Women are entitled to be treated differently to men because they are particularly vulnerable. The number of abuses and threats to female journalists, particularly where they report on corruption and are threatened to a form of Slapp lawsuit."
He said the private prosecution case was a new concept and that higher courts were open to friends of the court in these scenarios.
"The Constitutional Court has encouraged amici applications, where there are novel questions, as they can make important arguments different to those of other parties."
Advocate Vuyani Ngalwana, representing Democracy in Action, argued that a friend of the court must make a difference to any case it joins.
"They must materially affect the outcome of the case. We seek to weigh Maughan's right to freedom and free speech, and Zuma's right to freedom of privacy and dignity."
He argued that the media bodies attempting to be friends of the court favoured Maughan.
"They are responding [to] her, as the person, in both their media statements and court papers. They are not supporting freedom of expression," he argued.
In opposing the application, advocate Dali Mpofu said there was a lack of jurisdiction for the high court to hear the matter.
"There is no way you can grant these applications. Your lordship cannot admit [friends of the court] where three judges are going to hear the full matter with Downer and Maughan in March. Those judges will be entitled to overrule because there are three judges."
Mngadi postponed the matter to a date yet to be confirmed.