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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA 2018 px. 22 CASENO: 1957772009
6 -05- 22
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_ OFFICE OF Tae ae
DEMOCRATIC ALLIANCE APPLICANT
In the matter between:
and
ACTING NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS FIRST RESPONDENT
THE HEAD OF THE DIRECTORATE OF
SPECIAL OPERATIONS SECOND RESPONDENT
JACOB GEDLEYIHLEKISA ZUMA THIRD RESPONDENT
THE SOCIETY FOR THE PROTECTION OF
OUR CONSTITUTION AMICUS CURIAE
FILING NOTICE
KINDLY TAKE NOTICE THAT the 3° Respondent files its notice of application for
leave to appeal evenly herewith.To:
AND TO:
AND TO:
AND TO:
3° RESPORDENTS ATTORNEYS
HULLEY & ASSOCIATES INC
12™ Floor, The Forum
2 Maude Street, Sandton
(Ref: COLLINS/mh/Z060)
clo F VALLEY ATTORNEYS
418 Standard Bank Chambers
12 Paul Kruger Street
‘Church Square
PRETORIA
REGISTRAR OF THE HIGH COURT
PRETORIA
MINDE SHAPRIO & SMITH
APPLICANT'S ATTORNEYS
Tygorvalley office park bullding no. 2
cnr old oak 7 Willie van Schoor road
‘Tygervalley
CIO KLAGSBRUN EDELSTEIN BO:
20 lange streat
Nieuw Mucleneuk
Pretoria |
tel: 012 452 8900 | 2018 -05- 23 i
fax: 012 452 8901 | yet
REF.: ANISHA JOGI/DM994 | qe oo) |
AN.DE VRIES INE:
THE STATE ATTORNEY
Attomneys for the First and Second Respondents. ATE ATTO!
‘SULA Building PRIVATE BAG/PRIVAATSAK X31
316 Thabo Sehume Street
PRETORIA 2016 -05- 23
(Ref: G P Seleka/M E Ngoatjana/2295/2009/Z65}|
oy. VAY
STAATSPROKUREUR
ZEHIR OMAR ATTORNEYSApplicant's attorneys (as amicus curiae)
clo Friedland Hart Solomon Nicolson Atiomeys
4-301 monument office park
79 steenbok street
monument park
pretoria
(REF: T V STRAATEN/nm/327276)
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ecana «IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA CASE NO: 19577/2009
In the matter between:
DEMOCRATIC ALLIANCE APPLICANT
ACTING NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS FIRST RESPONDENT
THE HEAD OF THE DIRECTORATE OF
SPECIAL OPERATIONS SECOND RESPONDENT
JACOB GEDLEYIHLEKISA ZUMA. THIRD RESPONDENT
‘THE SOCIETY FOR THE PROTECTION OF
OUR CONSTITUTION AMICUS CURIAE
‘THIRD RESPONDENT’S NOTICE OF
APPLICATION FOR LEAVE TO APPEAL
BE PLEASED TO TAKE NOTICE that the third respondent intends applying on a date to be
arranged with the Registrar of this Honourable Court for leave to appeal to the Supreme Court
of Appeal against the whole of the judgment and the order of the Honourable Justices Ledwaba
DIP, Pretorius J and Mothle J, delivered and made on 29 April 2016.age 2
TAKE NOTICE FURTHER that the grounds on which the application is based are the
following:
1
‘The Court erred as a matter of law in the following material respects:
1d
12
In its interpretation and application of the case law relating to rationality as
ground for a legality challenge.
In holding that:
1.24
1.2.2
The National Director of Public Prosecutions (*NDPP”) is not entitled to
terminate a prosecution on the basis of prosecutorial misconduct and the
abuse of the prosecutorial process (referred to hereafter as “abuse of
process”);
Where allegations of abuse of process are made, the NDPP is obliged to
continue with the prosecution and require the Court to make a decision
as to whether the prosecution should be terminated (as opposed to taking
a decision to terminate the prosecution on the basis of such conduct).13
14
15
In conflating the respective roles of the NDPP and the Courts in circumstances
where allegations of abuse of process are made.
In its interpretation and application of the foreign authorities, including HKSAR
v Lee Ming Tee and R v Latif.
1.5.1 finding that the authorities referred to by the respondents did not support
Mr Mpshe’s decision.
1.5.2 finding that Mr Mpshe’s decision did not meet the test for rationality.
1.5.3. holding that Mr Mpshe’s failure to refer the abuse of process allegations
to the Court rendered his decision irrational.
1.5.4 failing to hold that abuse of process can justify a decision by the NDPP
to the discontinue a prosecution, even in instances where the conduct
does not directly bear upon the merits of the charges (where the integrity
of the process has been compromised).The Court erred in its evaluation of the evidence placed before it by the respondents in
the following material respects:
21
2.2
23
2.4
In failing to accept the third respondent's allegations, and the allegations of the
NDPP, which were undisputed, or not meaningfully disputed by the applicant.
In failing to apply the Plascon-Evans test in relation to the disputes of facts on
the papers and, as a consequence of such failure, in rejecting the evidence of the
respondents on the papers.
In finding, in relation to Mr Mpshe personally:
2.3.1 Disingenuity on his part;
2.3.2 Deliberate conduct on his part to exclude the prosecution team and the
Director of Public Prosecutions, KwaZulu-Natal from the decision.
2.3.3 That he had acted in a secret manner.
In finding that Mr Mpshe’s decision’ was a consequence of his (subjective)
feelings of anger and betrayal and that those feelings caused him to act
impulsively and irrationally.25
2.6
27
2.8
2.9
In finding that Mr Mpshe was subjected to undue pressure which deprived him
of the time and space to properly apply his mind to the matter.
