Jacob Gedleyihlekisa Zuma v William John Downer and Another

Jacob Zuma, former President of South Africa, has been facing corruption, fraud, racketeering and money laundering charges since 2005. William Downer has been the lead prosecutor throughout. In 2021, Zuma raised a special plea for Downer's removal, which was dismissed by Koen J. After exhausting appeals on that matter, on 5 September 2022, Zuma instituted a private prosecution against Downer and Karyn Maughan (a senior legal journalist) alleging breach of confidentiality under section 41(6) of the National Prosecuting Act. On 7 June 2023, a three-judge High Court held the private prosecution was an abuse of process instituted for ulterior purposes and set it aside. The High Court then granted an execution order on 3 August 2023 under section 18(3) of the Superior Courts Act, directing that the setting aside of the private prosecution remain in force pending any appeal. Zuma exercised his automatic right of appeal under section 18(4)(ii) against the execution order.

• Whether the High Court correctly ordered execution of its judgment setting aside the private prosecution pending appeal under section 18(3) of the Superior Courts Act
• Whether a private prosecution instituted for ulterior purposes constitutes an abuse of process
• Whether allowing a private prosecution found to be abusive to continue pending appeal would perpetuate that abuse
• Whether the civil court had jurisdiction to set aside a private prosecution on grounds of abuse of process
• Whether the requirements for suspension of execution pending appeal were satisfied

The appeal was dismissed with costs, including costs of two counsel, to be paid on the attorney and client scale (punitive costs).

Where a court has found that a private prosecution constitutes an abuse of process instituted for ulterior purposes, allowing that prosecution to continue pending appeal would perpetuate the abuse and undermine the court's inherent jurisdiction to control its own process. In such circumstances, a court may properly order under section 18(3) of the Superior Courts Act that its judgment setting aside the prosecution be executed pending appeal. The suspension of such an order is not necessary to prevent irreparable harm to the appellant where the appellant can resume the prosecution if ultimately successful on appeal, and where the continuation of the prosecution would cause ongoing harm to the administration of justice, the integrity of the prosecutorial system, and the rights of the accused persons in the private prosecution. Civil courts have established jurisdiction to set aside private prosecutions that are abusive, vexatious or instituted for ulterior purposes, regardless of whether those challenges could also be raised in the criminal court.

Ponnan JA made several significant observations beyond the strict ratio: (1) The scale of litigation by Zuma justifiably attracts the epithet 'Stalingrad', with the judgment documenting the extensive litigation history over 18 years. (2) Zuma's automatic right of appeal under section 18(4) should not have been exercised, as the case raised no real questions of law or important principles deserving urgent attention from the SCA, and his exercise of that right resulted in cases of greater merit being displaced on the court roll. (3) The appeal itself appeared to be an abuse of process, filed within hours of judgment to ensure the respondents would have to appear in the dock the next day. (4) The mere decision to prosecute has far-reaching impact on an accused person's life and should not be lightly made. (5) The Court strongly criticized unfounded allegations of judicial bias as scandalous and deserving of censure, noting this was not the first time Zuma had made such allegations. (6) Regarding Ms Maughan, the Court emphasized that social media abuse of journalists is not 'an occupational hazard' and that protecting press freedom requires constant vigilance. (7) Private prosecutions lack the constitutional safeguards that apply to public prosecutions by the NPA.

This case significantly clarifies the application of section 18 of the Superior Courts Act regarding execution pending appeal. It confirms that civil courts retain jurisdiction to interdict abusive private prosecutions and that such orders may be executed pending appeal where continuation would perpetuate the abuse. The judgment reinforces protections against vexatious private prosecutions instituted for ulterior purposes, particularly where they obstruct the criminal justice system. It emphasizes the importance of protecting press freedom from retaliatory prosecutions by powerful individuals. The case provides important guidance on when execution orders are appropriate despite automatic suspension rules, particularly where the underlying finding is one of abuse of process. The judgment also addresses the serious consequences of making unfounded allegations of judicial bias.