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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CCT: 12016
[a quo: 19577/2009}

In the matter between:

THE ACTING NATIONAL DIRECTOR


OF PUBLIC PROSECUTIONS First Applicant

THE HEAD OF THE DIRECTORATE OF


SPECIAL OPERATIONS Second Applicant

and

DEMOCRATIC ALLIANCE First Respondent

JACOB GEDLEHIHLEKISA ZUMA Second Respondent

In re:

DEMOCRATIC ALLIANCE Applicant

and

THE ACTING NATIONAL DIRECTOR


OF PUBLIC PROSECUTIONS First Applicant

THE HEAD OF THE DIRECTORATE OF


SPECIAL OPERATIONS Second Applicant

JACOB GEDLEYIHLEKISA ZUMA Third Respondent

THE SOCIETY FOR THE


PROTECTION OF OUR CONSTITUTION Amicus Curiae

·--- ------ -------· ----


NOTICE OF MOTION

TAKE NOTICE that the Applicants hereby apply to the Constitutional Court in

terms of Rule 19 of the Rules of the Court for an Order in the following terms:
,_
')

1. The Applicants are granted leave to appeal against the judgment and

order of the Full Bench of the High Court, Gauteng Division, Pretoria

(sitting as a court of first instance), which judgment was delivered on

29 April 2016.

2. The costs of the application are costs in the appeal; alternatively

directing any party who opposes this application to pay the costs

thereof.

TAKE NOTICE that the accompanying affidavit of GOSIAME PETER

SELEKA is used in support of this application.

TAKE NOTICE FURTHER that within ten days from the date upon which this

application is lodged, the Respondents may respond thereto in writing, as

provided for in Rule 19(4)(a), indicating whether or not the application for

leave is being opposed and, if so, the grounds for such opposition. The

Respondents must, in that event, appoint an attorney within the area of the

Constitutional Court to accept service of all documents in this matter.

~
THIS )Lf DAY OF JULY 2016

THE STATE ATIORNEY, PRETORIA


Attorneys for the First
and Second Applicants
316 SALU Building
Cnr. Francis Baard and
Thabo Sehume Streets
PRETORIA
Tel: 012 309 1545/1500/1543
Fax: 012 309 1649/50
3

Direct Fax: 086 629 0146


E-mail: Pseleka@iustice.gov.za
Ref: G P Seleka
2295/2009/265
to:
THE REGISTRAR OF THE
CONSTITUTIONAL COURT
JOHANNESBURG

and to:
MINDE SHAPIRO & SMITH INC
Attorneys for First Respondent
KlagMo,,,r, Edelstein Bosman de VriHs I
care of: KLAGSBRUN EDELSTEIN Recr.rvoiJ W,ihcn,t Prnjudn:(, / OntV"llCJ .s,,11do1· B• . 11:c.
.. . , ,., ..,nr1oc mg
BOSMAN DE VRIES INC
220 Lange Street
NIEUW MUCKLENEUK, Pretoria 2016-07-1 5 ~
Tel: 012 452 8900
Fax: 012 452 8901
E-mail: hugo@kebd.co.za --
Ref: Hugo Struwig/PM/CM994
Received copy hereof this
day of July 2016

for: First Respondent Attorneys

Receivtf1 copy hereof this


IS' day of July 2016
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CCT: 12016

[a quo: 19577/2009]

In the matter between:

THE ACTING NATIONAL DIRECTOR OF PUBLIC


PROSECUTIONS First Applicant

THE HEAD OF THE DIRECTORATE OF SPECIAL


OPERATIONS Second Applicant

and

DEMOCRATIC ALLIANCE First Resp,)ndent

JACOB GEDLEYIHLEKISA ZUMA Second Respondent

In Re:

. DEMOCRATIC ALLIANCE Applicant

and

THE ACTING NATIONAL DIRECTOR OF PUBLIC


PROSECUTIONS First Respondent

THE HEAD OF THE DIRECTORATE OF SPECIAL


OPERATIONS Second Respondent

JACOB GEDLEHIHLEKISA ZUMA Third Respondent

THE SOCIETY FOR THE PROTECTION OF


OUR CONSTITUTION Amicus Curiae

TABLE OF CONTENTS
Page no Paras

Introduction 2 3-5

Parties 3

The Applicant for leave to appeal 3 6-7

The Respondents in the application for


leave to appeal 4 8-9

Leave to appeal to the Constitutional Court 5 10

Direct application for leave to appeal 7 11

The Constitutional issue 7 12-16

Arguable point of law of general


public importance 9 17-19

Interests of justice 9 20

Grounds upon which the judgment of the


Court a quo are disputed 10

First Ground 10 21-39.

Second Ground 17 40-46

Third Ground 21 47-56

Fourth Ground 24 57-62

Fifth Ground 28 63-69

Sixth Ground 30 70-73

Conclusion 32 74-77
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CCT: - - - - - '/2016

[a quo: 19577/2009}

- In the matter between:

THE ACTING NATIONAL DIRECTOR OF PUBLIC


PROSECUTIONS First Applicant

THE HEAD OF THE DIRECTORATE OF SPECIAL


OPERATIONS Second Applicant

and

DEMOCRATIC ALLIANCE First Respondent

JACOB GEDLEYIHLEKISA ZUMA Second Respondent

In Re:

DEMOCRATIC ALLIANCE Applicant

and

THE ACTING NATIONAL DIRECTOR OF PUBLIC


PROSECUTIONS First Respondent

THE HEAD OF THE DIRECTORATE OF SPECIAL


OPERATIONS Second Respondent

JACOB GEDLEHIHLEKISA ZUMA Third Respondent

THE SOCIETY FOR THE PROTECTION OF


OUR CONSTITUTION Amicus Curiae

AFFIDAVIT IN SUPPORT OF APPLICATION FOR DIRECT APPEAL


2

I, the undersigned,
GOSIAME PETER SELEKA

do hereby make oath and state as follows:

1. I am a Senior Assistant State Attorney in the Office of the State

Attorney at 316 SALU Building, corner of Francis Baard and

Thabo Sehume Streets, Pretoria. I am duly authorized, by the

National Director of Public Prosecutions, who is out of the country,

to bring this application for leave to appeal.

2. The facts herein contained are within my personal knowledge,

save or where otherwise stated or where the contrary is indicated,

and are to the best of my knowledge and belief, both true and

correct. Where the contents are not within my personal

knowledge, they appear from the record in these proceedings or I

state the source thereof.

INTRODUCTION

3. The First and Second Respondents cited in the Court a quo 1 apply

for leave to appeal directly to this Court against the Judgment and

Order of the Gauteng Division of the High Court, sitting in Pretoria,

(the "Court a quo"), handed down on 29 April 2016, a copy of

which is attached as Annexure "A". This is not a "conditional"

See paragraphs 5.1 and 5.2 below.


3

applicatio11 for leave to appeal; leave is not bei11g sought

concurrently from the Supreme Court of Appeal, nor is it the

intention to do so.

4. I have, however, been informed that the Second Respondent, Mr

Zuma, is not applying to the Constitutional Court for leave to

appeal but is applying to the Supreme Court of Appeal for leave.

5. The Court a quo denied an application for leave to appeal on 24

June 2016.

PARTIES

The Applicant for leave to appeal

6. When the application brought by the Democratic Alliance, (which

forms the subject matter of this application for leave to appeal),


2
was launched in 2009 , the Acting National Director of Public

Prosecutions was cited as the First Respondent, and the Head of

the Directorate of Special Operations was cited as the Second

Respondent. At that time:

6.1 The Acting National Director of Public Prosecutions

("ANDPP") was Adv Mokotedi Mpshe ("Adv Mpshe"). He

2
The application was brought in the Gauteng Division, Pretoria (then called North
Gauteng High Court, Pretoria) under case no. 19577/2009.
was appointed as ANDPP on 1 February 2009, and held

the position until 31 July 2010.

6.2 The Head of the Directorate of Special Operations ("DSO")

was Adv Leonard McCarthy ("Mr McCarthy"). The DSO

was disbanded at the end of 2009 and has not existed as

an entity within the National Prosecuting Authority since

that time. (The incumbent National Director of Public

Prosecutions ("NDPP") is Adv Shaun Abrahams who was

appointed on 18 June 2015.)

7. In this application for leave to appeal, for ease of reference, the

First and Second Respondents cited in the Court a quo are

referred to as "the Applicant".

The Respondents in the application for leave to appeal

8. The First Respondent is the Democratic Alliance, a registered

political party that sits as the official opposition in Parliament of the

Republic of South Africa (the "Democratic Alliance").

