Maughan v Zuma and Others (12770/22P;13062/22P) [2023] ZAKZPHC 59; [2023] 3 All SA 484 (KZP); 2023 (5) SA 467 (KZP); 2023 (2) SACR 435 (KZP) (7 June 2023)

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[2023] ZAKZPHC 59
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Maughan v Zuma and Others (12770/22P;13062/22P) [2023] ZAKZPHC 59; [2023] 3 All SA 484 (KZP); 2023 (5) SA 467 (KZP); 2023 (2) SACR 435 (KZP) (7 June 2023)

FLYNOTES:
CRIMINAL – Private prosecution – Abuse of process –
Mr Zuma’s private prosecution of journalist
and lead
prosecutor – Mr Zuma coming to court with “unclean
hands” – Instituted prosecution for ulterior
purpose –
SLAPP suits against journalists warranting protection by courts –
Summons in respect of both applicants
was defective –
Summons set aside and Mr Zuma interdicted from reinstituting or
from taking any further steps pursuant
to the private prosecution.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO. 12770/22P
In
the matter between:
KARYN
MAUGHAN
Applicant
and
JACOB
GEDLEYIHLEKISA ZUMA

Respondent
CAMPAIGN
FOR FREE EXPRESSION
First
amicus
MEDIA
MONITORING AFRICA TRUST
Second
amicus
SOUTH
AFRICAN NATIONAL EDITORS’
FORUM                             Third
amicus
DEMOCRACY
IN ACTION NPC

Fifth
amicus
and
CASE
NO. 13062/22P
In
the matter between:
WILLIAM
JOHN DOWNER
Applicant
and
JACOB
GEDLEYIHLEKISA ZUMA

Respondent
THE
HELEN SUZMAN FOUNDATION

Fourth
amicus
ORDER
A:
Case No: 12770/22P
1.
The summons issued out of the KwaZulu-Natal Division of the
High
Court, Pietermaritzburg on 5 September 2022, under case number
CC52/2022P, for the purpose of instituting a private prosecution

against the Applicant by the Respondent is set aside.
2.
The Respondent is interdicted and restrained from reinstituting,

proceeding with, or from taking any further steps pursuant to, the
private prosecution referred to in paragraph 1.
3.
The costs of this application are to be paid by the Respondent
on an
attorney and own client scale, such costs to include the costs of two
counsel where so employed.
B:
Case No: 13062/22P
1.
The summons, by which the Respondent instituted a private prosecution

of the Applicant in this court in Case CC52/2022P, is set aside.
2.
The Respondent is interdicted from pursuing any private prosecution

of the Applicant on substantially the same charges as those advanced
in the summons set aside.
3.
The Respondent is ordered to pay the Applicant’s costs
on the
scale as between attorney and own client, such costs to include the
costs of two counsel where so employed.
JUDGMENT
THE
COURT (KRUGER J, HENRIQUES J et MASIPA J)
Introduction
[1]
In both Case Number 12770/22P and Case Number 13062/22P, the
Applicants,
Karyn Maughan (‘Maughan’) and William John
Downer (‘Downer’) respectively, seek the following
orders:
(a)
the setting aside of the summons under case number CC52/2022P issued
out
of the KwaZulu-Natal Division of the High Court,
Pietermaritzburg, on 5
th
September 2022, for the purpose
of instituting a private prosecution against the Applicants, by the
Respondent;
(b)
interdicting and restraining the Respondent from re-instituting,
proceeding
with or from taking any further steps pursuant to the said
private prosecution; and
(c)
costs of the applications, on an attorney and own client scale,
including
the costs of two counsel each employed by the Applicants.
[2]
On 10
th
March 2023 an order was sought and obtained, by
consent of all the parties, for the following institutions to be
admitted as
amici
curiae;
(a)
Campaign for Free Expression;
(b)
Media Monitoring Africa Trust;
(c)
South African National Editors’ Forum;
(d)
The Helen Suzman Foundation; and
(e)
Democracy in Action NPC.
[3]
It must however be recorded that the applications by the entities
listed
in (a) to (d)
supra
, were opposed by the Respondent.
It was at the eleventh hour that the Respondent decided to consent to
the admission of the
aforesaid parties as
amici curiae
.
The
Parties
[4]
Ms Maughan is a Senior Legal Journalist employed by News24.  She
has been reporting on the criminal investigation of the Respondent by
the Scorpions; his subsequent indictment; and the numerous
legal
challenges and interlocutory proceedings relating to the Respondent’s
prosecution, for almost 20 years.
[5]
Mr Downer is a Senior Counsel and Senior State Advocate stationed at
the
offices of the National Prosecuting Authority, Cape Town.
[6]
The Respondent is a former President of the Republic of South
Africa.
He is also the private prosecutor against both
Applicants.
The
amici
[7]
The Campaign for Free Expression (CFE) is a not for profit civil
society
organisation described as an institute ‘dedicated to
protecting and expanding the right to free expression for all and
enabling
everyone to exercise the right to the full regardless of the
reason, form or medium, whether this be by speaking out, protesting,

arguing or whistle blowing.’
[8]
Media Monitoring Africa Trust (MMA), a not for profit organisation,
has
been described as an institution that ‘has consistently
worked to promote ethical and fair journalism by advocating for
freedom
of expression and supporting the responsible free flow of
information to the public on matters of public interest. In doing so,

MMA acts as a watchdog that seeks to enable an engaged and informed
citizenry, and promotes a culture where the media and the powerful

respect human rights to encourage a just and fair society.’
[9]
The South African National Editors Forum (SANEF) consists of editors,
journalists and journalism trainers.  The organisation ‘is
committed to championing South Africa’s hard-won freedom
of
expression and promoting quality, ethics and diversity in the South
African media.’
[10]
The Helen Suzman Foundation (HSF) is a ‘non-governmental
organisation whose objectives
are to defend the values and
institutions that underpin our constitutional democracy and to
safeguard the rights of vulnerable
persons who are unable to utilise
the ordinary political process in order to do so.’
[11]
Democracy in Action (DIA) is described as a ‘not-for-profit
company, non-profit organisation
and civil society organisation, the
mandate and purpose of which is to advance, support and defend
democratic and constitutional
principles and values in the Republic
of South Africa, and to support constitutional democracy.’
[12]
The First, Second, Third and Fifth
amici
have been admitted as
such only in respect of the application instituted by Maughan.
The Fourth
amicus
has been admitted in respect of the
application instituted by Downer.
Background
[13]
Following a criminal complaint by the Respondent dated 21
st
October 2021, the Director of Public Prosecutions, KwaZulu-Natal
Division, on 6
th
June 2022, issued a certificate in terms
of s 7(2) of the Criminal Procedure Act, Act 51 of 1977 (the CPA).
This is commonly referred
to as a ‘
nolle prosequi
’.
The contents of the said certificate are important and provide:
‘
CERTIFICATE IN TERMS
OF SECTION 7 (2) OF ACT 51 OF 1977
I,
ELAINE ZUNGU, duly appointed Director of Public Prosecutions,
KwaZulu-Natal hereby certify that I have seen all the statements
and
affidavits on which the charge particularized below is based and that
I decline to prosecute at the instance of the State.
SUSPECT:

WILLIAM JOHN DOWNER
COMPLAINANT:

JACOB GEDLEYIHLEKISA ZUMA
ALLEGED
CRIME:

CONTRAVENTION OF SECTION 41(6) READ WITH SECTION 41 (7) OF THE
NATIONAL PROSECUTING ACT 32 OF 1998
DATE
OF ALLEGED CRIME:

09
AUGUST 2021
POLICE
REFERENCE:

PMB CAS 309/10/21
This
certificate is issued to
JACOB GEDLEYIHLEKISA ZUMA
SIGNED
at PIETERMARITZBURG on this
06
day of June
2022.
’
[14]
As a result, the Respondent, on the 5
th
September 2022 and
in his capacity as ‘the private prosecutor’ caused a
‘summons in a criminal case’ to
be issued and served on
the Applicants.  The charges against the Applicants are as
follows:
(a)
in respect of Accused 1 (Downer):
‘
THE
CHARGE(S)
:
IN
RESPECT OF ACCUSED 1
1.1
Contravening Section 41(6)(a), read with section 41(7) of Act No. 32
of 1998.
(Unauthorised
disclosure of information) (Only in respect of Accused 1)
1.2
Contravening Section 41(6)(b), read with section 41(7) of Act No. 32
of 1998.
(Unauthorised
disclosure of the contents of a document); (Only in respect of
Accused 1)’
(b)
in respect of Accused 1 (Downer) and / or Accused 2 (Ms Maughan):
‘
IN
RESPECT OF ACCUSED 1 AND/OR ACCUSED 2
2.1
Contravening Section 41(6)(b), read with section 41(7) of Act No. 32
of 1998.
(Unauthorised disclosure
of the contents of a document); (In respect of both Accused 1 and
Accused 2)
2.2
Accomplice to the breach of section 41(6)(a) and/or (b), read with
section 41(7) of Act
No. 32 of 1998 (Only in respect of Accused 2)’
[15]
In a nutshell, the charges levelled against Downer are that:
(a)
on the 9
th
to 10
th
August 2021, he sanctioned
the disclosure by Advocate Andrew Breitenbach SC to Maughan of a
letter marked ‘Medical Confidential’
written by Brigadier
General (Dr) Mdutywa (‘Mdutywa’) of the South African
Military Health Service; and
(b)
between the 4
th
and 13
th
June 2008, Downer
disclosed official information to a journalist, namely Mr Sam Sole.
[16]
In respect of Maughan, it is alleged that:
(a)
she disclosed to News24 readers and / or the general public, without
the
requisite permission, the contents of the aforesaid letter
written by Mdutywa; and
(b)
that she facilitated, aided and / or abetted Downer in the commission
of the crime of contravening s 41(6)(a) and / or (b) of the National
Prosecuting Authority Act 32 of 1988 (NPA), when Downer sanctioned
Mr
Breitenbach to disclose the said letter to her, without the requisite
permission.
[17]
In response thereto, the applications, set out in paragraph 1
supra
,
were instituted.
[18]
Maughan seeks to set aside the summons on three grounds, viz:
(a)
that the Respondent, Mr Zuma, has not obtained a
nolle prosequi
certificate from the Director of Public Prosecutions entitling him to
institute the private prosecution against her;
(b)
that Mr Zuma lacks standing to institute the private prosecution
under
s 7(1) of the CPA 51 of 1977 (‘CPA’); and
(c)
that the summons is a gross abuse of court process.
[19]
Downer has alleged that:
(a)
the private prosecution is unsustainable;
(b)
the charge of unauthorised disclosure to Mr Sole is legally and
factually
groundless;
(c)
Mr Zuma does not satisfy the requirements for standing in terms of s
7(1)(a)
of the CPA; and
(d)
the private prosecution is an abuse of process.
[20]
The papers filed in this matter are extensive
and the argument spanned two full court days. This court was favoured
with extensive
written submissions by the
amici
as well as the applicants and the respondent who raised extensive
argument in relation to the merits of the matter. After having

carefully considered all the oral and written submissions, we are of
the view that there are several matters raised which are dispositive

of the application and we propose to only focus on those in this
judgment.
[21]
There are several points
in
limine
raised by Downer in his
application as well as by the Respondent in opposition to the relief
sought specifically by Downer. We
propose to deal with these first
and thereafter turn to the individual grounds advanced.
(a)
Urgency
[22]
In his opposing affidavit, the Respondent has questioned the
Applicant’s (Maughan’s)
launching of the application on
an urgent basis.  However, it appears that this objection to the
proceedings is not being
persisted with.  Indeed, it has not
been raised in the Heads of Argument, nor has counsel for the
Respondent, Mr
Mpofu
SC, raised this issue in his submissions
before us.
[23]
In any event, a consideration of the chronology of the history
of the proceedings
reveals that the reasons for launching the
application on an urgent basis were justifiable.  The summons
was issued on the
5
th
September 2022 and called upon
Maughan to appear at the Pietermaritzburg High Court at 09h30 on the
10
th
October 2022 in connection with the charges set out
in the Indictment. This application was launched on the 21
st
September 2022 with the object of having the summons set aside.
The matter was duly enrolled to be heard in court on the
10
th
October 2022.  Given the limited time period within which to
act, there can be no criticism levelled against the application
being
launched on an urgent basis. Accordingly, there is no merit in this
point
in limine
.
(b)
Jurisdiction and / or prematurity
[24]
This point
in limine
has been raised by the Respondent in
respect of both the applications launched by Maughan and Downer.
The Respondent contends
that this court lacks jurisdiction to
determine the various grounds raised in the applications for the
relief sought.  The
further argument was advanced that any
challenge to the title of the Respondent to bring a private
prosecution should be raised
by way of a special plea in the criminal
court.  Reliance is had on the provisions of s 106(1)(h) of the
CPA which mentions
that a plea of no title by a private prosecutor
can be pleaded.
[25]
Relying on
the decision of Wallis JA in
Moyo
and Another v Minister of Justice and Constitutional Development and
Others
;
Sonti
and Another v Minister of Justice and Correctional Services and
Others
[1]
the Respondent contends that it is incompetent for the Applicants to
raise their aforementioned complaints in a civil court.
Wallis
JA, at paragraph 157, raised the following question:
‘
In
Section 35 the Constitution guarantees a range of rights to arrested,
detained and accused persons.  Section 35(3) guarantees
to all
accused persons the right to a fair trial.  That is secured in
practice by the provisions of the Criminal Procedure
Act 51 of 1977
(the ‘CPA’).  The Appellants do not seek to impugn
the provisions of the CPA in any way, yet they
are seeking to assert
their fair trial rights before a civil court.  That should give
pause for thought.  Why are issues
germane only in the context
of criminal proceedings being canvassed and determined in civil
proceedings and not in the constitutionally
complying forum, and in
accordance with the constitutionally compliant statute, provided for
the adjudication of criminal cases?’
[26]
This question is clearly rhetorical and was not answered by the
learned Judge in the said
judgment.  Mr
Mpofu
SC, has
however urged us to accept this judgment and in particular the
passage quoted aforesaid, as authority for the proposition
that
matters germane to the criminal courts cannot be brought before a
civil court.  He has also argued that this court is
bound by the
decision of Wallis JA.
[27]
This
question was recently considered by the full court in
President
of the Republic of South Africa v J G Zuma and Others
[2]
.
The court, relying essentially on the decision of
Solomon
v Magistrate, Pretoria
[3]
,
rejected the argument advanced by the Respondent.  At paragraphs
[7] and [8], the court held:
‘
[7]
Since then the proposition has been affirmed in the Constitutional
Era in
van Deventer v Reichenberg
1996 (1) SACR 119
(C),
Nedcor Bank Ltd v Gciltshana
2004(1) SA232 (SECLD) and in
Nundalal v DPP
, KZN [2015] ZAKZPHC 25 (8 May 2015).  It
therefore plain (
sic
) that, upon such authority, section
106(h) of the CPA cannot be construed to be the exclusive route by
which a person aggrieved
by a private prosecution can challenge a
title of the private prosecutor.  Moreover, the proposition
advanced about avoiding
cross-contamination between the civil courts
and civil process and the criminal courts and criminal process is
overstated.
In truth there is no substantive distinction
between a criminal court and a civil court – there is only one
court and the
streaming of criminal cases and of civil cases to
different Judges is merely an organisational convenience.  There
are not
distinct jurisdictional competences.  Ancillary thereto
it follows that the process of such a court is also seamless.

