The facts of the matter are simple - this is a nonsense case. So why is Zuma doing it? To intimidate and threaten journalists, writes Adriaan Basson.
Former president Jacob Zuma wants to jail a journalist for reporting on court papers and a letter from his doctor submitted by his own lawyers to court.
On Tuesday morning, the sheriff of the High Court arrived at the office of News24's attorneys with a peculiar package.
We have been sued before. It is the constitutional right of every person who believe we defamed them through our journalism to institute a damages claim, which we will defend.
But the documents in the sheriff's possession were of a different nature: "summons in a criminal case".
On page one of the bundle: "In the matter of Jacob Gedleyihlekisa Zuma versus William John Downer and Karyn Maughan." Maughan works for News24. She is our specialist legal journalist with more than 20 years of experience in reporting on court cases and legal matters.
Downer is a veteran prosecutor assigned to Zuma's corruption case.
It took a moment to sink in: the former president of the country, himself a corruption-accused and main culprit in the Zondo Commission's state capture report, wants to privately prosecute and jail a journalist for doing her job.
The facts of the matter are relatively simple.
Zuma was jailed for 15 months in July last year after being found guilty of contempt of court by the Constitution Court for refusing to appear before Chief Justice Raymond Zondo's inquiry into state capture.
After two months in prison, most of it in the medical ward or hospital, Zuma was released on medical parole by then prisons boss Arthur Fraser.
While he was in jail, Zuma's corruption case was scheduled to resume in the Pietermaritzburg High Court on 10 August last year.
On 6 August, the Department of Correctional Services advised the National Prosecuting Authority (NPA) that Zuma had to undergo emergency treatment at a hospital in Pretoria. This meant he would not be in a position to attend court proceedings in his corruption trial four days later.
In support of his medical situation, a letter from Brigadier General Dr Mcebisi Zukile Mdutywa of the South African Military Health Service was provided to the NPA and Zuma's attorneys. The letter is marked "medical confidential" and mentions that Zuma had suffered a "traumatic injury" (without disclosing the nature of his ailment) in November 2020.
He needed "an extensive emergency procedure" that has been delayed for 18 months and couldn't be delayed again because it carried a "significant risk to his life".
As is normal with applications for postponements of court cases, both parties would file court papers ahead of the hearing.
On 9 August, a day before the hearing, Maughan inquired from advocate Andrew Breitenbach, who represented the State in the application, whether either side has filed court papers on which she could report.
Breitenbach sent her an unsigned copy of Downer's affidavit concerning the application for a postponement on the express condition that she only reports on the document once it was filed with the court. Maughan agreed.
Zuma takes issue with the fact that Breitenbach gave Maughan access to Downer's affidavit, to which the Mdutywa letter was attached, BEFORE it was filed at court. Maughan expressly agreed not to write anything on it before it was filed at court.
But it gets better. The next morning, on the day of the court hearing, Breitenbach sent Maughan a copy of Zuma's application papers AFTER they were filed at court. Zuma's papers, led by an affidavit from his attorney Bethuel Thusini, also had the "confidential" Mdutywa letter attached to it!
About two hours later, at 09:14 on 10 August, News24, for the first time, published details from the Mdutywa letter AFTER it was filed at court by Zuma's own lawyer.
Judge Piet Koen already remarked in his ruling that dismissed Downer's removal from the case that he was not convinced the inclusion of Mdutywa's letter in the State AND defence's court papers constituted an "actionable violation" of his rights to privacy.
After the NPA refused to prosecute Downer for including the letter in his court papers (a criminal case was never opened against Maughan), a nolle prosequi certificate was given to Zuma's legal team and they have now instituted a private prosecution against Downer and Maughan.
If you think this is a nonsense case, you are right. So why is Zuma pursuing this action?
My view is that this is his latest Stalingrad move to prevent his own corruption trial from resuming in November. This is another sideshow to keep him out of the dock, to answer the questions he has been dodging for almost two decades.
Added to that, this is clearly an attempt to intimidate Maughan and other journalists covering his many travails. He could have chosen to pursue a civil case or damages claim against us, but he has chosen to go the criminal route.
This is a dangerous attack on media freedom and the safety of journalists, and we will defend Maughan every step of the way.
"Burn the bitch" read the posters of Zuma's supporters at his rape trial. Is "jail the journalist" next?
- Adriaan Basson is editor-in-chief of News24 and author of Zuma Exposed (Jonathan Ball).
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