9. The Second Respondent is Jacob Gedleyihlekisa Zuma, the

President of the Republic of South Africa, who was cited as the

Third Respondent in the Court a quo.


LEAVE TO APPEAL TO THE CONSTITUTIONAL COURY

10. The relevant procedural history of this matter is as follows:

10.1. The application was brought by the Democratic Alliance in

April 2009.

10.2. Following a number of interlocutory applications heard by

various Courts, the main application was argued before

the Full Bench of the Gauteng Division, Pretoria on 1st,

2nd and 3rd of March 2016.

10.3. Judgment in favour of the Democratic Alliance was

delivered on 29 April 2016.

10.4. The Applicant, including President Zuma applied for leave

to appeal to the Supreme Court of Appeal. Argument was

heard on 10 June 2016 and the Full Bench delivered its

Judgment refusing leave to appeal on 24 June 2016. A

copy of the Judgment refusing leave to appeal is attached

hereto marked "B".

10.5. Whilst the National Prosecuting Authority ("NPA") initially

gave instructions to apply for leave to appeal to the

Supreme Court of Appeal, the issue concerning leave to

appeal was reconsidered afresh following the 16 page


6

Judgment refusing leave to appeal. I was present at a

meeting of senior members of the NPA when the issue

was discussed.

10.6. Subsequent to the meeting I was informed that a decision

had been taken not to seek leave to the Supreme Court of

Appeal but rather to the Constitutional Court. The reasons

for this are that the case raises constitutional issues,

particularly separation of powers and it is most likely that a

further appeal to this Court is inevitable.

10. 7. Moreover, the case raises arguable points of law of

general public importance that should be considered by

this Court.

10.8. Some of these points affect the functioning and powers of

the NPA and it is important that these disputes be resolved

as soon as possible. The application was brought in 2009

and these important matters should be resolved without

further undue delay.


DIRECT APPLICATION FOR LEAVE TO APPEAL

11. I address hereunder the jurisdictional issues as required by Rule


3
19(1)(a) and (b) of the Rules of the Constitutional Court.

The Constitutional issue

12. The appeal raises issues of a quintessentially constitutional

nature. The NDPP is appointed by the President in terms of

section 179{1(a) of the Constitution. In terms of section 179(2) of

the Constitution, the Prosecuting Authority has the power to

institute criminal proceedings on behalf of the State, and to carry

out any necessary functions incidental to instituting criminal

proceedings. In terms of section 179(5)(d) of the Constitution, the

NDPP may review a decision to prosecute or not to prosecute.

13. The case concerns the withdrawal of a prosecution against the

President of the countryon the grounds of prosecutorial abuse of

process. A central issue is whether it was incumbent upon the

NDPP to refer the complaint of abuse of process to court and

whether his failure to do so rendered his decision to withdraw the

prosecution against Mr Zuma irrational.

3
As read with the Practice Direction dated 17 March 2015: INTERIM READING OF
RULE 19 PENDING REVISION OF COURT'S RULES.
14. In the circumstances, the Constitutional Court has jurisdiction by

virtue of section 167(3)(b)(i) of the Constitution which provides that

it "may decide Constitutional matters and issues connected with

decisions on Constitutional matters".

15. After finding that the decision to withdraw the charges against Mr

Zuma was irrational, the Court a quo stated that Mr Zuma should

face the charges as outlined in the indictment. 4 This raises a

constitutional issue, and particularly whether the charges

withdrawn by the ANDPP and which the Court a quo said Mr

Zuma should face, are extant; or if it is in the hands of the present

NDPP to decide whether to continue with the existing charges, or

to consider whether new charges should be preferred against Mr

Zuma. This raises separation of powers issues.

16. The question and circumstances under which the NDPP can

exercise the powers vested in terms of 179(5)(d) of the

Constitution is a matter of general public importance. It is an

arguable point that this is an unfettered discretion vested in the

NDPP which can be reviewed, but the NDPP is not required to

approach a court before exercising this power. The Applicant will

argue that it is open to the NDPP to make the decision, without

4
Annexure A: Judgment: p 46 para 92.
recourse to court. (Of course, that decision will always be subject

to review.)

Arguable Point of Law of General Public Importance

17. Section 167(3)(b)(ii) of the Constitution provides that the Court

"may decide any other matter .... that raises an arguable point of

law of general public importance".

18. This is clearly a matter of public importance in that it concerns the

President of the country and the possible institution of criminal

charges against him whilst he is in office.

19. The ANDPP withdrew the charges based on abuse of process

which concerned former President Mbeki. The rationality of the

decision to withdraw the charges based on abuse of process is an

arguable point of law.

Interests of Justice

20. This matter not only involves whether the President should face

criminal charges, it also concerns the powers of the NPA, the

limitation of those powers and the test for rationality applied to the

circumstances of this case. I respectfully submit that there are

good prospects of success which, combined with the importance


1[]

of the issues, suggest that it is in the interests of justice that leave

to appeal be granted.

GROUNDS UPON WHICH THE JUDGMENT OF THE COURT A QUO

ARE DISPUTED

First Ground

21. The Court a quo found that the decision taken by Adv Mpshe to

withdraw the charges was irrational because he did not refer the

complaint of abuse to court. 5 With respect, this is to put the cart

before the horse.

22. In terms of s.179(2) of the Constitution read with s.22(9) of the

National Prosecuting Authority Act6 ("NPA Act"). It is the NDPP

that is vested with the power to prosecute or not to prosecute. 7 ·

This is not vested in the courts in terms of either the Constitution

or the NPA Act.

23. The court may thereafter review such decision taken by the NDPP

on the grounds of irrationality and the principle of legality in terms

of the Constitution. 8 However, it is axiomatic that the decision to

5
Annexure "A" Judgment: p 32-35, paras 64, 65 and 71
6
No. 32 of 1998
7
NDPP v Freedom Under Law ("FUL") 2014 (4) SA 298 (SCA), p 306-309, paras [20]-
[27]
a
See NDPP v FUL above at para [28]
discontinue the prosecution, as in the present case, is first taken

by the NDPP.

24. It is submitted that the Court a quo erred in its finding in paragraph

Z1 of the Judgment that Adv Mpshe, by not referring the complaint

of abuse of process and the related allegations against Mr

McCarthy to court, rendered his decision irrational. 9

25. In paragraph 64 of the Judgment1°, the Court a quo chided Adv


11
Mpshe for omitting to mention that the court in both the HKSAR

appeal and the Latit1 2 matters were of the view that the

determination of the principles of abuse of process was an

exercise for a court of law and not an extra-judicial

pronouncement. 13

26. It is submitted that the court erred in analogising the facts of the

HKSAR and Latif cases to the present case.

27. Both of the aforementioned foreign judgments concerned an

application by the accused in each case for a stay of prosecution.

9
Annexure "A": Judgment: p 35, para 71
10
Annexure "A": Judgment: p 32, para 64
11
HCCC 191/1999 (unreported judgment of the Hong Kong High Court and the
Appeal case FACC No 1 of 2003).
12
1996 (1) WLR 104.
13
See also Annexure "A": Judgment: p 32, para 65. It is to be noted that the Hong
Kong Court of Final Appeal said that the "question is debatable".
~i 2

The applications for a stay occurred in the trial of the respective


14
accused.

28. This is a far cry from a case where the prosecution itself believes

that there has been an abuse of process. It could not be expected

of the prosecution, in such circumstances, to continue to prepare

on the merits of the case and then, when the trial commences, to
·-·
inform the court that it believes that there has been an abuse of

process which requires the discontinuation of the proceedings. By

that stage, the accused would no doubt have been informed of the
'-'•

abuse which the prosecution believes requires the discontinuation

of the proceedings, and the accused would no doubt support the

discontinuation of the proceedings.


·-

29. It would lead to an absurdity if in those circumstances the court

could nevertheless decide that the prosecution should continue.

It would also contravene the separation of powers doctrine.

14
In the HKSAR matter, the grounds put forward for a stay were (a) that the
"prosecution" had manipulated and misused the process of the court so as to
deprive the respondent of a protection provided by the common law duty of
disclosure and/or (b) that although a fair trial was still possible, as a matter of
judicial discretion, it would be contrary to the public interest and the integrity of
the criminal justice system for the trial to take place (see judgment on appeal,
para 47). Latifs case was concerned with the importation of 20 kgs of heroin into
England from the USA. The basis of the abuse of process argument was that the
defendant had been incited by an informer and customs officer, by subterfuge, to
commit the offence and had been lured into the jurisdiction of the English courts.
30. Moreover, where the prosecutorial authority believes that the

prosecution should be discontinued, it would be acting in bad faith

to nevertheless continue to prepare on the merits of the case and

not to inform the accused of the abuse which it believes justifies

the termination of the proceedings. It would be unsound and

improper to put the accused to the expense of preparing for a trial,

particularly an accused who may be inhibited by financial means.