No question can arise over a trespass into the work of another court
with a distinct jurisdiction.  It is in these respects
that the
present case does not evoke the suspicion poised by Wallis JA in the
Moyo
and
Sonti
case.
[8]
Accordingly, to sum up, the notion that the only route of relief a
party can invoke
to contest the title of a private prosecutor is to
raise the question of title as a plea as mentioned in s 106(h) of the
CPA is
misconceived.  In any event the very appearance of the
Applicant before the criminal court is what is sought to be prevented

by the relief sought in this urgent application, premised on the
contention that to appear in the criminal court per se, would
be to
submit to an unlawful intrusion on the rights to freedom of the
Applicant, if the private prosecution is unlawful for want
of proper
authority.’
[28]
Mr
Mpofu
SC has
argued that the aforesaid decision is not binding on this court.
At the hearing of the matter we were advised that
the judgment is the
subject matter of an appeal and that there is no Supreme Court of
Appeal authority nor Constitutional Court
Authority which would bind
this court to accept the conclusions reached in the aforementioned
case of the
President
of the Republic of South Africa v J G Zuma and Others
.
This submission however fails to take cognisance of the decision of
the Supreme Court of Appeal in
Phillips
v Botha
[4]
where the court followed the decision of
Solomon
v The Magistrate, Pretoria
(
supra
).
It also overlooks the recent constitutional court decision of
Mineral
Sands Resources (Pty) Ltd and Others v Christine Reddell and
Others
[5]
which also cited, with approval, the decision of
Phillips
v Botha
.
[29]
We agree with the findings of the courts in the aforesaid judgments
and conclude that this
court does not lack jurisdiction to entertain
the applications launched by both Maughan and Downer.
Accordingly, this point
in limine
has no merit and is to be
rejected.
(c)
State Attorney’s Authority
[30]
The Respondent has averred that as Downer was cited in his personal
capacity and because
his alleged criminal conduct was performed for
personal reasons and not in the furtherance of his mandate as a
prosecutor, the
State Attorney had no authority to represent him
(Downer) in this application.  The Respondent has also called
upon Downer
to provide proof of such authority in terms of the
provisions of Rule 7 of the Uniform Rules of Court.
[31]
At the outset it is noted that the Respondent has not complied with
the provisions of Rule
7.  Rule 7 provides:
‘
.
. . the authority of anyone acting on behalf of a party may, after 10
days after it has come to the notice of a party that such
person is
so acting, or with the leave of the court on good cause shown at any
time before judgment, be disputed, . . .’
[32]
The Respondent, Mr Zuma, has been aware, since the 27
th
September 2022, that the State Attorney is acting on behalf of Downer
in this application.  It was only on the 31
st
January
2023, in his answering affidavit, that this challenge was raised.
This was clearly beyond the 10 day period referred
to in Rule 7.
No explanation for the delay has been furnished nor is there an
application before us to condone the late request.
The
objection therefore is not in accordance with Rule 7 and has no
effect.
[33]
In any event and in answer to the challenge, Downer has, in reply,
provided proof that
the NPA had instructed the State Attorney to act
on his behalf in this matter.
[34]
In the
Respondent’s Heads of Argument and indeed in argument before
us, Mr
Mpofu
SC has relied on the decision of
Zuma
v Democratic Alliance and Another
[6]
in support of his submission
that the State Attorney has no authority to represent Downer.
The reliance on this decision
is misplaced.  The decision relied
upon by Mr
Mpofu
SC made it clear that the State Attorney is not authorised to
outsource its functions to a private Attorney at State’s
expense.
In the application before us the State Attorney has
not outsourced its functions to a private Attorney and is indeed
representing
Downer itself. Consequently, this point
in
limine
falls to be dismissed.
(d)
Non-joinder
[35]
In his answering affidavit in the application brought by Downer, the
Respondent has averred
that Maughan has a direct and substantial
interest in the outcome of the Downer application and ought
accordingly to have been
joined as of necessity.  It has further
been submitted that as she has not been joined, this is fatal to the
application and
that the application ought to be dismissed.
[36]
The record reveals that the application launched by Downer was served
on Maughan’s
Attorneys on the 27
th
September 2022.
Maughan has elected not to participate in the proceedings.
[37]
The Respondent’s reliance on this point
in limine
must
also fail.
[38]
We turn now to consider each of the grounds raised by the Applicants
as well as the Respondent’s
response thereto.
(a)
The absence of a Nolle Prosequi
Certificate
in respect of the private prosecution of Ms Maughan
[39]
S 7(2)(a) of the CPA provides:
‘
(2)
(a)
No private prosecutor under this section shall obtain the process of
any court for
summoning any person to answer any charge unless such
private prosecutor produces to the officer authorised by law to issue
such
process a certificate signed by the Attorney-General that he has
seen the statements or affidavits on which the charge is based
and
that he declines to prosecute at the instance of the State.’
[40]
The Respondent relies on two
nolle prosequi
certificates in
support of his private prosecution of Maughan.  The first
certificate was issued on the 6
th
June 2022 and has
already been referred to earlier in this judgment (paragraph [13]
supra
). It is readily apparent from this certificate that the
‘suspect’ named is Downer and not Maughan.  This, in
our
view, is also clearly evident from the reading of the
Respondent’s ‘Sworn Statement in Support of Criminal
Complaint’
(
sic
).  The only reference to Maughan is
that the alleged unauthorised disclosure of the said ‘Medical
Report’ was
made to her.  It is on this basis that the
Respondent contends that ‘Upon a proper contextual and holistic
interpretation’,
the aforesaid
nolle prosequi
certificate applies to Maughan as well.  No further submissions
have been made in support of this contention.
[41]
In a letter dated 25
th
October 2022, the Director of
Public Prosecutions confirmed to the Respondent’s Attorneys
that the
nolle prosequi
certificate did not apply to Maughan.
The content of that letter reads as follows:
‘
Dear
Mr Ntanga
RE:
NOLLE PROSEQUI – PIETERMARITZBURG CAS 309/10/21
YOUR
REF: M. NTANGA/Z0016/21 DATED 30 SEPTEMBER 2022 REFERS
When
I took the decision in respect of the aforementioned matter the
suspect under consideration, as expressed by the complainant,
was Mr
Downer.
Based
on the investigations conducted and the evidence in the docket I
declined to prosecute Mr Downer.
Ms
Maughan was not contemplated as a suspect but rather only a witness.
If
I am now required to decide whether or not to prosecute her, I
require full investigations to be conducted before I make such

decision.’
[42]
We accordingly agree with the submission that the
nolle prosequi
certificate produced by the Respondent when he issued summons against
Maughan, was not issued in respect of a criminal case against

Maughan.
[43]
On the 21
st
November 2022, the Director of Public
Prosecutions issued a second
nolle prosequi
certificate, the
certificate reads as follows:
‘
CERTIFICATE IN TERMS
OF SECTION 7 (2) OF ACT 51 OF 1977
I,
ELAINE ZUNGU, duly appointed Director of Public Prosecutions,
KwaZulu-Natal hereby certify that I have seen all the statements
and
affidavits on which the charge particularized below is based and that
I decline to prosecute any person in connection with
this matter at
the instance of the State.
COMPLAINANT:

JACOB GEDLEYIHLEKISA ZUMA
ALLEGED
CRIME:

CONTRAVENTION OF SECTION 41(6) READ WITH SECTION 41 (7) OF THE
NATIONAL PROSECUTING ACT 32 OF 1998
DATE
OF THE ALLEGED CRIME:

9
AUGUST 2021
POLICE
REFERENCE:

PMB CAS 309/10/21
This
certificate is issued to
JACOB GEDLEYIHLEKISA ZUMA
SIGNED
at PIETERMARITZBURG on this
21
day of NOVEMBER
2022.
’
[44]
In the second supplementary affidavit filed on behalf of the
Respondent, it is submitted
that the second certificate, in as much
as it relates to ‘any person in connection with this matter’,
is sufficient
to include Maughan.  It is further submitted that
the issue of the second certificate confirms that the first
nolle
prosequi
certificate covered or applied to Maughan as well.
[45]
The
aforesaid submissions are, in our view, flawed for two reasons.
Firstly, the issue of a second
nolle
prosequi
certificate cannot cure the absence of a
nolle
prosequi
certificate pertaining to Maughan at the time the summons in the
private prosecution was issued.  The provisions of s 7(2)(a)
of
the CPA makes it clear that a private prosecutor must produce a
nolle
prosequi
certificate before a summons is issued.  In
Nundalall
v DPP KZN and Others
[7]
,
the court held that:
‘
Production
of the certificate is a peremptory statutory prerequisite for a
private prosecution.’ (At para 21).
The
court further held that non-compliance would amount ‘to a
material defect in the private prosecution of the Applicant’.

(At paragraph 40).
[46]
Secondly, the second
nolle prosequi
certificate does not apply
to Maughan.  The certificate does not name her as a ‘suspect’
as is evident in the
naming of a ‘suspect’ in the first
certificate.  It has been submitted on behalf of the Respondent
that given
the nature of the complaint, the wording of the second
certificate – in particular – ‘any person in
connection
with this matter’ – is sufficient to include
Maughan.
[47]
The argument is advanced that the certificate can only apply to a
maximum of six individuals
who are named in the ‘complaint’
affidavit, viz – Advocate Downer; Maughan; Advocate
Breitenbach; President Ramaphosa;
Minister Lamolla and / or Advocate
Shamilla Batohi.  These six people have specifically been named
either as a suspect, accused
persons or key witnesses.
[48]
It is however, noted that a reading of the complaint and in
particular paragraph 7 thereof,
that the complaint was directed at ‘.
. . all persons . . . who are either prosecutors and / or
investigators who have violated
the provisions of the NPA Act and the
Constitution’.  As stated earlier in this judgment,
Maughan is a ‘Senior
Legal Journalist’ and not a
Prosecutor or Investigator referred to in the complaint.
[49]
Maughan is therefore clearly not named or referred to as a suspect or
accused in the complaint.
[50]
We are accordingly of the view that the Respondent, Mr Zuma, has
failed to produce any
nolle prosequi
certificate which would
entitle him to institute a private prosecution against Maughan.
The summons issued against Maughan
is therefore unlawful and is to be
set aside.
[51]
Ordinarily
this should be the end of the matter insofar as it concerns Maughan.
However, in
Spilhaus
Property Holdings (Pty) Ltd and Others v Mobile Telephone Networks
(Pty) Ltd and Another
[8]
the
court held the following:
‘
[44]
…The Supreme Court of Appeal itself has said that it is
desirable, where possible,
for a lower court to decide
all issues raised in a matter before it. This applies
equally to the Supreme Court of Appeal.
This is more so where, as
here, the final appeal court reverses its decision on the chosen
limited point. This may impact on the
fairness of an appeal hearing.
Litigants are entitled to a decision on all issues raised, especially
where they have an option
of appealing further. The court to which an
appeal lies also benefits from the reasoning on all issues.
[45]
The practice of choosing one
point in disposing of an appeal in the Supreme Court of Appeal

predates the Constitution and arose at the time when that court was
the apex court. It may have been proper in the
pre-constitutional
era. That is no longer the case because appeals
against decisions of the Supreme Court of Appeal lie to this court
which is now
the apex court. As was observed in
Mphahlele
,
such practices should be carefully scrutinised to ensure that they
are compatible with the current constitutional scheme. This
is
because not all practices which were established under the apartheid
era are constitutionally objectionable; some are not
in line
with the present order.’ (Footnotes omitted.)
[52]
Following
on this judgment, most courts have stated that even if a matter can
be disposed of on one issue alone, the remainder of
the issues raised
have to be dealt with.
[9]
We
accordingly consider the remaining grounds relied upon by the
Applicants to have the summons set aside.
(b)
Section 7(1) of the CPA
[53]
The second ground relied upon by Maughan in seeking to set aside the
summons is that the
Respondent, Mr Zuma, lacks standing to institute
the private prosecution in terms of the provisions of s 7(1) of the
CPA.
This ground is also relied upon by Downer in his
application to have the summons set aside.
[54]
S 7(1)(a) of the CPA provides:
‘
(1)
In any case in which a Director Public Prosecutions declines to
prosecute for an alleged offence
–
(a)
any 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;
.
. .
may,
subject to the provisions of section 9 and section 59(2) of the Trial
Justice Act, 2008, either in person or by legal representative,

institute and conduct a prosecution in respect of such offence in any
court competent to try that offence.’
[55]
In
van
Deventer v Reichenberg and Another
[10]
,
Lichtenberg JP interpreted this section as follows:
‘
A
private person’s title to institute a private prosecution is
thus dependant upon his establishing:
(i)
that he has an interest in the issue of the
trial;
(ii)
that the interest is substantial and peculiar to him;
(iii)
that the interest arises from some injury which he individually

suffered; and
(iv)
that the injury was suffered as a consequence of the commission
of
the alleged offence.
The
underlying purpose of confining private prosecutions to those who
have a substantial and peculiar interest was expressed as
follows by
Van der Heever J (as he then was), in
Attorney General v Van der
Merwe and Borman
1946 OPD 197
at 201:
“
The
object of the phrase (“substantial and peculiar interest”)
was clearly to prevent private persons from arrogating
to themselves
the functions of a public prosecutor and prosecuting in respect of
offences which do not affect them in any different
degree than any
other member of the public; to curb, in other words, the activities
of those who would otherwise constitute themselves
public
busybodies.”’
[56]
Both
Applicants have submitted that the Respondent has not met these
requirements.  Both Applicants aver that the Respondent
does not
have any ‘substantial and peculiar interest’ arising out
of an ‘injury’ suffered as a result of
Maughan obtaining
and publishing the letter from Mdutywa.  Both Applicants have
referred and relied upon the judgment of Koen
J in the
S
v J G Zuma and Thales South Africa (Pty) Ltd
[11]
,
who found that:
(a)
Mdutywa’s letter was a public document and was not intended to
be
confidential nor was it in fact confidential;
(b)
the letter did not contain any confidential particulars about the
Respondent’s
(Mr Zuma’s) medical condition;
(c)
the letter was filed by Mr Zuma’s Attorney as an annexure to Mr
Zuma’s own postponement application; and
(d)
Mr Zuma’s Attorney did not seek any order that the affidavit or
the letter be sealed or kept confidential.
[57]
At paragraph 266 he concluded – ‘I am not persuaded that
the disclosure of
the letter constituted an actionable violation of
Mr Zuma’s rights.’
[58]
Applications for Leave to Appeal these findings were dismissed by the
Supreme Court of
Appeal and the Constitutional Court.
[59]
In response thereto, the Respondent has alleged that he is a ‘victim’
of a
crime and as such is entitled to institute a private
prosecution.  He has further alleged that he is a ‘person
who has
suffered personal injury as a consequence of the criminal
leaking of my medical records.’ Finally, he has described the
injury
he allegedly suffered as a result of the disclosure of
Mdutywa’s letter to Maughan as ‘unfair criticism’.
[60]
We have already referred to the findings of Koen J in this judgment.
Of particular
importance, in our view, is the finding that the said
letter was a public document and that it ‘was vague and general
in
terms and does not disclose any particularity which could be said
to amount to a violation of Mr Zuma’s rights to privacy.

