Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
13 June 2023

Searing Labour Court judgment’s salutary lesson for lawyers bringing hopeless Zuma cases to court

A recent Labour Court judgment comes as a timely warning to legal representatives who assist their wealthy or politically powerful clients to delay or entirely escape legal accountability for their unlawful or criminal actions.

While reading the recent Labour Court judgment in the case of University of South Africa v Socikwa and Others (penned by Acting Judge Smanga Sethene and handed down on the same day that a full bench of the KwaZulu-Natal high court held that Mr Jacob Zuma’s private prosecution of Billy Downer and Karyn Maughan constituted an abuse of the court process), I could not help wondering what the many legal representatives who have assisted Mr Zuma over the past 19 years to avoid having his day in court to answer charges of fraud and corruption, would make of it.

The Labour Court judgment serves as a searing indictment of unscrupulous lawyers who mislead the court or bring utterly hopeless cases to court, and thus enable their filthy rich clients (or clients corruptly bankrolled by filthy rich benefactors) to abuse the legal process.

The judgment opens with a bang by quoting the following passage from an academic article written by Duncan Webb and published in the Victoria University of Wellington Law Review a few years ago:

Where a hopeless case is brought with the assistance of the advocate, the advocate must either be bringing it in the knowledge that it is hopeless (and therefore assisting in an abuse), or believing that it is not hopeless (and therefore incompetent) or not caring whether it is hopeless (and therefore guilty of recklessness or gross negligence). In any of these cases, the conduct of the advocate warrants action being taken by the court.

While not all the cases brought by Mr Zuma to delay his criminal prosecution were entirely hopeless, many of them were, with the most hopeless case of them all being the doomed attempt to prosecute privately Billy Downer (the lead prosecutor in Zuma’s fraud and corruption case), and Karyn Maughan (a journalist who has been reporting on Zuma’s ongoing attempts to avoid his day in court over the past 19 years).

Leaving aside the various technical problems with Mr Zuma’s attempt to prosecute privately Downer and Maughan, the most glaring problem with Mr Zuma’s attempt to use the mechanism of private prosecutions to have the prosecutor against him removed and to silence an independent female journalist, is that the entire folly is based on a false factual premise, namely that Downer and Maughan had been involved in the leaking or publication of Mr Zuma’s private medical information contained in confidential documents.

We had known for many months that there was no factual basis for the private prosecutions, because the KwaZulu-Natal high court had made this clear back in October 2021 in S v Zuma and Thint (in a judgment penned by Judge Piet Koen). Judge Koen held (as was abundantly clear to anyone vaguely familiar with the applicable legal rules) that the documents on which Maughan reported revealed no private medical information about Mr Zuma, and were in any case not confidential at the time the documents were shared with her and she reported on them.

Both the Supreme Court of Appeal (SCA) and the Constitutional Court had also dismissed Mr Zuma’s applications for leave to appeal judge Koen’s findings to either court, which means that there was no genuine dispute of fact, and it must have been obvious to Mr Zuma and his lawyers that the prosecutions could never succeed. Yet, the prosecutions were instituted and when this was challenged, more time and money was wasted on Mr Zuma’s lawyers defending the indefensible.

This is partly why the full bench of the court held last week in Maughan v Zuma and Others that Mr Zuma’s attempt to prosecute Downer and Maughan constituted an abuse of the legal process, and interdicted him from “reinstituting, proceeding with, or from taking any further steps pursuant to the private prosecution” of either of them. As the court pointed out, 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 quoted approvingly from Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others, where the Constitutional Court held that:

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.

While a prosecution (whether private or not) will not be unlawful merely because a prosecutor seeks to secure a conviction for an ulterior motive, a prosecutor who does not seek to secure a conviction at all (as was the case with Zuma’s prosecution of Maughan and Downer), but only to oppress and harass individuals, and to sabotage the criminal justice system, will make himself guilty (as Zuma did with the assistance of his legal representatives) of an abuse of process.

What made things worse for Mr Zuma is that his lawyers made no attempt to provide any evidence to refute the mostly undisputed facts. Instead, as the court noted, “there are blanket, bald denials of material allegations without laying any factual basis therefor or any explanation to justify his denials”. This is not surprising as there are no factual bases for the blanket denials made by Mr Zuma’s lawyers.

While this cavalier attitude to the truth was rather dubious, Mr Zuma’s lawyers at least did not submit a sworn affidavit containing blatant lies to the court — as the Acting Executive Director of Legal Services at Unisa,  Prof Vuyo Ntsangane Peach did to the Labour Court in the University of South Africa v Socikwa matter.

The court was rather displeased by this dishonesty, complaining that “Prof Peach… elected to be a stranger to the truth. Or perhaps, Prof Peach deliberately meandered into amnesia as a tactic to deceive the court.” As a result, Acting Judge Sethene referred Prof Peach to the Legal Practice Council (LPC) “to establish if [he] deliberately concealed material facts to this court in respect of when the review application was actually filed and served”.

The court was even more displeased that the legal representatives of Unisa, among others, had been instrumental in launching “absolutely hopeless urgent applications”, thus abusing the court process. The judge then issued a warning that could easily have been directed at dozens of legal practitioners who, over the past 19 years, have aided Mr Zuma to abuse the court process:

Once appointment is confirmed and accepted, the forensic skills of legal practitioners must be ignited to ensure that they protect the court from the burden of entertaining and adjudicating absolutely hopeless cases. It remains the duty of a legal practitioner to act in the best interests of his or her client. Acting in the best interest of the clients also denotes that a legal practitioner has an obligation to disclose to the client that the case sought to be pursued is either absolutely hopeless or has prospects of success.

The judgment hints at the fact that a love of money (or one could call it greed) is one of the main reasons some legal representatives aid their clients to abuse the court process by bringing utterly hopeless cases to court on their behalf:

Understand: it must be deprecated by those who attach premium and prestige to their trade as legal practitioners to align themselves with cases that are absolutely hopeless for pecuniary reasons and thereby rendering courts as instruments to frustrate employees or employers with worthy cases for the court to adjudicate.

As a result, and at least partly because the Labour Relations Act contains provisions on the awarding of costs that allows for it, the court ordered the legal practitioners (both advocate and attorneys) who represented Unisa in this application “not to charge any fee for legal services rendered”, or if they had already been paid to repay Unisa within 60 days.

Had the many courts forced over the past 19 years to hear one after the other hopeless cases brought by Mr Zuma and his lawyers made similar orders prohibiting Mr Zuma’s lawyers from charging any fees, Mr Zuma might by now have run out of lawyers willing to represent him.

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