It would also· entail an unwarranted use of the resources by the

NPA.

31. It could hardly be expected of the NPA to apply to court once the

abuse becomes apparent and ask the court for a declaration or an

order that the prosecution should not continue. 15 To do so would

be an abdication of prosecutorial authority in favour of the courts,

a boundary which should not be crossed. The court would also not

be able to order the prosecution to continue. It is a different

matter if a third party, (say the complainant or an interested party

like the Democratic Alliance in casu), were to challenge the

prosecutor's decision to discontinue the prosecution. That would

be a review based on irrationality. Only then might a court

intervene to decide whether it is irrational.

15
Such an application would in effect be an unopposed motion matter. A further
absurdity would be that the prosecutor would have to place the merits before the
Court; the accused too would have to go on oath before his trial begins.
32. In argument in the main application before the Court a quo,

reference was made to the English decision in Regina (Corner

House Research) & another v Director of the Serious Fraud

Office. 16 The following extracts from the Corner House case are

apposite and pertinent to the present matter:

"30. It is accepted that the decisions of the Director are not


immune from review by the courts; but authority makes ·
plain that only in highly exceptional cases will the court
disturb the decisions of an independent prosecutor and
investigator. "17

"38. The objection to the principle formulated by the Divisional


court is that it detracts attention from what, applying well-
settled principles of public law, was the right question:
whether, in deciding that the public interest in pursuing an
important investigation into alleged bribery was
outweighed by the public interest in protecting the lives of
British citizens, the Director made a decision outside the
lawful bounds of the discretion entrusted to him by
18
Parliament. "

"41. The Director was confronted by an obviously


unwelcome threat. He had to decide what, if anything,
he should do ... The issue in these proceedings is
not whether his decision was right or wrong, nor
whether the Divisional court or the House agrees with
it, but whether it was a decision which the Director
was lawfu/ly entitled to make. Such an approach
involves no affront to the rule of Jaw, to which the
principles of judicial review give effect: ... " 19

16
[2008] 3 WLR 538
17
p 580 B-C
18
p 583 B-C
19
p 584 C-D
"42. In the opinion of the House the Director's decision was
120
one he was lawfully entitled to make .. .'

33. Plainly, it was not within the contemplation of the House of Lords

that the Director was not obliged to first apply to court to

discontinue the prosecution.

34. The finding of the Court a quo in paragraph 71 of the Judgment

has far-reaching implications and has a serious impact upon the

powers and functions of the NDPP and the NPA. It is submitted

that the Court a quo erred in this regard.

35. In the Judgment refusing leave to appeal, the Court a quo

"clarified" the position. 21

36. It is submitted on behalf of the Applicant that section 179(5)(d)

vests the discretion to withdraw a prosecution in the hands of the

NDPP. There are no circumstances in which the NDPP would first

have to approach the Court where there has been an abuse of

process and obtain the Court's imprimatur before withdrawing a

prosecution. This would amount to a serious breach of the

20
p 584 D-E (In South Africa, the NPA is expressly vested with this power in the
Constitution and the NPA Act).
21
Annexure "B": Judgment refusing leave to appeal, p 5, para 8. The Court a quo
stated that the Democratic Alliance did not seek an order that the determination
of the principle of abuse of process was an exercise for a court of law and not that
of the NPA. The Court a quo continued, stating that it "did not make such a
finding or such an order that in all instances, the determination of the principle of
abuse of process should be determined by a Court of law." (my underlining).
16

separation of powers. The Judgment in effect prohibits the NDPP

from exercising statutory powers flowing from the Constitution and

legislation where the constitutional validity is not challeng·ed.

37. In the Judgment refusing leave to appeal the Court a quo sought
2
to clarify the position on this subject2 . In paragraph 10, it said that

in the circumstances of this case, the court was the appropriate


23
forum to deal with the abuse of process doctrine. But this is not

consistent with paragraph 68 of the Judgment itself, in which the

following appears in unqualified terms: "(A) Courl of Law is the

appropriate forum to deal with the abuse of process doctrine, not

extra-judicial process". Further, if Adv Mpshe was not entitled to

withdraw the charges himself, then he did indeed act ultra vires his

powers on the basis of the Judgment of the Court a quo.

38. Moreover, the Court a quo did not define how the matter would be

referred to court: rhetorically, would this be done at a trial? Who

would have the onus to prove the abuse? Would the NDPP have

to remain supine? Would the NDPP be precluded from supporting

a contention that there has been an abuse of process? Should

22
Annexure "B": Judgment on leave to appeal, p.5, para 8. The Court a quo stated
that the Democratic Alliance did not seek an order that the determination of the
principle of abuse of process was an exercise for a court of law and not that of the
NPA. The Court a quo continued, stating that it "did not moke such a finding or
such an order that in all instances, the determination of the principle of abuse of
process should be determined by a Court of Jaw." (Emphasis .added).
23
Annexure B: Judgment refusing leave to appeal, p 6, para 10.
the matter be referred by way of application with the NPA and the

accused being required to go on oath in regard to the merits so

that the Court can make a determination as to whether the abuse

has been so egregious that the prosecution should be halted?

39. It is submitted that it is entirely different where it is the accused

who contends that there has been an abuse of process and where
24
there is a denial of this by the prosecution.

Second ground

40. The Court a quo found that the decision of Adv Mpshe to

discontinue the prosecution was irrational. In paragraph 92 of the

Judgment, the Court a quo stated that the envisaged prosecution

against Mr Zuma was not tainted by the allegations against Mr

McCarthy and that "Mr Zuma should face the charges as outlined

in the indictment.

41. It is submitted that the Court a quo erred in this regard. Relying
on National Director of Public Prosecutions and Others v Freedom
25
Under Law, it is submitted that this finding is an inappropriate

24
In paragraph 9 of the Judgment refusing leave to appeal, the Court a quo stated
that the Applicants are notably silent about what the Court said in paragraphs 70
and 71 of the Judgment. However, paragraph 71 of the Judgment was raised and
dealt with in the first ground in the application for leave to appeal as well as in the
Heads of Argument filed in support of the application for leave to appeal before
the Court a quo.
2S
2014 (4) SA 298 (SCA), at para [51].
·1(',
10

transgression of the separation-of-powers. The doctrine precludes

the Courts from impermissibly assuming the functions that fall

within the domain of the Executive. In terms of the Constitution,

the NDPP is the Authority mandated to prosecute crime. A court

can only be allowed to interfere with this constitutional scheme on

rare occasions and for compelling reasons. It is submitted that

none exist in this matter.

42. This issue was dealt with by the Court a quo in the Judgment

26
refusing leave where the Court a quo stated that the withdrawal of

the charges against Mr Zuma was not an acquittal. The Court a quo

continued: "Such _withdrawal does not nullify the decision to

prosecute should Adv Mpshe's decision be set aside. The said

withdrawal cannot be regarded as a factor to stop Mr Zuma to face

the charges. The Court had no obligation to make an order that the

matter should be referred back to the NDPP for reconsideration as

submitted by the Applicants." The Court a quo then referred to


7
NDPP v Freedom under Law (FUL)2 where Brand JA said: " ...

the setting aside of the withdrawal of criminal charges ... has the

effect that the charges and proceedings are automatically

reinstated, and it is for the executive authorities to deal with them.

"

26
Annexure "B": Judgment refusing leave to appeal, p 9, para 17
27
2014 (4) SA 298 (SCA), at p 316 para (51].
18

43. Is it the finding of the Court a quo that the charges against

President Zuma have now been reinstated or must the NDPP now

consider afresh whether or not to prefer charges? In this regard,

the following submissions are made:

43.1. In the FUL Judgment, Brand JA dealt in paragraph [33] 28

with the provisions of s.6 of the Criminal Procedure Act,

No 51 of 1977, which draws the distinction between the

withdrawal of criminal charges, before an accused has

pleaded - in s.6(a) - and the stopping of a prosecution

after the accused person has pleaded, as contemplated in

s6(b). The latter section provides that, where the

prosecution is stopped, the Court is obliged to acquit the

accused person, while a withdrawal in terms of s.6(a) does

not have that consequence. A charge withdrawn under

s.6(a) can therefore be reinstituted at any time. Brand JA

said at para [34]: 29

'j<'.\s I see it, the withdrawal of a charge in terms of


s.6(a) is final. The prosecution can only be
recommenced by a different, original decision to
reinstitute the proceedings. Unless and until it is
revived in this way, the charge remains withdrawn."