Specifically, it does not mention the medical condition Mr Zuma
suffers from . . . ’ (paragraph 265).  As these aspects

are now
res
judicata
, we accept and agree with the
conclusions reached by Koen J.
[61]
It is noted that the ‘unfair criticism’ Mr Zuma alleges
he has suffered is
public commentary and opinion regarding his
application for a postponement of the hearing of his special plea.
It is not
as a consequence of Maughan obtaining the said letter. It
cannot therefore be said that whatever ‘injury’ the
Respondent
has alleged that he has suffered as a result of public
commentary and opinion, is an injury in terms of the provisions of s
7 of
the CPA.
[62]
With regard to the charges arising from Downer’s telephonic
conversations with Sam
Sole, the Respondent has not alleged any
‘injury’ that he has suffered.  Indeed, the
answering affidavit is silent
on this aspect.  Mr
Mpofu
SC, during argument, referred to various extracts of the
conversations between Downer and Sam Sole and, much to the delight of

some members of the gallery, labelled Downer as ‘a serial
leaker’.  However, this does not constitute an ‘injury’

to the Respondent.  Downer has, in the founding affidavit,
confirmed the telephonic conversations with Sam Sole.  Extracts

of the conversations were annexed to the founding affidavit.  He
has however denied that he leaked any confidential information
about
the Respondent to Sam Sole.  The Respondent has not, in the
answering affidavit, responded or challenged these averments.
[63]
In the result, we are of the view that the Respondent, Mr Zuma, has
failed to allege and
prove an injury in the context of s 7(1)(a) of
the CPA.  Accordingly, the summons, in respect of both
Applicants, is defective
and is to be set aside.
[64]
Finally, both Applicants have submitted that the Respondent’s
summons is an abuse
of the court process.
The abuse of
process
The
applications by Mr Downer and Ms Maughan
[65]
Both Applicants indicate that the private
prosecution of the Respondent constitutes an abuse of process.
D
owner, in his challenge to the private
prosecution, alleges it constitutes an abuse of process consistent
with the Respondent's
‘Stalingrad’ tactic. Secondly, that
it has been instituted for an ulterior purpose, namely, to prevent
him from performing
and carrying out his duties as a prosecutor and
lastly, the private prosecution is without merit and is
unsustainable.
[66]
In respect of Maughan she alleges it is a gross
abuse of process as the summons in the private prosecution has been
obtained for
the ulterior purpose of intimidating, harassing and
preventing her from performing her job as a journalist by freely
reporting
on the Respondent’s criminal trial.  The
ulterior purpose she submits is evident from the following:
(a)
The public comments made by
representatives, family and close associates of the Respondent;
(b)
The Respondent’s answering affidavit
which demonstrates his animosity toward her wherein he inter alia
describes her as:
‘
the
propaganda machinery of the media, a tool used by the NPA to
perpetuate falsehoods, a hostile journalist who is incapable of

balanced reporting’ and an ‘anti-Zuma crusader’.
(c)
There are no prospects of success in
respect of the charges which form the subject matter of the private
prosecution;
(d)
The private prosecution constitutes a
violation of the right of media freedom recognised in s 16(1) of the
Constitution.
[67]
It warrants mentioning that in respect of both
applications instituted by Downer and Maughan, there are no genuine
disputes of fact,
nor has the Respondent argued that there are any,
and the applications in the matter can be determined on the papers as
they stand.
This is as the Respondent fails to answer any of the
allegations made by Downer and Maughan or by providing any evidence
to dispute
them. The answering affidavit is replete with repetition,
namely, that matters will be addressed in the trial court and are
denied.
[68]
What
is most noteworthy is the manner in which the respondent has dealt
with the facts pleaded in the founding affidavits of Maughan
and
Downer. There are blanket, bald
[12]
denials of material allegations without laying any factual basis
therefor or any explanation to justify his denials. In answer
to the
allegations in the founding affidavits, the Respondent says the
following,
inter
alia
:
(a)
‘…
I
carry no obligation to reveal the minute details of my evidence in
the forthcoming
criminal proceedings…’.
(b)
‘…
all
these issues will be fully ventilated during evidence and/or cross
examination, at
the
criminal trial.  No useful purpose can be served in dealing with
them in this application.’
(c)
‘…
I
leave these factual issues for their proper ventilation in the
criminal trial.’
(d)
‘
The
defences raised herein on the merits belong to the criminal
proceedings.’
(e)
‘…
these
are matters which ought properly to be raised during or at the end of
the criminal
trial.’
(f)
‘…
this
issue is also being prematurely raised. It ought properly to be
raised in terms of
section 106(1)(f).’
[69]
Before dealing with the individual grounds
advanced by Downer and Maughan, it is apposite at this juncture to
consider how our courts
have interpreted what is meant by an abuse of
process and under what circumstances they have intervened to arrest
an abuse and
bring an end to proceedings.
What
is meant by abuse of process
[70]
Our courts have not attempted to have an
all-encompassing definition of what is meant by an abuse of process.
Over the years
there have been a number of instances in which the
courts have deemed it appropriate to intervene and arrest an abuse of
process
which include those instances where proceedings have been
instituted for an ulterior and/or improper purpose and for an
improper
and/or ulterior motive.
[71]
In
Lawyers
for Human Rights v Minister in the Presidency and Others
,
[13]
the following was said:
‘
In
Beinash
, Mahomed CJ stated that there could not be an
all-encompassing definition of 'abuse of process' but that it could
be said in general
terms “that an abuse of process takes place
where the procedures permitted by the Rules of the Court to
facilitate the pursuit
of the truth are used for a purpose extraneous
to that objective.” The court held:
“
There
can be no doubt that every Court is entitled to protect itself and
others against an abuse of its processes. Where it is satisfied
that
the issue of a subpoena in a particular case indeed constitutes an
abuse it is quite entitled to set it aside. As was said
by De
Villiers JA in
Hudson v Hudson and Another
1927 AD 259
at 268:
“
When…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.”
…
It
can be said in general terms…that an abuse of process takes
place where the procedures permitted by the Rules of the Court
to
facilitate the pursuit of the truth are used for a purpose extraneous
to that objective.’”
[72]
Our courts
have an inherent power to prevent an abuse of court process.
Initially the courts intervened to prevent an abuse of process
in
circumstances where the power to do so was exercised with the
greatest caution and only in a clear case.  De Villiers JA

writing for a Full Court in
Hudson
v Hudson and Another
[14]
held the following:
‘
That
every court has the inherent power to prevent an abuse of the
machinery provided for the purpose of expediting the business
of the
Court admits of no doubt.…
…
But
it is a power which has to be exercised with great caution, and only
in a clear case.’
[73]
In
Ascendis
Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and
Others
.
[15]
,
the court held at paragraph 40:
‘
Abuse
of process concerns are motivated by the need to protect “the
integrity of the adjudicative functions of court”,
doing so
ensures that procedures permitted by the rules of the court are not
used for a purpose extraneous to the truth-seeking
objective inherent
to the judicial process.’
[74]
In
addition, that a court will arrest an abuse in private prosecutions
was settled by our courts in S
olomon
v Magistrate, Pretoria, and Another
[16]
which concerned an application to the Supreme Court for an order
interdicting the magistrate from hearing a private prosecution
on
charges of fraud.  Among the issues which arose for
determination was an objection
in
limine
that the Supreme Court had jurisdiction to entertain the application
and secondly whether or not the applicant had discharged the
onus to
show that the prosecution was unfounded.
[75]
Dealing with the second aspect, the court held the following at
607F-H:
‘
The
Court has an inherent power to prevent abuse of its process by
frivolous or vexatious proceedings… and though this power
is
usually asserted in connection with civil proceedings it exists, in
my view, equally where the process abused is that provided
for in the
conduct of a private prosecution.  In such a case as I have
postulated, therefore, this Court would in my opinion
by virtue of
its inherent power be entitled to set aside a criminal summons issued
by its own officials or to interdict further
proceedings upon it.
It is also by virtue of its inherent power that the Court interferes
to restrain illegalities in inferior
courts either by way of
interdict or
mandamus
or by declaratory order, as it has on
occasion done… I have no doubt whatever that in a similar case
the Court would have
power to stop a private prosecution in an
inferior court.’
[76]
The
decision in
Solomon
was cited with approval and followed by the decision in
van
Deventer v Reichenberg and Another
where
it was held ‘A court has jurisdiction to set aside and
interdict a private prosecution which is irregular, vexatious
or an
abuse of the process of court
[17]
.’
This approach was followed in the SCA in
Phillips
v Botha.
[18]
Hoexter JA referred to an Australian High Court case for a definition
of abuse of civil process.  The SCA endorsed the
definition of
an abuse of process as ‘…the process is employed for
some purpose other than the attainment of the claim
in the action. If
the proceedings are merely a stalking-horse to coerce the defendant
in some way entirely outside the ambit of
the legal claim upon which
the Court is asked to adjudicate they are regarded as an abuse for
this purpose...’
[77]
Phillips
endorsed
the principle that the court has an inherent power to prevent an
abuse of its process from frivolous or vexatious proceedings
and
further referred to
Western
Assurance Co v Caldwell’s Trustee
[19]
and
Hudson
[20]
.
Endorsing
the view expressed in
Hudson
,
the court held that where there is an attempt made to use for
ulterior purposes machinery devised for the better administration
of
justice, a court has a duty to prevent such abuse and such power must
be exercised with great caution and only in a clear case.
In
addition, the SCA dealt with the abuse of process in relation to a
private prosecution. The question to be asked was whether
such
private prosecution was either instituted or thereafter conducted for
some collateral and improper purpose, rather than with
the object of
having criminal justice done to an offender.
[21]
[78]
In
Nedcor
Bank Ltd and Another v Gcilitshana and Others
,
[22]
the court was required to decide whether to interdict a private
prosecution in circumstances where the private prosecution was

alleged to have been instituted with an ulterior motive -namely to
oppress and harass the applicant rather than to secure criminal

justice and whether or not such private prosecution constituted an
abuse of process.  The court considered the decisions in
Hudson
and
Solomon
and also aligned itself with the sentiments expressed in those
decisions that ordinarily, reasons and motives of a party for
instituting
legal proceedings are irrelevant.  However, if the
court finds on the facts of a particular matter that such private
prosecution
was being used for ulterior purposes, it is the duty of
the court to prevent such abuse although such power must be exercised
with
great caution.  Such power derives from the inherent
jurisdiction of superior courts to prevent an abuse of process and
such
power will be exercised with caution and only in a clear case
but the courts will not hesitate to act where necessary— unless

the administration of justice falls into disrepute.  Such power
shall be exercised in the light of all the relevant facts
and
circumstances with due regard to the intention of the legislature as
reflected in the statutory provisions, if any, pertaining
to
particular proceedings.
[23]
[79]
Our courts have also recognized that not only is it vexatious but
also constitutes an abuse
of process to institute and pursue
proceedings which are unsustainable as a certainty.
Is
a consideration of the merits a factor in determining whether there
is an abuse of process?
[80]
The Respondent has raised objections to this
court intruding on the domain of the criminal court and whether it is
appropriate for
this court to delve into the merits of the private
prosecution in determining the issues in this application.
[81]
In a
court’s assessment as to whether or not a private prosecution
constitutes an abuse of process, the court may have regard
to the
prospects of success in the prosecution. In
van
Deventer v Reichenberg and Another
,
[24]
the court was of the view that a consideration of the merits was
permissible and it had regard to the prospects of success and
the
nature of the proceedings and concluded that the private prosecution
was vexatious and constituted an abuse of process.
[25]
[82]
More
recently the Constitutional Court has concluded that a consideration
of both motive and merits play a role in the enquiry into
an abuse of
process, albeit in the context of SLAPP suits.
[26]
The court must, when deciding whether to exercise its power to
prevent an abuse of process, do so having regard to the particular

facts and circumstances of a matter and having due regard to the
intention of the legislature as reflected in the statutory
provisions.
[27]
Additional relevant considerations include the prosecutor’s
conduct, the nature of the alleged offence/s and the effect
of the
prosecution on the accused.  The list however is not
exhaustive.
[28]
Is
the purpose of and motive for the private prosecution a relevant
consideration?
[83]
The
Respondent submits throughout his answering affidavit, and certainly
it was a submission which was also repeated in the heads
of argument
as well as during the course of the oral submissions by Mr
Mpofu
SC, that the purpose and motive of a private prosecution is
irrelevant. This submission is based on remarks by Harms DP in
National
Director of Public Prosecutions v Zuma
[29]
where he held that ‘[t]he motive behind the prosecution is
irrelevant because, as Schreiner JA said in connection with arrests,

the best motive does not cure an otherwise illegal arrest and the
worst motive does not render an otherwise legal arrest illegal.
The
same applies to prosecutions’.
[84]
However,
this submission ignores the statement by Harms DP which immediately
follows it where he says ‘[t]his does not, however,
mean that
the prosecution may use its powers for 'ulterior purposes’. To
do so would breach the principle of legality.’
[30]
In addition, in
Mineral
Sands Resources (Pty) Ltd and Others v Christine Reddell
and
Others
[31]
Majiedt
J confirmed that motive and merits play a role in the enquiry as to
whether there has been an abuse of process. Given the
authorities
referred to, we cannot agree with the Respondent’s submission
that the motive in instituting a private prosecution
is irrelevant.
[85]
The conclusion to be drawn from these decisions
is that in circumstances where a private prosecution such as is
alleged in the current
matter has been initiated for an ulterior
purpose, it constitutes a breach of the principle of legality and
amounts to an abuse
of the process of the court. A prosecution which
is unsustainable also constitutes an abuse of the process of court.
In these circumstances
a court is obliged to intervene and end an
abuse of process.
[86]
The founding affidavits pertinently raise the
question of ulterior purpose and motive. The Respondent simply
responds by saying
ulterior purpose or motive is irrelevant and
submits that it must be raised at the criminal trial and not
prematurely or improperly
in a civil court. We have already, in
paragraphs [23] to [28]
supra
,
indicated that this court has jurisdiction to deal with these grounds
raised by Maughan and Downer.
[87]
Where the issue of ulterior purpose is at the
heart of an Applicant's case, a Respondent is required to pertinently
deal with such
matters and place some answer to it before the court
in an answering affidavit. The Respondent elected not to do so
.
In assessing whether to exercise our powers to prevent an abuse of
process, ulterior purpose is but one of the considerations.
[88]
Turning now to consider the individual Applicants’ grounds of
alleged abuse of process.
Downer
[89]
The
Respondent has repeatedly, through his legal representatives,
indicated that the private prosecution was a precursor to the

institution of a recusal application for Downer and thus a
springboard for further delay in the criminal trial.
[32]
Downer has annexed to his founding affidavit, annexure “BD2”,
a summarized chronology of the Respondent’s litigation
since
inception, culminating in the criminal prosecution of the Respondent
currently before the Pietermaritzburg High Court on
charges of
corruption, money laundering and fraud.  Such chronology
demonstrates that the Respondent has litigated with the
NPA since 30
August 2003 until at least 31 October 2022, a period of approximately
229 months which equates to 19 years.
[90]
Downer indicates that this was done to prevent
the institution of the criminal charges which the Respondent now
faces.  It
is an indication of the Respondent’s
Stalingrad
tactic and despite the Respondent’s assertions to the contrary
that he wishes to stand trial and clear his name, it has had
the
opposite effect as it has delayed the institution of the criminal
proceedings for approximately 19 years.  What is evident
from
“BD2” and the matters mentioned therein, is that the
Respondent has made numerous applications and none of them
have
succeeded.  In his answering affidavit the Respondent simply
denies the
Stalingrad
tactic but ‘. . . while I admit technical details regarding
dates of proceedings and their outcomes . . .’ he has not