In reasoning that Mr Mpshe’s statement on 6 April 2009 constituted all of the
reasons for deciding to terminate the prosecution (and failing to give any or
appropriate weight to the previous events and other undisputed evidence,
including the Browse Mole Report)
In failing to find that the allegations against Mr McCarthy in the transcript of the
recorded conversations and his role in the Browse Mole Report had been proved
by the respondents alternatively that the respondents’ allegations in that regard
had to be accepted on the Plascon-Evans test.
In finding that Mr Mpshe advanced new and contradictory explanations.
In holding that Mr Mpshe was obliged to request the views of other members of.
the NPA before taking a decision, finding that he failed to do so and finding that
such failure to “source” the views of other NPA members was irrational.3.
‘The Court erred as matters of fact and law in:
31
32
33
Accepting that the Browse Mole Report revealed an unofficial attempt to
besmirch the person and integrity of the third respondent, but failing to conclude
on the available evidence that the Report compromised the fairness and integrity
of the prosecution process entitling the NDPP to terminate the prosecution.
Accepting that the charges were formally withdrawn against the third respondent
on 8 April 2009 before the KwaZulu-Natal High Court, but thereafter rejecting
the third respondents assertion that the relief sought by the applicants would be
of no consequence and concluding that the third respondent should face those
charges.
Accepting that, in deference to the doctrine of separation of powers it is
inappropriate for a Court hearing an application to review a decision to
prosecute, upon deciding to set aside the decision, to step into the shoes of the
prosecution, but failing, upon its finding that the decision of the first respondent
was irrational (which is not accepted) to refer the matter back to the NDPP for
reconsideration.3.4 Inholding that, since Mr McCarthy’s alleged conduct was intended to delay the
service of the indictment on the third respondent until after the Polokwane
Conference, the third respondent would not have been disadvantaged, and
failing to hold that the act of influencing the process itself compromised the
prosecution.
3.5 In finding that the Browse Mole Report was immaterial to the first respondent's,
decision and that there is no rational link between Mr McCarthy’s conduct and
the first respondent's decision to discontinue the prosecution,
In attaching no weight to the affidavit evidence of Mr McCarthy to a High Court
that the prosecution process was of the highest integrity when he was fully
aware that the DSO was and had been engaged in an illegal investigation into
the general conduct of the third respondent.
3.7 In upholding the application with costs.
The appeal has reasonable prospects of success.‘The appeal raises important issues of law and fact including, inter alia:
5.1
52
53
34
58
The nature and extent of the power and discretion of the NDPP to terminate a
Prosecution in instances of prosecutorial misconduct and abuse of prosecutorial
power.
‘The power of the Court to review and set aside, under the principle of legality, a
decision of the NDPP to terminate the prosecution on grounds of prosecutorial
misconduct and abuse of prosecutorial power.
The nature and extent of a Court’s discretion in relation to the appropriate
remedy in matters in which a Court decides to review and set aside the NDPP*s
decision to terminate a prosecution on grounds of prosecutorial misconduct and
abuse of process.
The proper interpretation of the NPA Act, 1998, the Prosecutorial Policy
Regulations and other legal instruments relating thereto, as well as the case law,
relating to the powers of the NDPP to terminate a prosecution on the basis of
abuse of process and the consequences thereof.
The effect of setting aside a decision to terminate a prosecution where the
charges were formally withdrawn before a Court after the decision was taken,6. The matters sought to be raised on appeal:
6.1 Raise public interest issues deserving of the attention of the Supreme Court of
Appeal.
6.2 Are of considerable importance to the third respondent.
6.3 Require determination by the SCA for the purpose of providing certainty in
regard to the nature and extent of the first respondent's powers to discontinue a
prosecution and the consequences thereof.
7. Leave to appeal to the Supreme Court of Appeal is accordingly merited and should be
granted. The costs of the application for leave to appeal should be costs in the cause,
DATED AT JOHANNESBURG ON THIS DAY OF MAY 2016.10
HULLEY & ASSOCIATES INC
THIRD RESPONDENT'S ATTORNEYS.
C/O F VALLEY ATTORNEYS
418 STANDARD BANK CHAMBERS
12 PAUL KRUGER STREET
CHURCH SQUARE
PRETORIA
(REF: Y LANDSBERG)
TO: THE REGISTRAR OF THE HIGH COURT
PRETORIA
AND TO: —MINDE SCHAPIRO & SMITH ATTORNEYS
APPLICANT’S ATTORNEYS (MAIN APPLICATION)
C/O KLAGSBRUN EDELSTEIN BOSMAN
DE VRIES INC
220/2 LANGE STREET
NEW MUCKLENEUK
PRETORIA
(REF: H STRUWIG/RN/DM994)1
AND TO:
AND TO:
ZEHIR OMAR ATTORNEYS
APPLICANT'S ATTORNEYS (AS AMICUS CURIAE)
C/O FRIEDLAND HART SOLOMON NICOLSON ATTORNEYS
4-301 MONUMENT OFFICE PARK
79 STEENBOK STREET
MONUMENT PARK
PRETORIA
(REF: T V STRAATEN/nm/327276)
THE STATE ATTORNEY
FIRST AND SECOND RESPONDENT'S ATTORNEYS
SULA BUILDING
316 THABO SEHUME STREET
PRETORIA
(REF: G P SELEKA/ M E NGOATJANA/2295/2009/Z65