28
p 310.
29
p 311.
20

43.2. Tl1is should be seen in contrast to· Brand JA stating in

paragraph [51] that the setting aside of the withdrawal of

the criminal charges has the effect that the proceedings

are automatically reinstated.

43.3. In the present case, Adv Mpshe announced publicly on 6

. April 2009, that the charges against Mr Zuma would be

withdrawn. Two days later, on 8 April 2009, Mr Zuma

appeared in the Durban High Court where the charges

were formally withdrawn.

30
44. In Zuma v National Director of Public Prosecutions, this Court

stated the following:

"[41] ... [o]nce a case is struck from the roll, the case terminates
and is no longer pending. There is no guarantee that the
criminal proceedings will be reinstated. Removal of a
matter from the roll is therefore abortive of the currency of
the trial proceedings. Should the trial ever be re-enrolled,
it would start anew."

[42} As soon as the criminal matter has been struck from the
roll by Msimang J, therefore, that the criminal proceedings
were terminated and the proceedings were no longer
pending. At the time, Mr Zuma had not yet pleaded to the
charge. Even if there might have been an intention on the
part of the NDPP at that stage to reinstitute proceedings,
there was no guarantee that he would actually do so. But

30
2009 (1) SA 141 (CC).
21

it would not matter even if the probabilities were that he


would do so. ,m

45. It accordingly submitted that the Court a quo erred in stating that

Mr Zuma should face the charges as outlined in the indictment.

This is an arguable point of law of public importance in respect of

which leave to appeal should be granted.

46. All of that being said, sight must not be lost of the fact that the

mainstay of the relief sought by the Democratic Alliance was the

setting aside of the decision to discontinue the prosecution of Mr

Zuma, There was simply no need to give direction in regard to the

· further conduct of the matter. In A/butt v Centre for the Study of

Violence and Reconciliatidn, 32 this Court stated:

"Sound judicial policy requires us to decide only that which


is demanded of the facts of the case and is necessary for
its proper disposal." .

Third ground

31
See also National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at
par a[75]
32
2010 (3) SA 293 (CC) at 321, para [82].
')')
,:...,_

47. The Court a quo referred to the balancing exercise which has to

be performed by the NDPP when deciding whether to withdraw a


33
prosecution for abuse of process or whether to continue with it.

48. It is submitted that the Court a quo erred in making a finding that

Adv Mpshe omitted to consider or deal with the second imperative


34
articulated in R v Latif.

49. When announcing that the charges were going to be withdrawn,

Adv Mpshe gave a media statement in which he stated that the

NPA had received representations pertaining to the following

issues:

• the substantive merits;

• the fair trial defences;

• the practical implications and considerations of continued


prosecution;

• the policy aspects militating against prosecution.

Adv Mpshe continued:

"I need to state upfront that we could not find anything with
regard to the first three grounds that militate against a
continuation of the prosecution, and I therefore do not
intend to deal in depth with those three grounds. I will

33
Annexure "A": Judgment, p 31-32, paras 63 and 64; p 45, para 88.
34
1996 (1) WLR 104. See the quotation from R v Latif in annexure A: Judgment p 31,
para 63.
23

focus on the fourth ground which I consider to be the most


pertinent for purposes of my decision .. _"

50. It is therefore clear that Adv Mpshe did indeed consider the merits,

which consideration led him to believe that, but for the abuse of

process, the prosecution should have continued.

51. He determined that the public interest in not perpetuating a

fundamental abuse of process outweighed the reasons for

persisting in the prosecution. Whether a court considers this

decision to have been right.or wrong, it was not irrational.

52. Conduct amounting to an abuse of process is not confined to that

which precludes a fair trial.

53. It is submitted that the kind of abuse that arose in this case is

among the most egregious imaginable. What could be more

institutionally damaging than an attempt - by manipulating the

timing of service of the indictment - to swing an election in favour

of a political aspirant. This seems by far the most momentous form

of prosecutorial abuse.
54. It is submitted that where the court is faced with illegal conduct by

police or prosecutors, so grave as to threaten to undermine the


35
rule of law, the court may regard itself as bound to stop the case.

55. In Mapp v Ohio,36 the court observed:

"There is another consideration -- the imperative of judicial


integrity. The criminal goes free, if he must, but it is the law
that sets him free. Nothing can destroy a government more
quickly than its failure to observe its own laws, or worse,
its disregard of the charter of its own existence".

56. The Court a quo found 37 that once Adv Mpshe had said that the

alleged conduct of Mr McCarthy had not affected the merits of the

charges against Mr Zuma, cadit quaestio. The Court a quo also

found that there was no rational connection between the need to

protect the integrity of the NPA and the decision to discontinue the

prosecution against Mr Zuma. It is submitted that the Court a quo

erred in this regard. It is submitted that where the rule of Jaw is

undermined, as in this case, it was rational to stop the

prosecution.

Fourth ground

35
R v Grant (2005] 2 Cr. App. R. 28.
36
367 U.S. 643
37
Annexure "A": Judgment: p 45, para 88.
57. It is respectfully submitted that the Cou1i a quo erred in 38

"characterising the essence" of the Applicant's argumentthat, having

~. regard to the 'Browse Mole' report criticising Mr McCarthy's conduct .

in leaking information to the media, and the contents of the transcript

of certain telephone conversations, Adv Mpshe was justified in

deciding to discontinue the prosecution of Mr Zuma and that his

decision was rational. In this regard the following submissions are

made.

57.1. It was rather the Applicant's case that, contrary to the NPA's

statutory obligation to make independent prosecutorial

decisions, Mr McCarthy influenced and himself made

decisions related to the timing of the prosecution that were

intended to harm and undermine Mr Zuma's chances of.

successfully challenging then-President Mbeki at the

Polokwane electoral conference for the position of ANC

President, and boosting President Mbeki's prospects of

retaining his tenure as such.

57.2. The NPA process had been abused for political reasons. Mr

McCarthy and Mr Ngcuka manipulated the NPA to assist

President Mbeki in his battle against Mr Zuma. The

impugned decision to discontinue the prosecution was

38
Annexure "A": Judgment: p 24, para SO.
26

intended, inter a!ia, to send a clear message that political

interference in the work of the NPA would not be tolerated.

57.3. In essence, the Applicant's case was that the conduct of Mr

McCarthy, who, qua Director of Special Operations, was in

effect the head of the prosecution authority for purposes of

the case against Mr Zuma, was so egregious, and the

process so tainted, that it was not in the public interest to

pursue the prosecution. Even to the extent that the Court a

quo might have differed as to the particular manner in which

Mr Mphse exercised his discretion, it was not open to

displace his determination, namely, that it was more

important to restore and maintain the integrity and

independence of the prosecution authority than to pursue the

conviction of a single individual, no matter how prominent.

57.4. The main reason for opposing the application (as found by

the Court)39 , was that Mr McCarthy unduly influenced and

interfered with the service of the indictment for political

reasons. This found its way into Adv Mpshe's address to the

media on 6 April, when he referred to Messrs McCarthy and

39
Annexure "A" Judgment p 5, para 7.
27

Ngcuka having manipulated the timing of the envisaged


40
service of the indictment to Mr Zuma for political reasons.

57.5. Far from being, as erroneously found by the Court a quo, to

be the keystone of the case of the Applicant, the Browse

Mole report simply served as evidence to demonstrate that

Mr McCarthy had for some time pursued an unlawful agenda

to besmirch Mr Zuma, with a view to cementing the position

of President Mbeki. It is emphasized that it was Mr McCarthy

who instituted an investigation against Mr Zuma in terms of s.

28(1)(a) of the NPA Act. The Browse Mole report simply

demonstrated the unethical conduct of Mr McCarthy.

58. It is submitted that the Democratic Alliance was bound by the

statement of the deponent to the Applicant's answering affidavit,

Mr Hofmeyr, that Mr McCarthy and Mr Ngcuka had actively

abused the NPA to discredit Mr Zuma and that the motive was

political.