disavowed the comments by his then counsel, the late Kemp J Kemp SC,
on 29 May 2007 in which he informed the court that the Respondent
was
adopting a “Stalingrad” defence strategy. Although he has
not expressly disavowed what was said he submits that
the proceedings
were as a result of a genuine concern for his perceived violations of
his constitutional rights.
[91]
To date, however, none of the courts, including
the Constitutional Court which have dealt with these applications,
have made any
findings that the Respondent's rights were violated in
any way. We agree that against this background the application by
Downer
and Maughan is an attempt, specifically by Downer, to prevent
further abuse of the process of court and to ensure that the criminal

trial proceeds. The application 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.
[92]
We turn now to the second ground advanced by
Downer, namely whether the private prosecution instituted by the
Respondent has been
demonstrated to have been instituted for some
collateral and improper purpose rather than the objective of having
criminal justice
done to an offender as envisaged.
[93]
Downer has been the lead prosecutor, since the
inception of the litigation, involving the Respondent which
culminated in the criminal
prosecution. It is evident from the
proceedings instituted that the target of the Respondent’s
litigation is Downer. This
is evident from the s 106 plea proceedings
before Koen J that the Respondent’s purpose was to prevent
Downer’s continued
participation as a prosecutor in the
criminal proceedings - the challenge one would recall related to
Downer’s title to prosecute
on inter alia the basis of the
alleged unlawful disclosures to Sole and Maughan.
[94]
When this did not succeed, the Respondent then
initiated the private prosecution in a further attempt to have Downer
removed. For
as long as the private prosecution is extant, it forms
the basis on which the Respondent can seek to have Downer removed as
prosecutor
in the criminal trial. That the private prosecution served
as the precursor to the recusal application now brought before the
criminal
trial cannot be disputed by the Respondent.
[95]
Our
courts have also found an abuse of process to exist where a litigant
comes to court with ‘unclean hands’ and have
dismissed a
litigant’s claim. Such power is sparingly exercised as it
prevents a litigant from having their day in court,
which right is
constitutionally entrenched in s 34 of the Constitution. The
Constitutional Court has endorsed the approach of dismissing
a claim
on the grounds of abuse ‘. . . because the litigant who would
bring it is disqualified from doing so by reason of
their abuse.’
[33]
[96]
For reasons that will become more apparent
hereinafter, we are of the view that the Respondent comes to court
with ‘unclean
hands’ and consequently the private
prosecution is an abuse and the court must sanction such conduct.
[97]
The next ground advanced by Downer relates to
his assertions that the private prosecution is without merit and
unsustainable. Our
courts have held that proceedings are per se an
abuse of process where they are obviously unsustainable as a
certainty and not
merely on a balance of probability.
[98]
Holmes
JA in
African
Farms and Townships Ltd v Cape Town Municipality
[34]
endorsed this view:
‘
Our
law recognises that the Court has an inherent power to strike out
claims which are vexatious; see
Western Assurance Co v
Caldwell's Trustee
,
1918 AD 262
at p. 272. An action is vexatious
and an abuse of the process of Court
inter alia
if
it is obviously unsustainable. This must appear as a certainty, and
not merely on a preponderance of probability.
Ravden v
Beeten
,
1935 CPD 269
at p. 276;
Burnham
v.  Fakheer,
1938 NPD 63.
In the latter case a litigant was not allowed to
ventilate, under the facade of suing a different party, an issue on
which he had
been unsuccessful in previous proceedings.’
[99]
In
MEC,
Department of Co-Operative Governance and Traditional Affairs v
Maphanga
[35]
the court said the following:
‘
[
25]
It was firmly established in the South African common
law, long before the advent of the Constitution, that the
Supreme
Court had the inherent power to regulate its own process and stop
frivolous and vexatious proceedings before it. This
power
related solely to proceedings in the Supreme Court and not to
proceedings in the inferior courts or other courts or tribunals.
The
following principles crystallised over the ages. It had to be shown
that the respondent had “habitually and persistently
instituted
vexatious legal proceedings without reasonable grounds”. Legal
proceedings were vexatious and an abuse of
the process of court if
they were obviously unsustainable as a certainty, and not merely on a
preponderance of probability. I
must point out at this juncture
that this definition applied to all litigation that amounted to an
abuse of court process. The
attempt by the MEC's counsel to
distinguish the cases from which the principle derives on their facts
was, therefore, mistaken.’
(Footnotes
omitted.)
[100]
In
circumstances where it is shown that the private prosecution
constitutes an abuse of process the issuing
of
such summons will be set aside. In
Solomon
[36]
the court held:
‘
The
taking out of the summons would clearly be an abuse of the process of
the Court, in that it had been undertaken 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. The Court has an inherent power to prevent
abuse of its
process by frivolous or vexatious proceedings… and though this
power is usually asserted in connection with
civil proceedings it
exists, in my view, equally where the process abused is that provided
for in the conduct of a private persecution.
In such a case as I have
postulated, therefore, this Court would in my opinion by virtue of
its inherent power be entitled to set
aside a criminal summons issued
by its own officials or to interdict further proceedings upon it.’
[101]
We do not understand Downer to be saying that
simply because the Respondent has instituted numerous challenges over
a 20-year period
it is unlawful and constitutes Stalingrad. Meritless
challenges lead to the inference of delay. There have been a number
of challenges
over the years which the Respondent has indicated have
been instituted for the purpose of preventing violations of his
constitutional
rights. Each and every one of these challenges have
been proven to have been meritless.  In addition, every one of
them has
been found to be unsustainable save for those applications
which the Respondent elected not to pursue.
The
private prosecution is without merit and unsustainable
[102]
In respect of counts 1 and 2 of the indictment,
Downer is charged with the offences of contravening s 41(6)(
a
)
and (
b
)
read with s 41(7) of the NPA Act and is guilty of the unauthorised
disclosure to Maughan of information relating to the Respondent's

confidential medical information in the form of a letter written by
Mdutwya. In respect count 3 of the indictment, Downer
is charged with
contravening s 41(6)(
a
)
and (
b
)
read s 41(7) of the NPA Act in relation to the unauthorised
disclosure of information about the respondent to Mr Sam Sole, a
journalist for the Mail and Guardian. Downer asserts there is no
merit in the charges levelled against him and the private prosecution

has no prospects of success.
[103]
Firstly, it is not disputed that in terms of
the 2006 NPA directives on media statements and public
communications, deputy directors
and senior public prosecutors may
act as spokespersons for the NPA on matters pertaining to prosecution
policy and / or any criminal
prosecution. The purpose behind
responding to the media or to public enquiries about matters is to
assist the public to understand
the nature and course of criminal
proceedings at the same time not acting to the prejudice of the
parties before the court who
cannot defend themselves against public
comment.
[104]
Section 22(4)(
f
)
of the NPA Act also requires the National Director of Pubic
Prosecutions (‘NDPP’) to bring the UN Guidelines on the

Role of Prosecutors to the attention of Directors and Prosecutors
working for the NPA. Paragraph 13(c) of the United Nations guidelines

authorizes prosecutors to disclose matters that are necessary in the
performance of their duties or when the needs of justice require
such
disclosure.  This means that someone in both Downer’s
position, and Breitenbach for that matter, can respond to
enquiries
from, for example, the media in relation to the Respondent’s
criminal prosecution.
The
alleged disclosure by Breitenbach
[105]
In relation to the disclosure of the Mdutywa
letter, emanating from the affidavit filed by Breitenbach and
Maughan, the following
is how the document came to be disclosed to
Maughan:
(a)
On 6 August 2021, Mr Manyi the spokesperson for
the Jacob Zuma Foundation posted a notice on social media that the
respondent had
been admitted to hospital. This was subsequently
confirmed by the Department of Correctional Services later on the
same day.
(b)
Discussions were held between Downer and the
Respondent’s legal representatives on 8 and 9 August 2021 and
it was agreed that
the parties would jointly apply to court for a
postponement as a consequence of the Respondent’s
hospitalization.
(c)
Mdutywa’s letter was dated 8 August 2021,
it was presumably signed the same day. His affidavit was also deposed
to on 8 August
2021 both for purposes of forming part of the
Respondent’s postponement application. On the same day Downer
obtained a copy
of Mdutywa’s letter from Mrs Radebe, of the
Escourt Correctional Service Centre.
(d)
On the morning of 9 August 2021, Downer sent an
unsigned affidavit to Koen J’s Registrar at 11h46 in relation
to the proposed
postponement of the criminal proceedings on 10 August
2021. Attached to such affidavit was the letter from Mdutywa. The
Respondents’
attorney was copied in such email. In such
covering email, Downer indicated that as it was a public holiday, the
signed copy would
be filed at court on the following day;
(e)
Breitenbach in the interim indicates that as he
was aware that Maughan would travel to Pietermaritzburg to cover the
criminal trial,
he contacted her to advise her that the matter was
being postponed and she need not travel;
(f)
By that time, she had already arrived in
Pietermaritzburg. On Monday 9 August 2021, at about 16h43 Maughan
requested Breitenbach
to provide her with a copy of the unsigned
affidavit. He did so at 16h46 on the same day on condition that she
would not publish
anything in relation to the affidavit before the
signed copy was filed at court the following day;
(g)
Later on, in the afternoon of 9 August 2021,
Breitenbach informed Downer of the arrangement he had made with
Maughan and enquired
when Downer proposed to file his signed
affidavit. Downer informed him that he proposed to do so first thing
the following morning;
(h)
The Respondent through his attorneys also
delivered the postponement application via email to Koen J’s
Registrar later that
evening, to which was annexed the letter and
signed affidavit from Mdutywa.
(i)
The following morning, Tuesday 10 August 2021,
Downer advised Breitenbach that he had signed his affidavit and filed
it at court.
Breitenbach conveyed this to Maughan at 08h01 that
morning;
(j)
It was only after this that Maughan published
the article on the News 24 platform at 09h14am.
[106]
The
submissions of Downer in this regard and certainly which served
before Koen J in the s 106 plea proceedings was that the unsigned

affidavit had been delivered to his Registrar on 9 August 2021 and in
terms of the
Sanral
judgment,
[37]
was part of the
record, therefore not confidential.
[107]
Koen J found, and with which we respectfully
agree, that the document was not confidential and, in any event,
confidentiality had
been waived by the filing of the Respondent’s
affidavit. There was much debate as to the timing of the affidavit
deposed
to by Mdutywa and the date of the letter, but this has
adequately been dealt with in Koen J’s judgment and we
respectfully
align ourselves with those remarks expressed by him. In
addition, that these documents are public documents and can be made
available
is something that must not be lost sight of. In our view,
as the charge against Downer is unsustainable, we agree with the
submission
by Downer that the private prosecution is an attempt to
further delay the criminal prosecution and prevent him from
performing
and executing his statutory and professional duties. It
constitutes an abuse of process.
[108]
Downer submits that it is against this context
that the counts in the indictment must be viewed. On a factual level
we know that
Downer has denied making any disclosure to Maughan and
authorizing it. It is evident from both Breitenbach’s affidavit
and
that of Maughan, filed in answer to the Respondent's criminal
complaint, that the exchange took place between her and Breitenbach

and not Downer and that he was
ex
post facto
apprised of their
exchange by Breitenbach. Downer was no way involved in the disclosure
to Maughan of the letter from Mdutywa.
Although the Respondent, in
the affidavit filed in his criminal complaint against Downer, alleged
that ‘Downer unlawfully
handed a medical report involving me in
an affidavit leaked to a journalist, Karen Maughan’ he did not
persist with the allegation
and rather alleged that Downer sanctioned
Breitenbach to make such disclosure.
[109]
Downer correctly submits, in our view, that the
charge against him in relation to counts 1 and 2 are unsustainable
and as a consequence
the prosecution is per se an abuse of the
process of court.
The
allegations relating to the unauthorised disclosure to Mr Sam Sole
(‘Mr Sole’)
[110]
The allegations which the Respondent makes in
relation to the alleged disclosure to Mr Sole arises from events
which took place
between 4 and 13 June 2008. This is common cause
between the parties. The conversations between Downer and Mr Sole
formed part
of the “spy tapes” which were utilised by the
Respondent to persuade the Acting National Director of Prosecutions
at
the time, Mpshe, to withdraw the charges against him in April
2009. The respondent has had the transcripts of the conversation
between Downer and Mr Sole since at least April 2009. The Respondent
alleges that the offence in relation to the disclosure to Mr
Sole was
committed in Johannesburg. It is evident from Downer's response that
at the time, Mr Sole was in Johannesburg and he was
in Cape Town.
Consequently, this court does not have jurisdiction to adjudicate on
his private prosecution.
[111]
Downer has always denied that he disclosed any
information to Mr Sole relating to the Respondent's case and
indicated that what
the exchange between him and Mr Sole concerned,
related to Mr Sole’s queries about the procedure to be followed
when the
NPA obtains mutual legal assistance from other countries.
This has not been disputed by the Respondent. In fact, the
Respondent's
response to this is the following:
‘
48.
I wish to bring to the attention of this Honourable Court that the
alleged lacking
(
sic
) (leaking) of information to Mr Sole has
been repeatedly admitted by the applicant while admittedly also
seeking to avoid any liability.
It is also indirectly admitted in the
founding affidavit here.
49.
However and for the reasons already articulated above, I leave these
factual
issues for their proper ventilation in the criminal trial.’
[112]
In any event, the Respondent's allegations in
relation to the alleged disclosure by Downer to Mr Sole have already
been canvassed
and dealt with in Koen J’s judgment in the s 106
application wherein he found that the Respondent’s accusations
were
‘based on speculation, unsupported by admissible evidence
from Mr Zuma’. In addition, they were also raised during the

application for a permanent stay. At paragraph 234 of his judgment,
Koen J found that the respondent had specifically disavowed
and
waived reliance on the complaint when he said the following:
‘
At
the hearing of the stay application Mr Zuma through his counsel,
expressly disavowed and accordingly waived reliance on the leaks.

That this was so, has not been disputed in reply. Mr Masuku, who
co-signed a special plea in this matter, is one of the senior
counsel
who represented Mr Zuma in the stay of prosecution application. The
alleged media leaks to Mr Sole are accordingly, at
that level, no
longer an issue on which reliance can again be placed.’
[113]
Koen J further found that the Respondent had
not gainsaid or disputed Downer’s account of his conversations
with Mr Sole.
Consequently, the charge relating to the alleged “leak"
to Mr Sole is unsustainable. It also demonstrates an ulterior
motive
on the part of the Respondent, which in turn constitutes an abuse of
process. Why does the Respondent raise this now again
when it has
already been dealt with in two other proceedings and disposed of in
both the application for a permanent stay and in
the s 106 plea
proceedings before Koen J and in circumstances where this court does
not have jurisdiction to deal with the charges
in respect of this
count? The only reasonable inference one can draw is that the
respondent seeks to discredit Downer and prevent
him from executing
his duties as a prosecutor in the criminal trial.
[114]
It does not behove the Respondent to say he is
doing so now based on the ‘advice’ which Koen J mentioned
in his judgment.
He has been represented by legal professionals
throughout and they ought to have advised him to lay a criminal
complaint against
Downer a long time ago before a court with the
requisite jurisdiction.
[115]
As an ongoing indication of the Respondent’s
continuing abuse of the process of court, Downer filed a
supplementary affidavit
to deal with the events which took place
after the pleadings in the application were closed. Reference is made
to the Respondent's
institution of a private prosecution on 15
December 2022 of President Cyril Ramaphosa “Mr Ramaphosa”.
The charges in
relation to the private prosecution of Mr Ramaphosa
emanate from the public disclosure of Mdutywa’s letter. In
essence, the
Respondent alleges that Mr Ramaphosa failed, despite
been requested by the Respondent in a letter on 19 August 2021, to
act against
Downer and others in respect of the alleged contravention
of s 41(6) and 41(7) of the NPA Act which are the subject matter of
Downer’s
and Maughan’s private prosecution. This is
despite Mr Ramaphosa acknowledging in correspondence dated 25 August
2021 that
he was aware of the conduct complained of and advising that
he had referred the complaint to the responsible functionary, being

the Minister of Justice and Correctional Services, to take the
necessary steps. In count 2, Mr Ramaphosa is charged with obstructing

or attempting to obstruct the ends of justice by failing to act.
[116]
It is common cause that the private prosecution
against Mr Ramaphosa was instituted on 15 December 2022. In addition,
the summons
directed Mr Ramaphosa to attend at court in January 2023.
Mr Ramaphosa instituted an urgent application and obtained an interim

interdict which was heard by the Full Court in the Gauteng High
Court, Johannesburg pending a hearing in due course as to whether
or
not the Respondent ought to be entitled to proceed with the said
private prosecution of Mr Ramaphosa.
[117]
The Respondent has also sought leave to file a
further supplementary affidavit to deal with the new information
which he submits
only came to his attention after the finalisation of
his answering affidavit. He seeks to amplify his response to the
allegations
by putting up correspondence exchanged between his
attorneys and the offices of the DPP in relation to the request for
the
nolle prosequi
and also to deal with aspects which have come to light in the private
prosecution against Mr Ramaphosa, which he says has relevance
to the
current matter.
[118]
Having regard to this supplementary affidavit,
it demonstrates the Respondent’s continued campaign to
discredit Downer.
Maughan
[119]
Maughan submits that the Respondent’s prosecution is a blatant
and egregious abuse of the private
prosecution process. It is not
disputed that Maughan has commented on all litigation involving the
respondent since inception and
remains one among a few journalists
who continue to do so despite the media comments and harassment she
has been subject to. The
Respondent’s recent criminal trial has
been plagued by various adjournments and has not commenced as the
court has been dealing
with interlocutory matters.
[120]
Prior to the institution of the private prosecution, she has reported
on matters involving the Public Protector
and politically charged
matters which has drawn criticism from the Jacob Zuma Foundation,
supporters of the Respondent and members
of the Respondent’s
family. As a journalist she is seen as part of a ‘hostile media
with menacing commentary.’
She is regarded as an ‘implicated
party in matters of Downer’ and a ‘co-accused who has
provided a statement
to the police’.
[121]
It is evident that the Respondent harbours great hostility towards
her and this is demonstrated in his affidavit
and by the Respondent’s
associates and supporters.  The tweets annexed to the founding
papers demonstrate that the Applicant
has repeatedly been maligned
and threatened for her reporting of the Respondent and his court
matters.  It is evident that
this emanates from members of the
Respondent’s family, being his daughter as well as Mr Manyi,
the spokesperson for the Jacob
Zuma Foundation. Her affidavit
references instances of social media abuse by the Respondent’s
daughter and the Jacob Zuma
foundation. Among these include the
following:
‘
The
Foundation is pleased to announce that in the past 48 hours and in a
coordinated operation the Sheriffs have served criminal
summons on Mr
Downer in Cape Town and one of his accomplices Ms Karyn Maughan in
Johannesburg’.
‘
27.1
“Criminally Accused…You Look Good in Orange Sisi”
(A manipulated photograph
depicting me in orange prison uniform with
the text “Sboshwa” (prisoner))’.
‘
27.2
“Criminally Accused, Karyn Maughan, Was Yesterday Served by The
Sheriff for Breaking The
Law.  Accused Number Two, Karyn
Maughan, Looks to Serve Up to 15 Years In Prison WHEN Found Guilty.
This Will Be A Lesson
For ‘BoBreak The Story First
Journalists’!”;’
‘
27.3
“Oksalalayo…According to Your White Laws, YOU ARE A
CRIMINAL!!!” (this was
in a tweet which responded to and quoted
one of my own tweets, a direct reference to me);’
‘
27.4
“We Will Meet In Court. Open Your Comments Miss SC.”’
‘
27.5
“The Whites Are Busy Here Today” (a tweet with a
photograph of myself and Mr Downer),
identifying us as “Accused
No 1” and “Accused No 2”.’
[122]
Maughan has indicated that she has been referred to as:
‘
a
thing, a bitch, a lying bitch, a white bitch, a witch, a racist, a
pig, an alcoholic, a criminal, a hypocrite, a propaganda journalist,

a racist, a servant of white privilege, a hack and an askari
(traitor).’
The
fact that the tweets were sent and these comments were made has not
being disputed or denied. The Respondent in answer says
that he has
no control over the tweets and posts.
[123]
As attractive as the argument may be, Maughan, in our view, has been
harassed and prohibited from proper
reporting and does so with a
cloud hanging over her head and with the threat of either private
prosecution in a criminal court
or possible civil litigation being
instituted against her. In addition, some of these comments may
incite physical harm.
[124]
However, the Respondent contends himself with the submission that he
cannot take responsibility for the
tweets posted by members of his
family, supporters and the Jacob Zuma Foundation of which he is
merely a patron.  Whilst on
paper he may be a patron of the
foundation, it is true that the Jacob Zuma Foundation is an avid and
ardent supporter of the Respondent.
It wastes no time in
criticising any legal proceedings instituted against him. It is
evident that this has resulted in a negative
image of Maughan despite
the Respondent contending that she has been able to continue to
report and function as a journalist.
[125]
Having regard to the Respondent’s answering affidavit, his
personal animosity toward Maughan 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. For
example, in paragraphs 28 and 29 of his
answering affidavit, he
states the following:
’
28
…. As seen in this application, her decade long reporting on
my case has
been to advance the State’s misconceived view that
I have employed delaying tactics to avoid my criminal trial.
The
view that she falsely and consistently perpetrates is that I,
assisted by my legal representatives, faked my medical condition as

part and parcel of the stratagem of delaying my criminal trial.
This is also the State’s often repeated view –
that when
I have employed permissible legal strategies to hold the State to the
standard of a fair trial, I have done so as part
and parcel of a
so-called Stalingrad to avoid my trial.  The accused applicant
happily and uncritically hosts these views….
29.
There is ample evidence to support the conclusion that the applicant
promoted
the idea that my legal challenges to the constitutionality
of my prosecution did not constitute genuine legal challenges but
delaying
tactics designed to evade justice.  This included my
challenge to Adv Downer SC’s title to prosecute me.
Ironically
and now that the shoe is on the other foot, Ms Maughan is
employing exactly the same weapons or strategy which she has
consistently
labelled as Stalingrad.  In my view, this is
nothing but duplicity and disingenuity laced with a touch of racist
bigotry.’
[126]
Maughan indicates that she is ‘the only one left’ who
follows and reports on his matters.
This the Respondent says is
denotative of her negative attitude toward him and has labelled her a
hostile journalist who is there
to be used by the NPA for their
unlawful views and she is thus incapable of balanced reporting and is
an anti-Zuma crusader.
This is evident from the answering
affidavit at paragraph 82 where he says she is being used as the
‘propaganda machinery
of the media’ and used by the NPA
to perpetuate falsehood, a hostile journalist who is incapable of
balanced reporting and
an anti-Zuma crusader’.
[127]
In relation to the unfounded and baseless charges in the private
prosecution, one need only have regard
to the timeline referred to
hereinbefore in the judgment. It is clear that the documents already
formed part of the court papers
at the time it was published by
Maughan. She requested and obtained them from Breitenbach not Downer
and did so in the public interest.
In any event, by the time she
published them, they were public documents.
[128]
The Respondent has not disputed her averment that it is common
practice among journalists to request court
documents with a view to
reporting on matters - that she has done so in the past in relation
to the Respondent has also not been
disputed. As at the time of
publication of her article the documents had been filed in court
three times.
[129]
At the time the Respondent filed the summons and summary of
substantial facts and instituted the private
prosecution, these facts
were already within his knowledge. Despite this and despite Koen J’s
judgment, he persists in the
private prosecution of Maughan. We agree
that the only inference to be drawn from this coupled with the social
media attacks on
her are done with the intent to intimidate and
harass her and prevent her from performing her duties as a
journalist. It is done
for an improper motive not with the intent of
addressing any wrongdoing on her part.
[130]
Maughan also indicates in her affidavit that the Respondent will stop
at nothing to malign her and falsely
implicate her.  As a
further example of this she alludes to the Respondent’s
reference that “she deleted tweets”
of 9 August 2021
relating to the medical information.  In support of this
allegation he annexes annexure “JZD7”
in support of
this.  However, such annexure does not support this contention
but rather evidences an attempt to manufacture
evidence against her.
[131]
When viewed holistically we agree with Maughan that the private
prosecution constitutes a violation of the
rights recognised in
s16(1) of the Constitution.  The right to freedom of the media
has been acknowledged by our courts.
[132]
In
Van
Breda v Media24 Limited and Others
[38]
,
the SCA explained:
‘…
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 idea.  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.’
[133]
Such right we agree encompasses the right of journalists to report
freely on matters of public interest
without threats and without
intimidation and harassment.
The
submissions of the
amici
in relation to whether the private
prosecution of Downer and Maughan is an abuse of process.
Respondent’s
opposition to the submissions of the
amici
[134]
We propose to deal with some preliminary
observations relating to the Respondent’s stance in respect of
the submissions of
the
amici.
The
Respondent submits that although the
amici
were admitted by consent, this court must disregard and / or reject
their submissions. In respect of the HSF, the Respondent submits
that
it is partisan and is advancing Downer’s case and therefore not
a true
amici.
Accordingly, that all the submissions of the HSF ought to be
dismissed as they are ‘highly ill-advised and undesirable’.

Having regard to the principles applicable to the admission of
amicus
curiae
they ought not to have been
admitted as they do not meet the requirements for admission.
[135]
In respect of the first to third
amici
,
similarly he submits they are partisan and not impartial. Their
submissions are not useful and are proffered to advance support
for
Maughan. There is no merit in their submissions that the private
prosecution has been instituted for an improper purpose or
motive.
The submissions in relation to SLAPP suits do not add to the
submissions advanced by Maughan, nor do they advance the abuse
of
process argument.
[136]
The
Respondent argues that the SLAPP suit defence must be invoked at the
criminal trial after evidence has been led by the accused
and not by
the
amici
who is not a party in the criminal proceedings. Properly interpreted,
SLAPP suits do not extend to criminal proceedings as the
court in
Mineral
Sands
Resources
(Pty) Ltd and Others v Christine Reddell and Others
[39]
did
not extend the scope of the defence to criminal matters or beyond the
scope on which the United States developed it, it being
limited to
defamation suits. One cannot extend the SLAPP suit defence to
criminal trials as this would frustrate the administration
of justice
and constitute an impediment to the NPA and private prosecutors from
conducting fair criminal trials.
[137]
It is for these reasons that the respondent argues
that the submissions of the
amici
must
be rejected for lacking merit and impartiality and therefore have not
conducted themselves in a manner that reflects their
status as a
friend of the court.
[138]
In respect of Democracy in Action (‘DIA’), the Respondent
does not raise any substantial objection
to the submissions they
make.  The DIA however joins issue with the Respondent relating
to the submissions of the first to
fourth
amici
and indicates
that the court ought to disregard their submissions. They, likewise,
submit the other
amici
do not meet the crucial requirement of
being ‘a disinterested friend of the court’ and are not
neutral as they support
Downer and Maughan in the main proceedings
and their submissions advance their cause.
[139]
This, they submit, is demonstrated by the various media statements
issued by the first to third
amici
in support of Maughan.
DIA submit that the first to third
amici
do not draw the
attention of the court to relevant matters of law and fact to which
attention would otherwise not be drawn in exchange
for the privilege
of participation in the proceedings without having to qualify as a
party.  They submit further that an
amicus
has a special
duty to the court and to provide helpful submissions not already
canvassed by a party to the proceedings.  In
addition, they
submit the
amici
have not met the requirements for admission
as
amicus curiae
as envisaged in rule 16A.
[140]
The submissions of the Respondent in respect of
the individual and various submissions of the
amici
will be dealt with as we canvass the individual submissions of the
amici
. At
the outset however, it is necessary to consider the request by the
Respondent and the DIA for this court to disregard and or
ignore the
amici’s
submissions. We do not accept this invitation by the respondent and
DIA in light of the authorities which have been considered
in the
admission of
amicus curiae
.
The
role of an
amicus
.
[141]
In
its role of assisting the court, the
amicus
does not need to have a direct interest in the outcome of the
litigation and joins the proceedings due to its expertise on or
interest in the matter before the court.
[40]
In
In
Re Certain Amicus Curiae Applications: Minister of Health and Others
v Treatment Action Campaign and Others,
[41]
the
Constitutional Court described the role of an
amicus
as follows:
‘
The
role of an
amicus
is to draw the attention of the Court to relevant matters of law and
fact to which attention would not otherwise be drawn.
In return
for the privilege of participating in the proceeding without having
to qualify as a party, an
amicus
has
a special duty to the Court.  That duty is to provide cogent and
helpful submissions that assist the Court.  The
amicus
must not repeat arguments already made but must raise new
contentions; and generally these new contentions must be raised on
the
data already before the Court.  Ordinarily it is
inappropriate for an
amicus
to try to introduce new contentions based on fresh evidence.’
[142]
Rule 16A governs the admission of an
amicus
curiae
.  The rule provides that a
party seeking admission as
amicus curiae
must:
(a)
seek
the written consent of the parties and in the absence of such consent
apply to court for admission;
[42]
(b)
show
that it has an interest in the proceedings;
[43]
and
(c)
demonstrate
that it will make submissions that are relevant, and which will
assist the court, and which submissions are different
from those of
the other parties.
[44]
[143]
Emanating from the case law concerning the
admission of
amicus curiae
a
number of principles have emerged.  These relate to the nature
of the
amicus curiae’s
role
in the proceedings and in the determination of whether or not it
ought to be admitted.  These principles are the following:
(a)
an
amicus
curiae’s
contribution
lies in the additional, new and different
[45]
perspective it brings on the issues between the parties;
[46]
(b)
the
amicus
is
not prevented from supporting one party’s side of the case and
neutrality of the
amicus
is
not a requirement in the proceedings;
(c)
the contribution which an
amicus
makes must materially affect the
outcome of the proceedings.
[144]
With
regard to the Respondent’s submissions that certain of the
amici
are
not neutral parties and support the contentions of the Applicants in
the main application, our courts have indicated that
there is nothing
improper in an
amicus
curiae
supporting
the contentions of one of the parties.
This
is demonstrated if one has regard to the Constitutional Court
decision in
Chakanyuka
and Others v Minister of Justice and Correctional Services and Others
(Scalabrini
Centre of Cape Town, The International Commission of Jurists and The
Pan-African Bar Association of South Africa Amicus
Curiae)
[47]
and
Minister
of Police and Others v Fidelity Security Services.
[48]
In these instances, all of the
amici
supported
the stance taken by one of the parties to the litigation.
Similarly, in
Economic
Freedom Fighters v Manuel
[49]
the
amici
supported the Respondent’s submission that a party ought to be
able to approach a court on application to seek relief including
the
recovery of damages.
[145]
The
Constitutional Court in
S
v Molimi
[50]
remarked,
on the approach of the
amicus
curiae,
that it did not only generally support the contentions of the
Applicant but also contributed a different perspective.
[51]
Even where an
amicus’
support for one side of the case was described as vigorous, the court
allowed its admission and did not make an adverse costs order.
[52]
[146]
The
interest of an
amicus
must be an interest in the correct application of the law.
[53]
What is required is for an
amicus
’
submissions to be directed towards a just outcome and often this may
necessitate written submissions before a court steering
it towards a
particular direction.  But this does not disqualify a
prospective Applicant from admission as an
amicus
or
their submissions being considered.
[147]
That
neutrality is not a requirement for admission has been upheld in a
number of cases.  In
S
v Engelbrecht
[54]
the
court held that ‘neutrality is neither necessary nor a
requirement of the
amicus
curiae
function’.
Satchwell J further observed at paragraph 51 that:
‘…
it
is difficult to
conceive
that any
individual or organisation would wish to intervene as an
amicus
unless there was a particular piece of information or area of
learning or point of view of which the
amicus
wished the Court
to be cognisant.  The aloof and disinterested and apathetic
would be highly unlikely to seek to enter the
arena at all.’
[148]
Having regard to the submissions of the first to fourth amici
although they support the relief sought in
the applications by Downer
and Maughan, their submissions and contributions and reasons advanced
differ from those of the Applicants.
The
Helen Suzman Foundation (‘HSF’)
[149]
The HSF was admitted as
amicus curiae
to advance two primary
submissions, both of these are aimed at the rule of law and the
Constitution. The two primary submissions
are that:
(a)
Private prosecutions have few inbuilt safeguards and is an
extraordinarily unique process susceptible
to abuse.  This
particular private prosecution impacts on prosecutorial independence
which must be considered by the court
when it determines the main
application and whether the Respondent’s private prosecution is
an abuse of process;
(b)
The Respondent has commenced the private prosecution for an ulterior
purpose having regard to
the documents filed in the private
prosecution, namely the summons, summary of substantial facts and
list of witnesses.  When
one considers this with the fact that
reasonable and probable grounds for prosecuting Downer are absent,
this court may grant the
relief which Downer seeks.
The
Respondent’s opposition to the HSF
[150]
The Respondent opposes the HSF’s submissions on a number of
grounds, namely:
(a)
HSF is biased and disingenuous;
(b)
HSF has failed to establish a tangible interest in the proceedings
and its submissions do not
contain ‘clearly identified evidence
that “
Mr Zuma’s prosecution is an abuse of the sort
that this court should not countenance
”’;
(c)
courts are reluctant to admit
amici
in criminal cases;
(d)
HSF’s submissions will add nothing new to the consideration of
the issues;
(e)
the
Zuma
judgment of Harms JA indicates that
a court ought only to interfere with the “legitimate”
exercise of power in exceptional
and clear cases;
(f)
it is trite law that ulterior purpose and
motive are irrelevant to the validity of a private prosecution.
(g)
that the arguments and submissions advanced by
HSF are not supported by any evidence.
Ms
Hofmeyr
SC,
on behalf of HSF, submitted that the private prosecution constituted
an abuse of the process of court as it was being pursued
by the
Respondent for an ulterior purpose, which ulterior purpose was
evident from the Respondent's own documents in the private