59. It is significant that the Court a quo found that the alleged conduct

of Mr McCarthy, if proven, constitutes a serious breach of the law

and prosecutorial policy. 41

40
Annexure "A" Judgment p 16, para 39.
41
Annexure "A": Judgment p 25, para 52.
28

60. The deponent to the Applicant's answering affidavit, Mr Hofmeyr,

affirmed that Mr McCarthy and Mr Ngcuka had actively abused the

NPA to discredit Mr Zuma, and that their motive was political. Mr

Hofmeyr stated:

- "275. I argued that the prosecution should be discontinued. I had


investigated Zuma's a/legations. In my view, they proved
that McCarthy and Ngcuka had actively abused the NPA to
discredit Zuma. The motive for doing so was political. They
believed that it was acceptable to use the NPA to assist
Mbeki in his factional battle against Zuma. I felt that it was
important to expose what they had done. I felt it was
important for the NPA to send a clear message that
political interference with the work of the NPA would not be
tolerated and would be exposed."

61. It is submitted that the Court a quo erred in discounting this

_evidence as mere "opinion". I submit that the Plascon-Evans rule


42
was of application. The Democratic Alliance proceeded by way

of motion proceedings; there was no onus on the Applicant. Adv

Mpshe formed a view that there had been an abuse of

prosecutorial power. His view was premised upon the contents of

the spy tapes and legitimate inferences drawn therefrom. It was

not required of the Applicant in this case that it had to prove the

premise and intention behind the delay in serving the indictment. If

anything, it was for the Democratic Alliance to prove the contrary.

They did not ask for the matter to be referred to oral evidence.

42
P/ascon-Evans Paints Ltd v Van Riebeeck Paints (Pty} Ltd 1984 (3) SA 623 (A) at
634-635.
28

62. Having accepted the serious breach arising from the conduct of Mr

McCarthy, the Court a quo erred in failing to find that such conduct
was so egregious, and the process so tainted, that it was rational

for Adv Mpshe to determine that it was not in the public interest to

pursue the prosecution.

Fifth ground

63. It is submitted that the Court a quo erred in finding that the form of
censure Adv Mpshe chose - by discontinuing the prosecution - failed

to demonstrate a connection or linkage to the alleged conduct of Mr

McCarthy. 43

64. The Constitutional Court has stated that: "(A) rationality enquiry is

not grounded or based oh the. infringement of fundamental rights

under the Constitution. It is a basic threshold enquiry, roughly to

ensure that the means chosen in legislation are rationally

connected to the ends sought to be achieved."44

65. The principle of legality requires that the exercise of public power

must be rationally related to the purpose for which the power was

given.

43
Annexure "A": Judgment p 26, para 54.
44
Ronald Bobroff and Partners v De la Guerre 2014 (3) SA 135 (CC) at 138 para [7].
See also Democratic Alliance v President of the
Republic of South Africa and Others
2013 (1) SA 248 (cc) para [32].
30

66. It is submitted that Adv Mpshe, as the Acting NDPP, had the power

to discontinue the prosecution; the Court a quo erred in finding that

he did not.

67. His decision was indeed rationally related to the purpose for which

the power was conferred. The purpose of that power in this context

may be to guard against manipulation, and ensure that all persons

who are the subject of a prosecution, are dealt with in a manner

which is fair, and by an independent authority not suborned or

manipulated for political needs; further that the prosecution process

is not in any way manipulated for an extraneous purpose

unconnected to the actual prosecution.

68. It is submitted that this establishes the link required for rationality.

The aforementioned must be seen in the light of the Court a quo's

finding that the alleged conduct of Mr McCarthy as appears from the

transcript of the recorded conversations, if proven, constitutes a

serious breach of the law and prosecutorial policy. 45

69. Mr Mpshe may conceivably have marked his displeasure with the

manipulation uncovered in some other fashion - perhaps by

disciplinary steps against those responsible. That too could have

been a legitimate means of vindicating the integrity of the institution.

But such a step, whatever its merits, would not have been the sole

rational means of achieving the undeniably legitimate ends being

45
Annexure "A": Judgment: p 25, para 52.
pursued. With the greatest respect, it is not for a court to deem the

decision it might consider to be the most reasonable in the

circumstances to be the only rational course. That analysis belongs

to review under PAJA; it is alien to review under the standard of

legality.

Sixth ground

70. It is respectfully submitted that the Court a quo erred in paragraphs

76 to 79 of the Judgment, 46 in which it misunderstood what

underpinned the scheme to delay the service of the indictment. In

this regard: -

70.1. It is common cause that Mr McCarthy and Mr Ngcuka were

bent upon ensuring that the indictment was served after the

Polokwane conference, where President Mbeki and Mr Zuma

would be vying for the Presidency of the ANG.

70.2. Adv Hofmeyr states in his affidavit:

"Before the Polokwane conference, Ngcuka and others


opposed to Zuma, debated amongst themselves whether or
not Mbeki's chances of retaining the ANG Presidency would
be strengthened by delaying the prosecution. Correctly or
incorrectly, they believed that Mbeki's chances of defeating
Zuma would be strengthened if the prosecution were to be
delayed. McCarthy did as he was asked to do although it was
clear that at times, he did not agree with Ngcuka's
instructions. Ultimately, McCarthy ensured that the

46
Annexure "A": Judgment p 40-41.
prosecution was delayed. He did so for one reason only, to
bolster Mbeki's chances of successfully defeating Zuma".

71. It is clear that Mr McCarthy and Mr Ngcuka believed that the service

of the indictment shortly before the Polokwane conference would

provoke a backlash from who would consider part of a plot to

besmirch Mr Zuma. That would, so they believed, move delegates to

rally around Mr Zuma. That they may have miscalculated does not

detract from the fact that Mr McCarthy persuaded Adv Mpshe to

delay the service of the indictment which he believed would

disadvantage President Mbeki if the NPA did not hold back.

72. It was against this background that Adv Mpshe decided that Mr

Zuma's continued prosecution would be untenable.

73. Once the facts of the manipulation by Mr McCarthy and Mr

Ngcuka are accepted, the Court a quo should have found that the ·

decision was rational.

CONCLUSION

74. In DA v President of the Republic of South Africa, 47 the

Constitutional Court, in dealing with challenges on the grounds of

rationality, referred to the fact that rationality review is really

concerned with the evaluation of a relationship between means

47
supra para 32
and ends. It is submitted that this in turn means that a court

considering a review based on rationality, will exercise a discretion

in balancing (in a matter of this nature) the two imperatives

referred to in Latif. Ultimately, the court exercises a value

Judgment. In doing so, the court has to exercise its discretion

based on standards and form a perception as to whether the

ma/practice by a law enforcement agency outweighs the need,

based on the particular facts, to protect the public from crime.

75. This is a case which impinges upon vital constitutional questions

of peculiar public interest.

76. Moreover, the issues in this Application for Leave to Appeal are of

great constitutional import and concern the powers of the NDPP

and the NPA.

77. The Applicant accordingly seeks leave to appeal directly to the

Constitutional Court.

DEPONENT
I hereby certify that the deponent declares that the deponent knows and
understands the contents of this affidavit and that it is to the best of the deponent's
knowledge both true and correct. This affidavit was signed and sworn to before me
at S1~"'-'D,;, \\e on this _J_hj:__ day of JULY 2016, the Regulations contained in
Government Notice R1258 of 21 July 1972, as amended, having been complied
with.

SOUTH AFRICANPOLicE SERVICE


VISPOL
SINOWLLE
c=-, ,
~ ,', ""-'':')UN,
2016 -07· l 'i OF OATHS
P.o. aox wi:m
SiNOVILlg.
SOUTH AFRICAN POL1'iie SijR.\1101.i
······---·---
IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

DELETE WHICHEVER IS NOT APPLICABLE


(1),REPORTABLE: YES/ t111Ji
. (2) OF INTEREST TO OTHER JUDGES:
.lib:
(3l REVISED. Ye.s
DATE J,</ /Jprf/ .20/b
CASE NO: 19577/2009

In the matter between:

DEMOCRATIC ALLIANCE Applicant

and

ACTING NATIONAL DIRECTOR OF PUBLIC First Respondent .


PROSECUTIONS ·

THE HEAD OF THE DIRECTORATE OF Second Respondent


SPECIAL OPERATIONS

JACOB .GEDLEYIHLEKISA ZUMA Third Respondent ·

THE SOCIETY FOR THE PROTECTION OF OUR


CONSTITUTION Amicus Curiae
QUORUM: LEDWABA DJP; PRETORIUS J and MOTHLE J

DATE OF HEARING: 1 TO 3 MARCH 2016

DATE OF JUDGMENT:

JUDGMENT

THE COURT:

INTRODUCTION:.

1. This is a review application launched on 7 April 2004 by the Democratic

Alliance ("DA''), the official political opposition party in the Republic of

South Africa. The DA asks this Court to grant the foltowing relief:

- ''2. Reviewing, correcting and setting aside the decision of the

Rrst Respondent, taken on or about 6 April 2009, to

discontinue the criminal prosecution of [Mr} Zuma, in

accordance with charges contained in an Indictment of 27

December 2007;

3. Declaring that the decision of the Rrst Respondent referred to

in paragraph 2 above to be inconsistent with the Constitution


-3-

of the Republic ofSouth Africa, 1996, and invalid;"

and appropriate cost orders.

2. The respondents opposing this application are as follows:

2.1 The first respondent is the Acting National Director of Public

Prosecutions ("ANDPP"), who was at that time Adv. Mokotedi

Mpshe SC("Mr Mpshe'');

2.2 The second respondent is the head of the Directorate of Special


·-
Operations ("DSO''), namely Adv Leonard McCarthy ("Mr

McCarthy"). At the time when this application was launched,

the DSO was still operational. It has since been disbanded;

2.3 The third respondent is Mr Jacob Gedleyihlekisa Zuma, ("Mr

Zuma"), the current President of the Republic of South Africa.

At the time this application was instituted, Mr Zuma was not yet

the President of the Republic of South Africa.

3. In addition to the respondents, an entity known as "The Society for the

Protection of our Constitution" was admitted to the proceedings, as

amicus curiae by authority of the court order dated 18 September 2015.


-4-

4. On or about 28 November 2007 a corporate decision to prosecute Mr

Zuma afresh was made by Mr Mpshe, Mr McCarthy and the prosecution

team. Previously charges preferred by the then National Director of Public

Prosecution, Adv Plkoli, were struck from the roll by the Kwa Zulu Natal

Division of the High Court during September 2007;

5. The decision to charge Mr Zuma in November 2007 was coincidentally

taken at a period when the African National Congress (ANC) was about to

hold its National Electoral Conference scheduled for 16 to 20 December

2007 at Polokwane. A president of the ANC was to be elected at the said

conference. The main contestants for the presidency were Mr Zuma and

the former President Mbeki.

6. The timing of the service of the indictment on Mr Zuma became an issue.

The prosecution team, in particular, Mr Downer, wanted same to be

served immediately, regardless of the pending ANC conference. The view

of Mr Mpshe was that service should be affected in early 2008 after the

Polokwane conference was held, so as not to present an appearance of

political interference by the NPA, in influencing the outcome of the


-5-

leadership contest. Mr McCarthy's view changed and he wanted seivice to

be delayed until after the conference.

.7. The respondents' main reason for opposing this application is that Mr

McCarthy unduly influenced and interfered with the service of the

indictment for political reasons.

8. On 1 April 2009 Mr Mpshe took a decision to discontinue the prosecution

against Mr Zuma and announced it publicly on 6 April 2009. The said

decision to discontinue the prosecution triggered this application.

9. It took almost seven (7) years since this review application was

launched, for it to be heard by this Court. The reason for the delay Is,

amongst others, that there were two main Interlocutory applications which

emanated from this review application, following each other, we briefly

refer to the said applications:

9.1 The first interlocutory application concerned a challenge that was

raised by the ANDPP and Mr Zuma in the.Gauteng High Court

Division, Pretoria before Ranched J. The ANDPP and Mr Zuma

contended that the DA did not have locus standito bring this
-6-

review application; raised the reviewability of the decision of Mr

Mpshe and the question whether the ANDPP was compelled to

furnish the record of his decision to the DA. The decision of Ranched

J granting the orders in favour of the ANDPP an.d Mr Zuma, was

reversed on appeal by the Supreme Court of Appeal ("SCA") in the

matter of DA and Others v Acting National Director of Public

Prosecution and Others1;

9.2 In the matter of Democratic Alliance v Acting National

Director of Public Prosecutions and Others which came

before Mathopo J In the Gauteng Division, Pretoria, the Court had

to determine whether the transcript of the conversations as

recorded in the tapes should be disclosed In terms of Rule 53 of

the Rules of The High Court The SCA upheld the judgment of

Mathopo J that the transcript of.the recordings should be disclosed

and further ordered that the transcript of the recordings be

redacted in order to protect the confidentiality concerning the

' 2012 (3) SA 486 SCA


-7-

representations made by Mr Zuma to the ANDPP.

BACKGROUND

10. The decision to charge and· prosecute Mr Zuma was preceded by a

protracted investigation that started in 2001.

11. Mr Mpshe was appointed as the ANDPP on 29 September 2007 after Mr

Pikoli had been suspended, The prosecution team investigating the case
of Mr Zuma consisted of Adv. Downer SC (Mr Downer), Adv A Steynberg

(Mr Steynberg}, Adv George Baloyi (Mr Baloyi) and Adv Du Plooy {Mr Du

Pfooy). The team and Mr McCarthy were also advised by two private

senior counsel, namely Adv Wim Trengrove SC and Adv Breytenbach SC.

12. From November 2007, Mr McCarthy kept Mr Mpshe and his deputies in

the NPA updated about the investigation of the matter of Mr Zuma. In

preparation to finalise the charges, the appllcation for centralization of

charges in terms of section 111 of the Criminal Procedure Act 51 of 1977,

was submitted to Mr Mpshe on 20 November 2007. The prosecuting team


- B-

briefed Mr Mpshe and his deputies on 29 November 2007 and the decision

to prosecute was finatly approved. It is common cause that the decision

to prosecute Mr Zuma afresh was a corporate decision at the time.

13. In the beginning of December 2007 a report in terms of section 33 of the

National Prosecuting Authority Act, 32 of 1998 ("the NPA Act") was

submitted to Minister B. Mabandla ("the Minister'') the then Minister of

Justice and Constitutional Development. Mr Mpshe and the Minister had a

conversation on 4 December 2007, where it is stated that the Minister

raised concern regarding the safety and stability of the country, should the

Indictment be served before the Polokwane conference.

14. On 5 December 2007, the day after the meeting with the Minister, Mr

Mpshe informed Mr Downer that the service of the indictment would be

delayed until January 2008.

15. The indictment was served on 28 December 2007 on Mr Zuma.

16. In June 2008 Mr Zuma launched an application in tenns of section 179 of

the Constitution of the Republic of South Africa, 1996, f'the


-9-

Constitution") in the Kwa-Zulu Natal Provincial Division of the High Court

for a review of the decision taken to prosecute him. On 12 September

2008, Nicholson J ruled in favour of Mr Zuma. The ANDPP challenged

Nicholson J's judgment on appeal in the SCA. On 12 January 2009 the

SCA overturned Nicholson J's judgment

17. On 10 February 2009 the NPA received written representations from the

legal representatives of Mr Zuma. These representations were made on

behalf of Mr Zuma, but Mr Zuma did not confirm the representations

under oath. We pause to mention that the national and provincial

elections were scheduled to take place on 22 March 2009 and the

inauguration of the President of the Republic of South Afiica would take

place on 9 May 2009.

18. On 20 February 2009 Mr Zuma's legal representatives made further oral

representations to Mr Mpshe and his deputies, as weH as Mr


Mngwengwe, According to Mr Mzlnyathl's notes forming part of the

record of proceedings, the Browse Mole matter was discussed at this

meeting. Toe Browse Mole Report was released in November 2007 by

the Joint Standing Committee. Toe report revealed an unofficial attempt

to besmirch the person and integrity of Mr Zuma. Mr McCarthy was

implicated in the compiling of the report and was


- 10 -

openly criticised by the Committee, which recommended that action be

taken against him. No action was taken against McCarthy.

19. On 3 March 2009 the prosecution team considered the representations

made by Mr Zuma's legal representatives on 3 March 2009 and

submitted a memorandum to Mr Mpshe dealing with both the written

and oral representations, giving detailed reasons for the rejection of

these representations. A material suggestion at the time was that the

oral representations should be reduced to writing in an affidavit. This

never took place.

20. During 6 to 16 March 2009 Mr Zuma's legal representatives aHowed Mr

Mzinyathi and Mr Hofmeyr to listen to the tapes of the Intercepted

telephone and SMS conversations between Mr McCarthy and Mr Ngcuka,

as wen as between Mr McCarthy and Minister Mabandla, and between Mr

McCarthy and various other parties.