prosecution. She submitted that our law recognises that powers are
conferred for a particular purpose and when such power is used
for an
ulterior
purpose
or a purpose not authorised by law, the principle of legality is
undermined.
[55]
[151]
Private
prosecutions which have been instituted without any true intention to
bring an accused person to justice but rather to promote
a party's
business interest and to intimidate a banking
institution
into giving more cooperation and recognition to the private
prosecutor was interdicted from continuing.
[56]
Our courts have allowed private prosecutions where the true purpose
to prosecute is to bring the person accountable to book, so
to speak,
and where it has been used to bring a person to prosecution.
[57]
[152]
The contention that ulterior purpose or motive
is not relevant to the validity of a prosecution does not find favour
with the line
of decisions which HSF has referred to nor with the
authorities we have had regard to and have referred to earlier on in
this judgment.
Ulterior purpose and motive becomes relevant where a
private prosecution is pursued for a purpose other than bringing the
“guilty”
person to account.
[153]
HSF submits that the manner in which the
Respondent has conducted the private prosecution demonstrates that
such private prosecution
is not being pursued with the genuine
purpose of bringing Downer to justice. It is being pursued for an
ulterior political purpose
and this is evident from the documents
which the Respondent relies on to found the private prosecution, as
they deal with matters
not relevant to the charges; and his
subsequent conduct in the matter.
[154]
The HSF seeks to make submissions to assist the
court in exercising its discretion to grant an interdict against the
private prosecution
on two basis: firstly, that it is evident from
the Respondents own documents and conduct that he has instituted the
private prosecution
for an ulterior purpose, having regard to his
conduct, the summary of substantial facts, the docket and his witness
list. This
differs from the submissions of Downer, who advances his
case based on the delay and its impact on him as a prosecutor.
[155]
In
support of these contentions, HSF submits that in circumstances where
the exercise of a power is used for an ulterior purpose,
it
implicates the principle of legality and the rule of law. It cites
various illustrative examples in which the courts have found
conduct
to be unlawful and interdicted it as the exercise of such power was
for an ulterior purpose. The cases referred to by HSF
in both its
heads of argument and its oral submissions highlight that if there is
a misuse of power, such abuse can be interdicted.
[58]
[156]
The relevance of the decision in
Sex
Worker Education and Advocacy Task Force v Minister of Safety and
Security and Others
was that the
powers of arrest were being used to frighten or harass the sex
workers and, in those circumstances, the arrest was
ruled illegal.
[157]
What must be emphasized is that motive must not
be confused with an ulterior purpose. The Respondent says that the
ulterior purpose
and / or motive are irrelevant to the validity of
the prosecution. It is correct that in circumstances where the
exercise of the
power is being used for its proper purpose, the mere
fact that a person is influenced by ulterior motive does not detract
from,
for example, the legality of the arrest. However, the cases
referred to show a distinction where the exercise of the power is
being
used for an ulterior purpose. This, for example, may occur in
circumstances where the power of prosecution is being used for a
purpose other than to bring an accused person to justice. In those
circumstances, the authorities demonstrate that the courts will

intervene to interdict the conduct if the exercise of that power
constitutes an abuse of process and if the power granted is being

abused. We find ourselves in respectful agreement with the submission
of HSF that this argument by the Respondent cannot stand.
[158]
The
decision of
Nedcor
Bank
Ltd and Another v Gcilitshana and Others
[59]
is relevant to the Respondent's submissions that motive and purpose
are irrelevant. In such decision, Erasmus J assumed that there
was
merit in the private prosecution. However, despite that, he granted
an interdict. He took the view that the reason for invoking
the
court’s inherent power to stop the private prosecution was to
protect the administration of justice. He explained this
as follows:
‘
O
rdinarily,
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
‘(per De Villiers JA in
Hudson
v Hudson and Another
1927 AD 259
at 268).  The learned Judge made the comment in the
context of misuse of a Rule of the Court by one of the litigants, but
in
Solomon
,
Roper J found the dictum to be applicable also to private
prosecutions. In
Van
Deventer v Reichenberg and Another
[1996] 1 All SA 125
(C) at 132f–g, the Court held that it has
the power to interdict a private prosecution which is irregular,
vexatious or an
abuse of the process of the court. The power derives
from the inherent jurisdiction of our superior Courts to prevent
abuse of
their process.
[60]
Although such power will be exercised with caution and only in a
clear case, the courts will not hesitate to act where necessary-
lest
the administration of justice attract disrepute. The power shall be
exercised in light of all the relevant facts and circumstances,
and
with due regard to the intention of the legislature as reflected in
the statutory provisions, if any, pertaining to the particular

proceedings.’
[61]
[159]
Having regard to the summons and charges, the
Respondent accuses of Downer of breaching the provisions of s 41(6)
and (7) of the
NPA Act by his disclosure to Mr Sole between 4 to 13
June 2008 and his disclosure to Maughan on 9 August 2021 of
“confidential”
medical information relating to the
Respondent. HSF submits that only evidence which proves or disproves
one or more of the elements
of the charge is relevant and that
evidence which does not prove or disprove the elements of the charge
is irrelevant.
[160]
Counts 1 and 2 in the charge sheet relate to
the events of 9 August 2021 and Mdutywa’s letter and count 3
relates to the conversations
with Mr Sole which are alleged to have
occurred between 4 June and 13 June 2008. Count 3 alleges that Downer
disclosed information
pertaining to the pending prosecution of the
Respondent to Mr Sole.  If one then turns to the statement of
substantial facts
which accompanied the indictment, it contains facts
which are unrelated to these charges that Downer faces.
[161]
In respect of count 3, the only allegations
relevant to the charges emanate from paragraphs 24 and 25 of the
summary of substantial
facts.  These include
inter
alia
that between 4 and 13 June
2008, Downer engaged in numerous telephone discussions with Mr Sole,
during which Downer disclosed information
in relation to the
prosecution of the Respondent.  Such information had come to
Downer’s attention as a consequence
of his employment with the
NPA and such disclosure was without the authority of the NDPP.
[162]
Only ten paragraphs of the statement of
substantial facts are devoted to the disclosure to Maughan.
However, these paragraphs
do not deal with the facts relevant to the
charges and but rather, they deal with facts relevant to the first
prosecution of the
Respondent on charges of corruption and the
subsequent decision not to prosecute him. We agree with the
submission by HSF that
whether or not the Respondent was initially
indicted and whether or not his prosecution was pursued for a
political purpose and
whether the decision to prosecute him was made,
are irrelevant to the charges which Downer faces.  The statement
of substantial
facts on the whole are largely devoted to the
suspicions of the Respondent that there was a political agenda
involved in his prosecution.
[163]
When one turns to the witness list, which
concludes the statement of substantial facts, the Respondent alleges
that he ‘intends
to call the witnesses indicated in the
attached witness list in support of his case’. Several
witnesses identified on the
list are not referred to in the summary
of substantial facts and are not linked to the charges faced by
Downer. Three of the witnesses
are President Ramaphosa, the Minister
of Justice and Correctional Services, Mr Ronald Lamola, and the
Director-General of the State
Security Agency, Thembisile Majola.
However, in none of the documents which form the subject matter of
the private prosecution
does the respondent indicate precisely what
their role is or the relevance of their being witnesses in the
private prosecution
against Downer.
[164]
Then reference is also made to William
Hofmeyer, the former Deputy National Director of Public Prosecutions,
Mokotedi Mpshe, former
acting National Director of Public
Prosecutions, and Mr Lawrence Mushwana, the former public protector.
The summary of substantial
facts does not indicate what role Mr
Hofmeyer played in Downer’s sharing of information with Mr Sole
and Maughan. The decision
of Mr Mpshe not to prosecute the Respondent
has nothing to do with whether Downer unlawfully shared information
with Mr Sole in
2008 and Maughan in 2021 and lastly, reference to Mr
Mushwana appears to be solely at the level that he commented on
Bulelani Ngcuka’s
averment that there was
prima
facie
evidence against the
Respondent. Mr Mushwana’s comment is in no way connected to or
relevant to whether or not Downer unlawfully
shared information with
Mr Sole and Maughan.
[165]
HSF submits that if one considers the witness
list together with the statement of substantial facts, it becomes
evident that the
Respondent has once again revisited and repeated his
allegations relating to his perception of the political interference
in his
prosecution.  These ‘facts’ are in no way
relevant to the charges levelled against Downer.  We agree that

the fact that these witnesses were previously involved in the
decision to prosecute the Respondent is irrelevant to the charges

against Downer.
[166]
Downer, in his founding affidavit, submits that
the witness list of the Respondent is ‘sensationalist’.
The Respondent’s
response to this suggestion is to merely deny
this and to aver that the ‘details of witnesses listed therein
has a contribution
to make in the factual exposition of the offence’.
That does not constitute an explanation or response to Downer’s
allegation that the witness list is sensationalist.  We agree
that in response to this, one would have expected that the respondent

would have provided a brief account of each witness and their link to
and relevance of their evidence to the charges against Downer.

However, despite it being pertinently raised in the founding
affidavit, no explanation has been forthcoming from the Respondent.
[167]
A copy of the docket produced by the Respondent in the private
prosecution to Downer on 13 February 2023,
contains statements which
the respondent says he will rely on in the private prosecution of
Downer.  There are no statements
from any of the Respondent’s
proposed witnesses and the only statements are those that were
already in the police docket
in the criminal complaint lodged by the
Respondent. We agree with HSF, that the absence of witness statements
in the docket in
the private prosecution, leads to the ineluctable
inference that the Respondent has no intention to call these
witnesses on the
list and the names on the list have been included as
an ‘abuse or an attempt at sensationalist publicity’.
[168]
The response by the Respondent to the request to interdict the
private prosecution and prevent it from continuing,
is twofold.
Firstly, he says that there are inbuilt protections in the CPA which
are available to an accused person at the
end of the trial, namely to
obtain a costs order if the prosecution is vexatious or abusive
litigation.  However, we agree
with the submissions of HSF that
this is not an answer because once the rule of law has been violated
by a private prosecution
which has been pursued for an ulterior
purpose, it cannot be cured or rescued by an adverse costs order at
the end of the trial.
It therefore follows that we agree with
the submission that the only proper response is to interdict the
private prosecution at
the outset if indeed Downer and Maughan are
able to demonstrate that it had been instituted for an ulterior
purpose and/or constitutes
an abuse of process.
[169]
Secondly, the Respondent indicates that the HSF is attempting to
dictate to him how he must plead and present
his case.  The HSF
in response has indicated that it takes no issue with the manner in
which the Respondent has pleaded or
presented his case and agrees
that he is
dominus litis
as a private prosecutor and may
determine the manner he does so in his discretion. However, if one
considers the four documents
referred to and which form the
foundation of the private prosecution, one can only conclude from the
manner in which he has presented
his case that it is for an ulterior
purpose.
CFE,
MMA and SANEF
[170]
CFE, MMA and SANEF a
dvance the following
submissions in relation to the Respondent’s private prosecution
of Maughan. They submit that the courts
have a duty to prevent an
abuse of its processes and that duty must be understood in the light
of three contextual factors namely:
(a)
the growing trend to attack journalists,
specifically female journalists;
(b)
the
private prosecution in the context of SLAPP
[62]
suits; and
(c)
the exercise of freedom of expression by the
press in the context of s 41(6) of the NPA Act.
[171]
The Respondent, in dealing with the submissions
of CFE, MMA and SANEF submits that SLAPP suits are not part of our
law and our law
does need not be developed to have regard to such
lawsuits and, more importantly, SLAPP suits ought not to apply to
criminal proceedings
and are limited to defamation suits.
[172]
The
applicability of SLAPP suits in our law is the subject of a unanimous
Constitutional Court decision in
Mineral
Sands
Resources
(Pty) Ltd and Others v Christine Reddell and Others
[63]
delivered on 14 November 2022.
The
issue before the court
was
whether or not our law prohibited a SLAPP suit under the abuse of
process doctrine and if not, whether our law ought to be developed
in
that regard. Among the issues the Court considered in determining an
abuse of its process, was whether the sole enquiry was
ulterior
motive or whether the enquiry involved ulterior motive and a
consideration of the merits of the claim.
[173]
The
Constitutional Court recognised that SLAPP suits described as
‘lawsuits initiated against individuals or organisations
that
speak out or take a position on an issue of public interest…
not as a direct tool to vindicate a
bona
fide
claim, but as an indirect tool to limit the expression of others…
and deter that party, or other potential interested parties,
from
participating in public affairs.’
[64]
[174]
The decision in
Mineral
Sands
concerned an exception to a
claim for defamation, in which it was pleaded that the conduct of the
Plaintiff:
‘
forms
part of a pattern of conduct [which] involves these mining companies
and their directors bringing “defamation actions
for the
ulterior purpose” of-
(a)
discouraging, censoring, intimidating and silencing the
defendants in
relation to public criticism of the plaintiffs; and
(b)
intimidating and silencing members of civil society, the public and
the
media in relation to public criticism of the plaintiffs.’
[65]
[175]
The
Defendants in the above case had, in their special plea, indicated
that the institution of the defamation actions constituted
an abuse
of process of court; amounted to the use of court processes to
achieve an improper end; to use litigation to cause the
defendant's
financial and / or other prejudice in order to silence them; and
lastly, violated the right to freedom of expression
entrenched in s
16 of the Constitution.
[66]
[176]
One of the issues raised in response to the
exception was that allowing the SLAPP suit special plea would run
contrary to the decision
in
Maphanga
which placed emphasis on the merits
of a claim in the abuse of process analysis, whereas SLAPP suits
postulate that a litigant may
raise an abuse of process as a
stand-alone defence to a substantive claim.
[177]
The Constitutional Court, in determining its
jurisdiction, held it was required to decide whether the common law
doctrine of the
abuse of process catered for a SLAPP suit defence and
SLAPP suits, by definition, limit public participation by abusing the
legal
process to silence and deter public participation. The Court
embarked on an analysis of the origin of the SLAPP suits in the USA