21. In the meeting, held on 18 March 2009 where Mr Mphse was also

present, the NPA management informed the prosecuting team of the

contents of the oral representations by Mr Zuma's legal representatives

and came to the conclusion that they had a good case to be pursued

against Mr Zuma,
- 11 -

· 22. There are two letters prepared in March 2009 in consideration of the

representations and in which a. response is prepared to Mr Zuma's

attorneys by the prosecuting team and Mr Mpshe. These letters form

part of the record of proceedings. Annexure "D18" is the draft that was

sent to Adv Trengove SC to settle and annexure "D7"_ is the letter settled

that was to be sent to Mr Hulley in response to the written and oral

representations. It is not clear if the response was delivered to Mr

Hulley.

23. The DA became aware that the legal representatives of Mr Zuma had

made representations to the NPA concerning the pending prosecution.

They also requested to make representations. On 20 March 2009 Mr

Mpshe informed the DA as follows:

"You are most welcome to make written representations to me, I

must however request that it reaches me on or before 27 March

· 2009 as this is the date I have set for myself to apply my mind to

all the information supplied and still to be supplied. You will

appreciate that due to the wide publicity in the matter it is in the

interest of all concerned that I consider the representations as

speedily as possible. 11
-12 -

24 .. On the same date, and after the prosecution team had received Adv

Trengove SC's opinion and/or advice, they Informed Mr Mpshe of the

essence of it. The gist of the information submitted to Mr Mpshe is

recorded as follows:

''He advisee/ against accec/ing to the representations. Tne proper

forum for evaluating the a/legations and their relevance to fair

trial was the court, as envisagec/ in the permanent stay

arrangements that we had already sett/eel with the defence and

the Judge-President'~
·-
25. On 23 March 2009 .Mr Mpshe informed the DA that he was not at liberty

to adhere to their request to have insight Into Mr Zuma's representations

·- as the representations had been made confidentially and without

prejudice.

26. On 30 March 2009 a meeting took place between Mr Mpshe, his deputies,

Mr Mgwengwe and the prosecuting team. According to Mr Mzlnyathi's

notes, which were recorded at the meeting, Mr Mpshe Indicated that on 1

April 2009 he would make his decision. Mr Mpshe did not Indicate as to

the reason for making the decision on 1 April 2009.

27. Mr Mpshe said he was satisfied that they had a strong case on the merits

of the case. Mr Mpshe, his deputies and the prosecution team had no
- 13 -

doubt that the prosecution would proceed. Importantly at that stage Mr

Mpshe had been informed of the contents of the intercepted messages

between Mr Ngcuka and Mr McCarthy.

28. On 30 March 2009 Mr Mpshe addressed a letter to Mr McCarthy

informing him about the audio recordings regarding the contents of the

tapes. Mr McCarthy replied on 31 March 2009 requesting more

information regarding the intercepted ccmmunications, so that he could

deal with the allegations against him.

29. At the time Mr Mpshe had indicated to the deputies that he wanted Mr

McCarthy and Mr Ngcuka's responses to the tapes before making a

decision.

30. Prior to 31 March 2009; Mr Mpshe had been reluctant to listen to the

tapes. This is stated in the ANDPP's answering affidavit deposed to by Mr

Hofmeyr, and confirmed by Mr Mpshe.

31. On 31 March 2009 the deputies and Mr Mpshe personally listened to the

tapes In the evening. This after Messrs Hofmeyr and Mzinyathi had

previously reported to Mr Mpshe and informed him and his deputies as to

the contents of the tapes.


• 14 •

32. On 1 April 2009, the following day, Mr Mpshe met with his deputies and

informed them that he had been disturbed at what he had heard on the

tapes. He had decided to discontinue the prosecution.

33. The record of the proceedings reflects that Mr Downer recorded on 2

April 2009 that Mr Hofmeyr was of the view that the prosecution should

be stopped, but both the prosecution team and the other deputies were

of the view that the prosecution should continue. It is clear from the

memorandum that on 2 April 2009 the prosecution team had not been

informed of the decision already taken to discontinue the prosecution.

34. On 3 April 2009 Mr Downer was still of the same opinion, but unaware of

the decision already made by Mr Mpshe on 1 April. He opined as follows:

"The recommendations should be declinecla/ong the lines of our draft

fetter to Mr Hu/fey which has now been considered".

35. Mr Downer, furthermore set out the two questions as advised oy


Trengove SC, legal adviser to the prosecution team. These are:

Ya) can I say that my decision to prosecute was not improperly

inffuenced my (sic) Adv McCarthy's Improper motives? [A

simple sine qua non test can be applied here]; and If not

(b) Am I now st/II satisfied, with ex post facto knowledge of Adv

McCarthy's shenanigans, that the decision was on the merits


- 15 -

the correct one?"

36. On 6 April 2009 Mr Mpshe met with the prosecution team led by Mr

Downer to inform them of the decision he had made to discontinue the

prosecution. He later publicly announced the decision, taken on 1 April

2009, to discontinue the criminal prosecution, stating.his reasons in the

press release.

37. Mr Downer, the leader of the prosecution team, records later in the

memorandum dated 9 April 2009 as follows: .

"The legal aspects of the motivation were not given to us for

comment beforehand In the tew minutes_ before the press

conference it was impossible to digest and comment on the

· legalJustification given for the decision. Nor was there the

opportunity utilised to run this reasoning past two counsel

who were available and eminently qualified to advice on these

issues."

38. On 7 April 2009 the DA launched the present application. On 8 April

2009 the charges against Mr Zuma and Thint were formally withdrawn

by the Kwa Zulu Nata! Division of the High Court.


- 16 -

THE REASONS FOR MR MPSHE'S DECISION OF 1 APRIL 2009

39. The reasons to discontinue the prosecution against Mr Zuma were stated

by Mr Mpshe in an address to the media on 6 April 2009. In essence,

Messrs McCarthy, Nqcuka and others, are alleged to have manipulated

the timing of the envisaged service of the Indictment to Mr Zuma,

against the latter for political reasons. The service of the indictment was

supposed to be used to disadvantage .Mr Zuma in his contest against Mr

Mbekl, for the presidency of the ANC.

40. In announcing his decision to discontinue the prosecution, Mr Mpshe

stated thus:

".......All members of the senior management and the prosecuting

team partidpated In this discussion, and ultimately I take full

responsibility for the decision I make... ';

He further stated that:

''. .... The representations submitted by the legal representatives

pertained to the following issues:


- 17 •

• The substantive merits

• The fair trial defences

• The practical implications and considerations of continued

prosecution

• The policy aspects militating against prosecution

I need to state upfront that we could not find anything with regard

to the first three grounds that militate against a continuation of the

prosecution....... "

And then that:

"... .In the present matter, the conduct consists of the timing of the

charging of the accused. ..•

Even If the prosecution Itselfas conducted by the prosecution team

is not tainted,. the fact that Mr McCarthy, who was head of the

DSO, and was In charge of the matter at all times and managed it

almost on a dally basis, manipulated the legal process for purposes

outside and extraneous to the prosecution itself. It is not so much

the prosecution itself that is tainted, but the legal process Itself.

McCarthy used the legal process for a purpose other than that

which the process was designed to serve, i.e. for collateral and

Illicit purposes. It does not matter that the team acted properly,
- 18 -

honest!Y, fairly and justly throughout. Mr McCarthy's conduct

amounts to a serious abuse ofprocess and offends ·one's sense of

justice..... "

· And he condudes as follows:

.., "In the light of the above, I have come to the difficult conclusion
that it is neither possible nor desirable for the NPA to continue with

the prosecution ofMr Zuma..... H

Of Importance he also stated that:

''let me also state for the record that the prosecution team Itself

had recommended that the prosecution should continue even if the

allegations are true, and that it should be left to a court of


law IP dee/de whefher to stop the orqsecution. 0
(Court's

emphasis)

41. There are thus three important decisions at the centre of this review,

namely:

41.1 The first decision was that of the NPA and DSO to prosecute Mr

Zuma. This decision was taken on or about 28 November 2007;

41.2 The second decision, of 6 December 2007, concerns the timing of

the service of the Indictment on Mr Zuma. This is the decision


- 19 -

which concerned the alleged misconduct by Mr McCarthy. The

questions raised herein are who took the decision, when and why?;

and

41.3 The third decision of 1 April 2009 is the one made by Mr Mpshe to

discontinue the prosecution of Mr Zuma. According to Mr Mpshe,

the reason for this decision emanate from the alleged misconduct

of Mr McCarthy as stated above. It is this decision that is the

subject of this review.