and Canada and remarked that SLAPP suits were frequently brought as
defamation claims, abuse of process, malicious prosecution
or
delictual liability cases. The primary aim of SLAPP suits is not to
enforce a legitimate right but to silence or fluster the
opponent
and:
‘
are
intended to silence critics by burdening them with the cost of
litigation in the hope that their criticism or opposition will
be
abandoned or weakened… the plaintiff does not necessarily
expect to win its case, but will have accomplished its objective
if
the defendant yields to the intimidation, mounting legal costs or
exhaustion and abandons its defence and also, importantly,
its
criticism of and opposition to the project or development.’
[67]
[178]
The
court, in analysing the defence proffered on whether or not SLAPP
suits could be accommodated under our common law abuse of
process,
opined that the special defences pleaded by the Defendant, ‘distilled
to its essence, was a defence of abuse of
process’. It analysed
the South African cases over the years in which courts have used
their inherent powers to protect the
institution from litigious
abuse. It referenced the decision in
Lawyers
for Human Rights v Minister of Home Affairs and Others
,
[68]
MEC,
Department of Co-Operative Governance and Traditional Affairs v
Maphanga
,
[69]
Phillips
v Botha
[70]
,
Beinash
v
Wixley
[71]
and
Ascendis
Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and
Others
[72]
The court further stated that ‘[t]here can be no doubt that
every Court is entitled to protect itself and others against
an abuse
of its processes’. An enquiry into abuse of process depends on
the facts and circumstances of each case.
[179]
The
Court also remarked that there is a difference between ‘abuse
of process that impinges upon the court’s integrity
[and] abuse
that is designed to cause harm to a party.’
[73]
The judgment endorsed
Phillips
in
the context of a private prosecution and found that a court has a
duty to intervene in circumstances where there is an attempt
to
utilize court processes for an ulterior purpose.
[180]
In
Mineral
Sands
,
the court held that in considering the abuse of process and SLAPP
suit defence ‘both motive and merits must play a role
in the
enquiry.’
[74]
It
confirmed the court’s powers to protect its own processes by
thwarting an abuse of process and agreed that what constitutes
an
abuse of process will always be ‘fact specific and there can be
no all-encompassing definition of it. A close examination
of all the
relevant circumstances must be made.’
[75]
[181]
At paragraphs 91 to 93 of the judgment, the
Court identified the different forms of abuse of process in our law.
The first is the
use of the rules of court to delay a case or to
deliberately misemploy a claim for urgency. Such abuse uses the
procedural rules
in a manner that they were not intended to be used
and also causes prejudice to the opposing party. The second kind of
abuse relates
to that of the vexatious litigant who repeatedly brings
unmeritorious cases. The focus is on the nature of the case rather
than
the procedure employed. The vexatious litigant unreasonably,
persistently and habitually brings unsustainable cases. The third
type of abuse of process cases involve illegal conduct, where the
underlying reasons that motivated it being brought is irrelevant.
The
sole issue is its illegality, an example being an illegal arrest.
These do not abuse the court process, but are illegal in
respect of
other processes and thus also constitute a form of abuse. The fourth
type of abuse is where conduct plays a central,
indispensable role.
Cases like malicious prosecution or the integrity of a private
prosecution fall into that latter category.
The last type of abuse of
process recognised by the Constitutional Court is SLAPP suits.
[182]
At
paragraph 93, the court recognised that ‘[t]here is another
species of abuse, though, that does in my view deserve the

nomenclature abuse of process. It is in the form of what we have
before us in this matter.’ The court also recognised those

instances where a court process was not being utilised to resolve a
genuine dispute but was employed to achieve a result that undermines

the rights in the Constitution. This the court referred to as being
‘abusive litigation’. The court specifically recognised

that abusive litigation would have nothing to do with the right to
access to courts in s 34 of the Constitution. It would be about
the
use of court process and associated legal costs as a means to an
impermissible end and is about motive and consequence.
[76]
The court acknowledged that this kind of abusive litigation would
fall within the common law doctrine of abuse of process and would

consist of a consideration of both the merits and the motive for
bringing the case. The merits would be relevant to the question

whether the Plaintiff had a right to vindicate and the motive would
be relevant to the true object of the litigation.
[183]
The
court in
Mineral
Sands
found that merit plays a central role in a SLAPP suit defence and
consequently there was no need to engage in a s 34 analysis.
A SLAPP
suit defence was specifically a defence in our law as a species of
the common law doctrine of abuse of process.
[77]
[184]
The
Court acknowledged that the common law doctrine of abuse of process
can accommodate the SLAPP suit defence and ensures that
courts can
protect their own integrity by guarding over the use of their
processes. Ultimately, it ensures that the law serves
its primary
purpose, namely to see that justice is done and not to be abused for
odious, or for ulterior purposes.
[78]
[185]
SLAPP suits have specifically been recognised
as a means by which lawsuits are instituted to quash criticism and
debate through
litigation that is deemed an abuse of process. SLAPP
suits involving journalists are instituted to intimidate and harass
them and
prevent them from reporting. This has been a growing trend
internationally and has been recognised by media bodies globally.
SLAPP
suits are not used to vindicate any right but are used rather
to silence journalists who are perceived to report in the public
interest.
[186]
CFE,
MMA and SANEF submit that the private prosecution of Maughan by the
Respondent must be viewed in the context of SLAPP suits.
This in the
context of Maughan reporting on the litigation involving the
respondent since inception and that, of the journalists
who commenced
their reporting of the Respondent, she is among a few who remain
critical in her reporting of him. The decision in
Mineral
Sands
also recognises that SLAPP suits can apply where criminal proceedings
are abused in the same way, although the judgment concerned
the use
of civil proceedings. This has been specifically acknowledged in
Brown
and Another v Papadakis and Another NNO
[79]
and in
Mineral
Sands
[80]
where the court referred to
Phillips
.
[187]
In
view of the
Phillips'
decision there seem to be no merit in the Respondent's assertion and
that of DIA that SLAPP suits ought not to apply to criminal

proceedings or private prosecutions. The respondent submits that if
one were to pursue SLAPP suits in the context of a private

prosecution, the s 34 rights of access to the courts would be
violated. However, the Court in
Mineral
Sands
found that SLAPP suits have nothing to do with the right of access to
courts.
[81]
[188]
We
agree with the submissions of CFE, MMA and SANEF that there exists a
need for protection against SLAPP suits in criminal proceedings
and
that this is particularly evident where a private prosecution is
permitted under the law. Essentially, a private prosecutor
is
‘stepping into the shoes of the state to punish crime’.
Without the inbuilt safeguards recognised in other jurisdictions,

private prosecutions creates an environment where criminal
proceedings and the threat of criminal sanctions are used to
intimidate,
harass, sensor and silence critics. In any event, whilst
our courts have recognised that a private prosecution is used to
facilitate
access to court for victims of crime in circumstances
where the State, declines to prosecute an alleged offence
[82]
they have acknowledged that private prosecutions may amount to an
abuse of process in certain circumstances.
[189]
A
number of international examples have been referenced in which courts
have recognised that SLAPP suits against journalists warrant

protection by the courts. This would be consistent with the
provisions of s 16 of the Constitution which guarantee freedom of
expression, including the freedom of the press and media. The
importance of free engagement and debate on matters of public
importance,
which is often initiated and reported upon by the press,
has received constitutional recognition in
Khumalo
v Holomisa
[83]
where the court remarked that freedom of expression is ‘integral
to a democratic society for many reasons.’ In
South
African Broadcasting Corp Ltd v National Director of Public
Prosecutions and Others
[84]
the Constitutional Court recognised the importance of a free press
for public participation when it held the following:
‘
A
vibrant and independent media encourages citizens to be actively
involved in public affairs, to identify themselves with public

institutions and to derive the benefits that flow from living in a
constitutional democracy. Access to information and facilitation
of
learning and understanding are essential for meaningful involvement
of ordinary citizens in public life.’
[190]
Thus,
the courts have recognised that it is quintessential to the freedom
of expression and freedom of the press to protect the
abuse to
intimidate, sensor and silence journalists by means of SLAPP suits.
SLAPP suits give recognition to the various international
instruments
where the attacks on journalists, specifically female journalists,
have been recognised.
[85]
The
private prosecution of Maughan arises from her reporting specifically
on the Respondent's criminal cases.   Maughan’s

reporting of the Respondent's criminal trial is essential to ensure
that the public learns the truth about the criminal allegations,
sees
justice being done and maintains trust in the criminal justice
system. These are issues which Maughan not only has the right
to
report but a duty to report on. In
Khumalo
[86]
at
paragraph 23, the Court held the following:
‘
It
is the function of the press to ferret out corruption, dishonesty and
graft wherever it may occur and to expose the perpetrators.
The press
must reveal dishonest mal- and inept administration…’
[191]
The
Supreme Court of Appeal “the SCA” has also similarly
recognised the role of the media in reporting on corruption.

This was specifically acknowledged in
Maharaj
and Others v Mandag Centre of Investigative Journalism NPC and
others
[87]
in which the SCA recognised that ‘given the scourge of
corruption, the role of the media in reporting on such activities
is
indubitably in the public interest’ and the media ‘had
not just a right to publish, but indeed a duty to keep the
public
informed’.
[192]
If one accepts the submissions of Maughan
relating to the relief she seeks in the application to interdict the
Respondent, then
we agree with the first to third amici that the
Respondent’s private prosecution of Maughan has all the
elements of a SLAPP
suit in that, it relates to her obligations as a
journalist to report on matters in the public interest.  It
infringes on
her right to freedom of expression specifically, press
freedom and the public's right to receive such information. It has
the effect
of intimidating, harassing and silencing her as its
ulterior motive and for reasons already mentioned in the judgment,
the prosecution
lacks prospects of success. If one accepts Maughan’s
submissions, then she has demonstrated that the Respondent’s
private
prosecution has been instituted for the sole purpose of
silencing her and not to vindicate a right.
[193]
Maughan has, in her founding affidavit and in
the annexures, demonstrated the attacks which have taken place
against her as a journalist
as a consequence of her reporting and
those which have emanated as a consequence of the private
prosecution. She indicates that
such attacks are ongoing and have
escalated and are designed to intimidate and harass her. There are
examples of online intimidation,
which demonstrate the harmful
environment in which journalists, specifically female journalists,
have to conduct their work.
[194]
The Respondent has indicated that the SLAPP
suit defence ought not to be advanced by the
amici
.
However, we agree that the abuse of process is not only available to
the Respondent. Where it can be demonstrated that an
abuse is taking
place it is the court's duty to arrest an abuse of the administration
of justice and such right is available to
the court and the public.
We also do not agree with the Respondent’s submission that by
interdicting the private prosecution,
it would result in the media
and journalists acting with impunity. The submissions of Maughan,
CFE, MMA and SANEF cannot be regarded
as amounting to a blanket
protection from private prosecution or civil proceedings of
journalists.  All it does in this instance
is protect
journalists, members of the press and media houses from a meritless
private prosecution which amounts to an abuse of
process.
[195]
In addition, the fifth
amici
DIA, submits the SLAPP suit defence and the abuse of process argument
ought only to be raised before a criminal court. It has advanced
no
authority for this submission and in any event, earlier on in this
judgment, we have expressly found that the civil court has

jurisdiction to deal with this matter.
[196]
A matter which warrants some attention relates
to the subsequent written submissions which were sent through by DIA
after the matter
had been fully argued and adjourned for the
attention of the court. We have not considered these for the
following reasons. Firstly,
at the hearing of the matter, Mr
Ngalwana
sought to be excused from attendance at the second day of hearing.
This was despite Kruger J raising the possibility of the DIA
needing
to make any further submissions. His reason for not attending and
declining the invitation extended by Kruger J was that
the
amici
did not have a right of reply.
Secondly, no leave was sought from the court for the admission of
these further written submissions
and thirdly, there was an objection
raised to the filing thereof.
[197]
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.
[198]
In the result we grant the following orders:
A:
Case No: 12770/22P
1.
The summons issued out of the KwaZulu-Natal Division of the
High
Court, Pietermaritzburg on 5 September 2022, under case number
CC52/2022P, for the purpose of instituting a private prosecution

against the Applicant by the Respondent is set aside.
2.
The Respondent is interdicted and restrained from reinstituting,

proceeding with, or from taking any further steps pursuant to, the
private prosecution referred to in paragraph 1.
3.
The costs of this application are to be paid by the Respondent
on an
attorney and own-client scale, such costs to include the costs of two
counsel where so employed.
B:
Case No: 13062/22P
1.
The summons, by which the Respondent instituted a private prosecution

of the Applicant in this court in Case CC52/2022P, is set aside.
2.
The Respondent is interdicted from pursuing any private prosecution

of the Applicant on substantially the same charges as those advanced
in the summons set aside.
3.
The Respondent is ordered to pay the Applicant’s costs
on the
scale as between attorney and own client, such costs to include the
costs of two counsel where so employed.
KRUGER J
HENRIQUES J
MASIPA J
CASE INFORMATION
Date
of Set Down

:           10, 20
and 22 March 2023
Date
of Judgment

:           07 June
2023
APPEARANCES
Applicant
WILLIAM
JOHN DOWNER
Counsel
for the Applicant
Geoff
Budlender SC
Hephzibah
Rajah
Attorney
for the Applicant
State
Attorney KwaZulu-Natal
6
th
Floor, Metlife Building
391
Anton Lembede Street
Durban
c/o
DPP KZN
288
Pietermaritz Street
Pietermaritzburg
Email:
ManoPillay@justice.gov.za
Ref:
Kelvin Singh
Email:
Kesingh@npa.gov.za
Applicant
KAREN
MAUGHAN
Counsel
for the Applicant
Steven
Budlender SC
Janice
Bleazard
Attorney
for the Applicant
Willem
de Klerk Attorneys
Le
Val (North Block, South Wing)
45
Jan Smuts Avenue
Westcliff
Johannesburg
Email:
willem@wdklaw.co.za
charl@wdklaw.co.za
tshengo@wdklaw.co.za
Ref:
W de Klerk
Tel:
011 486 0242 / 3
c/o
Viv Greene Attorneys
132
Roberts Road
Pietermaritzburg
Tel:
033 342 2766
Email:
viv@vglaw.co.za
Respondent
JACOB
GEDLEYIHLEKISA ZUMA
Counsel
for the Respondent
Dali
Mpofu SC
Thabani
Masuku SC
Mpati
Qofa Nquabayethu Buthelezi
Ndumiso
Xulu
Attorneys
for the Respondent       :
Ntanga
Nkuhlu Incorporated
Unit
24, Wild Fig Business Park
1492
Cranberry Street
Honeydew
Tel:
010 595 1055
Mobile:
072 137 7104
Email:
mongezi@ntanga.co.za
Ref:
M Ntanga/Z0021/21
c/o
Pranesh Indrajith Attorneys
41
Lahore Road
Pietermaritzburg
Email:
mail@pi-attorneys.co.za
reception@pi-attorneys.co.za
Ref:
Pavi Indrajith
First
to Third Amici
CAMPAIN
FOR FREE EXPRESSION
MEDIA
MONITORING AFRICA TRUST
SOUTH
AFRICAN NATIONAL EDITORS    FORUM
Counsel
for First to Third Amici
Toni
Palmer
Attorneys
for First to Third Amici   :
Webber
Wentzel
90
Rivonia Road
Sandton
Johannesburg
Tel:
011 530 5867
Email:
Dario.Milo@webberwentzel.com
Avani.Singh@webberwentzel.com
Ref:
D Milo/A Singh/ N Shongwe/3057023
c/o
Stowell & Co
293
Pietermaritz Street
Pietermaritzburg
Tel:
033 846 0500
Email:
sarahw@stowell.co.za
Ref:
Josette Manuel
Fourth
Amici  :
HELEN
SUZMAN FOUNDATION
Counsel
for the Fourth Amici
:
Kate
Hofmeyr SC
Mabasa
Sibanda
Attorneys
for the Fourth Amici       :
Adams
& Adams
Lynwood
Bridge Office Park
4
Daventry Street
Lynwood
Manor
Pretoria
Tel:
012 432 6000
Email:
jac.marais@adams.africa
cohen.grootboom@adams.africa
thandiwe.seboletswe@adams.africa
Ref:
JSM/VG/TWS
c/o
Shepstone & Wylie
1
st
Floor, ABSA House
16
Chatterton Road
Pietermaritzburg
Email:
jmanuel@wylie.co.za
Fifth
Amici
DEMOCRACY
IN ACTION
Counsel
for the Fifth Amici
Vuyani
Ngalwana SC
Salome
Manganye
Attorneys
for the Fifth Amici
Ramusha
Mashile Twala Inc
171
Katherine Street
Liberty
Life Office Park
Building
2, 2
nd
Floor, Strathavon, Sandton
Email:
gcwali@rmtattorneys.africa
tawane@rmtattorneys.africa
c/o
Diedricks Attorneys Inc
78
Taunton Road
Wembley
Pietermaritzburg
Tel:
033 342 9808
Ref:
G MAKHATHINI/TM/MAT 14789
[1]
Moyo
and Another v Minister of Justice and Constitutional Development and
Others
;
Sonti
and Another v Minister of Justice and Correctional Services and
Others
2018
(8) BCLR 972 (SCA)
[2]
President
of the Republic of South Africa v J G Zuma and Others
[2023]
ZAGPJHC 11 (16 January 2023)
[3]
Solomon
v Magistrate, Pretoria
1950
(3) SA 603 (T)
[4]
Phillips
v Botha
1999
(2) SA 555
[5]
Mineral
Sands Resources (Pty) Ltd and Others v Christine Reddell and Others
[2022]
ZACC 37
(14 November 2022)
[6]
Zuma v
Democratic Alliance and Another
2021
(5) SA 189 (SCA)
[7]
Nundalall
v DPP KZN and Others
[2015]
ZAKZPHC 25 (8 May 2015)
[8]
Spilhaus
Property Holdings (Pty) Ltd and Others v Mobile Telephone Networks
(Pty) Ltd and Another
2019
(4) SA 406
(CC) paras 44-45.
[9]
Motala
v Master, North Gauteng High Court
2019
(6) SA 68
(SCA) para 65.
[10]
van
Deventer v Reichenberg and Another
1996
(1) SACR 119
(C), at 127 C to G
[11]
S v J G
Zuma and Thales South Africa (Pty) Ltd
[2021]
ZAKZPHC 89 (26 October 2021)
[12]
In order for there to be genuine disputes of fact bald allegations
of denial are not sufficient to create a dispute of fact.
Here
reference is made to the decision by Harms JA in
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para 26.
[13]
Lawyers
for Human Rights v Minister in the Presidency and Others
2017
(1) SA 645
CC para 20.
[14]
Hudson
v Hudson and Another
1927
AD 259
at 267-268.
[15]
Ascendis
Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others
2020
(1) SA 327 (CC).
[16]
S
olomon
v Magistrate, Pretoria, and Another
(1950 (3) SA 603
(T))
supra
.
[17]
van
Deventer v Reichenberg and Another supra
a
t
125 C to D
[18]
Phillips
v Botha supra
at
565 F - G
[19]
Western
Assurance Co v Caldwell’s Trustee
1918
AD 262.
[20]
Hudson
v Hudson and Another supra
[21]
Phillips
v Botha supra
at
565 I.
[22]
Nedcor
Bank Ltd and Another v Gcilitshana and Others
2004
(1) SA 232
(SE).
[23]
Nedcor
Bank Ltd and Another v Gcilitshana and Others supra
at
para 27.
[24]
van
Deventer v Reichenberg and Another supra
at
126H-127C.
[25]
At
125 C – D, 126F – 127C
[26]
Mineral
Sands Resources (Pty) Ltd and Others v Reddell and Others supra
at
para 78.
[27]
Nedcor
Bank Ltd and Another v Gcilitshana and Others supra
at
para 27.
[28]
Nedcor
Bank Ltd and Another v Gcilitshana and Others supra
at
para 31.
[29]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para 37.
[30]
National
Director of Public Prosecutions v Zuma
supra
at
para 38.
[31]
Mineral
Sands Resources (Pty) Ltd and Others v Christine Reddell and Others
supra
at
para 78.
[32]
Since
the matter was adjourned the respondent has instituted the
interlocutory application for the recusal of Downer in the criminal

trial.
[33]
Villa
Crop Protection (Pty) Ltd v Bayer Intellectual Property GmbH
(CCT
237/21)
[2022] ZACC 42
8 December 2022
[34]
African
Farms and Townships Ltd v Cape Town Municipality
1963
(2) SA 555
(A) at
565.
[35]
MEC,
Department of Co-Operative Governance and Traditional Affairs v
Maphanga
2021
(4) SA 131
(SCA) para 25.
[36]
S
olomon
vs Magistrate Pretoria supra
at
607.
[37]
Cape
Town City v South African National Roads Authority and Others
2015 (3) SA 386 (SCA).
[38]
Van
Breda v Media 24 Limited and Others
2017
(2) SACR 491
(SCA) at para 10
[39]
Mineral
Sands Resources (Pty) Ltd & Others v Christine Reddell &
Others supra
.
[40]
Hoffmann
v South African Airways
2001
(1) SA 1
(CC) at 27H-28B.
[41]
In
Re Certain Amicus Curiae Applications: Minister of Health and Others
v Treatment Action Campaign and Others
2002
(5) SA 713
(CC) para 5.
[42]
Uniform
Rule 16A(2) and 16A(5).
[43]
Uniform
Rule 16A(6)(
a
).
[44]
Uniform
Rule 16A(6)(
b
).
[45]
Minister
of Defence v Potsane and Another
;
Legal
Soldier (Pty) Ltd and Others v Minister of Defence and Others
2002 (1) SA 1
(CC) para 9.
[46]
Koyabe
and Others v Minister of Home Affairs and Others (Minister of Home
Affairs as amicus curiae)
2010
(4) SA 327
(CC) para 80, the Constitutional Court made the following
remarks: ‘Amici curiae have made and continue to make an
invaluable
contribution to this court’s jurisprudence.
Most, if not all, constitutional matters present issues, the
resolution
of which will invariably have an impact beyond the
parties directly litigating before the Court.  Constitutional
litigation
by its very nature requires the determination of issues
squarely in the public interest, and insofar as amici introduce
additional,
new and relevant perspectives, leading to more nuanced
judicial decisions, their participation in litigation is to be
welcomed
and encouraged.’
[47]
Chakanyuka
and Others v Minister of Justice and Correctional Services and
Others
(Scalabrini
Centre of Cape Town, The International Commission of Jurists and The
Pan-African Bar Association of South Africa Amicus
Curiae)
2022
JDR 2207 (CC) para 64.
[48]
Minister
of Police and Others v Fidelity Security Services (Pty) Limited
(Sakeliga NPC, National Hunting and Shooting Association,

Professional Hunting Association of South Africa and Gun Owners
South Africa NPC Amicus curiae)
2022
(2) SACR 519
(CC) para 22.
[49]
Economic
Freedom Fighters and Others v Manuel
2021
(3) SA 425
(SCA) para 110.
[50]
S
v Molimi
2008
(3) SA 608 (CC)
[51]
S
v Molimi supra
at
para 22.
[52]
Koka
NO v Willow Waters Home Owners Association (Pty) Ltd (Association of
Residential Communities CC and the National Association
of Managing
Agents Amicus Curiae
)
2013 JDR 1338 (GNP) para 44.
[53]
Ex
parte Goosen and Others
2020
(1) SA 569
(GJ) para 18.
[54]
S
v Engelbrecht (Centre of Applied Legal Studies intervening as Amicus
Curiae)
2004
(2) SACR 391
(W) para 50.
[55]
Bernstein
and Others v Bester and Others NNO
[1996] ZACC 2
;
1996
(2) SA 751
(CC) at 780G-H;
Ex
Parte Speaker of the National Assembly: In re Dispute Concerning the
Constitutionality of Certain Provisions of the National
Education
Policy Bill 83 of
[1996] ZACC 3
;
1995
1996
(3) SA 289
(CC) at 305D-E.
[56]
Nedcor
Bank Ltd and Another v Gcilitshana and Others
supra
at
para 38.
[57]
Beckenstrater
v Rottcher and Theunissen
1955
(1) SA 129
(A) at 140.
[58]
Highstead
Entertainment (Pty) Ltd t/a ‘The Club’ v Minister of Law
and Order and Others
1994
(1) SA  387 (C);
Sex
Worker Education and Advocacy Task Force v Minister of Safety and
Security and Others
2009
(6) SA 513
(WCC) paras 16–28 and 60.
[59]
Nedcor
Bank Ltd and Another v Gcilitshana and Others
supra
[60]
Herbstein
and Van Winsen
The
Civil Practice of the Supreme Court of South Africa
4th ed edited by Dendy at 245.
[61]
Nedcor
Bank Ltd and Another v Gcilitshana and Others supra
at
para
27.
[62]
SLAPP
is an acronym for Strategic Litigation Against Public Participation
[63]
Mineral
Sands Resources (Pty) Ltd and Others v Christine Reddell and Others
supra
[64]
Mineral
Sands Resources (Pty) Ltd and Others v Christine Reddell and Others
supra
at
para
2.
[65]
Mineral
Sands Resources (Pty) Ltd and Others v Christine Reddell and Others
supra
at
para
14.
[66]
Mineral
Sands Resources (Pty) Ltd and Others v Christine Reddell and Others
supra
at
para 15.
[67]
Mineral
Sands Resources (Pty) Ltd and Others vs Christine Reddell and Others
supra
at
paras
42 and 43.
[68]
Lawyers
for Human Rights v Minister of Home Affairs and Others
[2017]
ZACC 22; 2017 (5) SA 480 (CC); 2017 (10) BCLR 1242 (CC).
[69]
MEC,
Department of Co-Operative Governance and Traditional Affairs v
Maphanga
supra
[70]
Phillips
v Botha
1999
(1) SACR 1 (SCA).
[71]
Beinash
v
Wixley
[1997]
ZASCA 32
;
1997 (3) SA 721
(SCA) at 734.
[72]
Ascendis
Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others
supra
[73]
Mineral
Sands Resources (Pty) Ltd and Others vs Christine Reddell and Others
supra
at
para
52.
[74]
Mineral
Sands Resources (Pty) Ltd and Others vs Christine Reddell and Others
supra
at
para
78.
[75]
Mineral
Sands Resources (Pty) Ltd and Others vs Christine Reddell and Others
supra
at
para 90.
[76]
Mineral
Sands Resources (Pty) Ltd and Others vs Christine Reddell and Others
supra
at
para
94.
[77]
Mineral
Sands Resources (Pty) Ltd and Others vs Christine Reddell and Others
supra
at
para
98.
[78]
Mineral
Sands Resources (Pty) Ltd and Others vs Christine Reddell and Others
supra
at
para
100.
[79]
Brown
and Another v Papadakis and Another
2009
(3) SA 542 (C).
[80]
Mineral
Sands Resources (Pty) Ltd and Others vs Christine Reddell and Others
supra
at
para 71.
[81]
Mineral
Sands Resources (Pty) Ltd and Others vs Christine Reddell and Others
supra
at
para 94.
[82]
Section 7 of the CPA,
Nundalall
v Director of Public Prosecutions
KZN
supra
at para 54.
[83]
Khumalo
v Holomisa
2002
(5) 401 (CC) para 21.
[84]
South
African Broadcasting Corp Ltd v National Director of Public
Prosecutions and Others
[2006] ZACC 15
;
2007
(1) SA 523
(CC) para 28.
[85]
United
Nations Special Rapporteur on the promotion and protection of the
right to freedom of opinion and expression, the Organisation
for
Security and Cooperation in Europe representative on Freedom of the
media, the Organisation of American States Special Rapporteur
on
freedom of expression and the African Commission on Human and
People's Rights, Special Rapporteur on freedom of expression
and
access to information. In addition, the UN Human Rights Council,
which adopted a special resolution on the safety of journalists
and
condemned all attacks and violence against journalists.
[86]
The court in Khumalo referred to
Government
of the Republic of South Africa v 'Sunday Times' Newspaper and
Another
1995 (2) SA 221 (T).
[87]
Maharaj
and Others v Mandag Centre of Investigative Journalism NPC and
Others
2018
(1) SA 471
(SCA) paras 22 and 28.