42. The main reason for the 1 April 2009 decision to discontinue the

prosecution is captured succinctly on the bottom of page 4 and the top of

page 5 of Mr Mpshe's statement, where he opines as follows about how

an abuse of process may occur on Its own:

' . .....a) It will not be possible to give the accused a fair trial; or

b) It will offend one's sense ofjustice, integrity and propriety to

continue with the trial of the accused in the particular case.

Discontinuation is not a disciplinary process undertaken in order to

express one's disapproval of abuse of process; It is an expression

of one's sense ofjustice and propriety. (See Connelly v DPP 1964


- 20 -

AC 1254)"

43. It is against this background that the Court now turns to deaf with the

grounds of review of Mr Mpshe's decision to discontinue the prosecution

of Mr Zuma.

THE DA'S GROUNDS OF REVIEW

44. When this review application was launched on 7 April 2009, the

grounds of review supporting the relief sought were initially based on

the provisions of s 6 of the Promotion of Administrative Justice Act

(PAJA), 2 in line with the decision in Sato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs and Tourism and Others3 •

45. The reviewability of a decision to discontinue a prosecution was

considered and dealt With by Navsa JA, in the matter of DA v Acting

NDPP and Anothel. After considering the question, the SCA

concluded that a review of a decision to discontinue prosecution can

2
Act 3 of 2000.
3
2004 (4) 490 (CC) at par;;i 25, where O'Regan J held that the grounds of review are now
based on PAJA as codified in s6 thereof, and no longer under common law.
'2012 (3) SA 486 (SCA) at P494 from para 23.
-21 -

be reviewable on the grounds of legality and irrationality. 5 This view

was further endorsed in the matter of The NDPP v Freedom under

Lavi where the Court stated in paragraph 29 as follows:

'[29] As demonstrated by the numerous cases since decided on

the basis of the legality principle, the principle acts as a safety

net to give the Court some degree of control over action that

does not qua/if'/ as administrative under PAJA, but nonetheless

involves the exercise of public power. Currently it provides a

more limited basis of review than PAJA. Why I say 'currently" is

because it is accepted that 'legality is an evolving concept in our

jurisprudence, whose full creative potential will be developed in

the context-driven and incremental manner.' ... But for the

present purposes it can be accepted with confidence that it

includes review on grounds of imitionality and on the basis that

the decision-maker did not act in accordance with the

empowering statute (see: Democratic Alliance and Other v

Acting National Director of Public Prosecutions and Others 2012

(3) SA 486 (SCA para's 28 to 30)."

RATIONALITY AS A GROUND OF REVIEW

5
The SCA dealt will) !he.history of the review ;is deyeloped in Pharmar:eutfca/
Manufacturers A:ssocfatlon of South Africa and Another In Re: Ex Parte the Pree/dent
of the Republic of South Africa and Others 2000 (2) SA 674 (CC) and Affordable
Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC).
6
2014 (4) SA 298 {SCA).
-22-

46. In paragraph 32 of its judgment, the Constitutional Court in A/butt v

Centre for the Study of Violence and Reconciliation and Others/

explains rationality review as being really concerned with the

evaluation of a relationship between means and ends - the

relationship, connection or link between the means employed to

achieve a particular purpose on the one hand and the purpose or end

· itself. In paragraph 51, the Constitutional Court held thus:

• ... But, where the decision is challenged on the grounds of

rationality, Courts are obliged to examine the means selected to

determine whether they are rationally related to the objective

sought to be achieved. What must be stressed. is that the

purpose of the enquiry is to determine not whether there are

other means that could have been used, but whether the means

selected are rationally related to the objective sought to be

achieved. And if, objectively speaking, they are not, they fall

short of the standard demanded by the Constitution.•

47. Rationality involves substantive and procedural issues. 8 It follows

therefore that both the process by which the decision is made (the

means) and the decision itself must be rationally related. This

7
2010 (3) SA 293 (CC).
• Albutt supra at
- 23 •

principle was confirmed by the Constitutional Court in DA v President

of the Republic of South Africa8•

48. In the matter of Freedom Under Law v National Director of Public

Prosecutions and Others 10, Murphy J dealt with the question of the

review grounds under PAJA, of a decision to prosecute. This matter

went on appeal to the SCA11, where the Court held that the decision to

discontinue a prosecution or not to prosecute can be revfewable not

under PAJA but on the basis of the principle of legality and irrationality.

Importantly, further that in deference to the doctrine In separation of

powers, it is not appropriate for a court seized with a review application,

and upon setting aside the decision, to step into the shoes ·of the

prosecution and grant orders and directives as to how the prosecution

should be carried out from that point onwards.

49. The DA subsequently amended its grounds of review based on PAJA

and narrowed them to the grounds of irrationality and legality, in line

with the authorities cited above. The applicant and respondents'

counsel, by agreement, mainly based their arguments on the ground

of irrationality. The parties did not present arguments relating to the

8
2013 (1) SA248 (CC)
10
2014 (1) SA254 (GNP)
11
2014(4) SA 298 (SCA)
. 24 •

declaratory relief sought by the applicant that the decision of Mr

Mpshe was unconstitutional.

THE REPONOENTS' CONTENTIONS

50. It was argued on behalf of the 1st and 2nd respondent, the ANDPP and

the DSO, in essence, that having regard to the Browse Mole report

criticising Mr McCarthy's conduct of leaking information to the media

and the contents of the transcript, Mr Mpshe was justified in deciding

to discontinue the prosecution of Mr Zuma and that his decision was

rational.

51. Mr Zuma's counsel argued that even if the merits of the state's case

were strong, ttie decision to discontinue was rational and justified

because according to the contents of the recorded conversations the

NPA's independence would be affected and it would be seen to be

meddling with political decisions. Counsel further submitted that the

fact that the plan of Mr McCarthy to negativefy influence the electicm

of Mr Zuma as President of the ANC was unsuccessful, was

immaterial. The abuse by Mr McCarthy was of such a serious nature

that the decision not to prosecute was rational.


- 25 -

52. In our view, the alleged conduct of Mr McCarthy as appears from the

transcript of the recorded conversations. if proven, constitutes a

serious breach of the law and prosecutorial policy. It is not even

necessary to refer to his role in the Browse Mole reporffor which It

seems he was not admonished. His conduct as aHeged in the

transcript, again if proven, certainly calls for intervention. This will

involve an enquiry into the allegations, and if need be, also censure

by a court of law.

53. On being informed by Mr Hofmeyr and Mr Mzinyathi about the content

of the recordings, Mr Mpshe surprisingly did not immediately confront

Mr McCarthy and his predecessor Mr Ngcuka about the allegations.

He only did that on 30 March 2009 two days before he took the

decision to discontinue the prosecution. Both officials, who were no

longer in the employ of the prosecution authority, requested access to

.the content of the tape recordings before they could comment. This

was a reasonable request. Mr Mpshe however felt it unnecessary to

wait for their response and proceeded to make the decision on 1 April

2009. He thus made a half-hearted attempt at investigating and

verifying the allegations before he took the decision. He had thus

breached a cardinal rule of audi a/teram partem i.e hearing the other

. side before making an intervention.


- 26-

54. Mr Mpshe in his media address concedes that the substantive merits

and the fair trial defences of the prosecution of Mr Zuma were not

tainted by the alleged conduct of Mr McCarthy. However the form of

censure Mr Mpshe chose, by discontinuing the prosecution, failed to

demonstrate a connection or linkage to the alleged conduct of Mr

McCarthy. That is the essence of this review. The submissions of

respondents' counsel have similarly, in our view, not addressed the

question of this required connection or linkage necessary to

determine if the decision meets the test of rationality.

55; The amicus curiae argued that the DA should have brought the review

application in terms of the provisions of PAJA and that bringing the

application in terms of irrationality is unconstitutional. It was further

argued that the decision to prosecute or not to prosecute is by law

taken by the Deputy Director of Public Prosecutions, not the National

Director of Public Prosecutions. Therefore, it is argued, Mr Mpshe

could not have had the authority to take the decision as alleged.

56. The submissions of the amicus curiae are clearly way off the mark and

not supported by any decided cases. Writing for the SCA in the matter

of NDPP v Zuma supra, Harms DP explained the powers of the

NDPP in reviewing a decision to prosecute in paragraphs 70, 71 and

75, thus:
- 27 -

"70. I therefore conclude that s 179(5) (d) does not apply to

reconsideration by the NDPP of his own earlier decisJons

but is limited to a review of a decision made by a OPP or

some other prosecutor for whom a OPP is responsible.


--
71. ... The_ head of the DSO is a post-Constitution creation and

is not a DPP but a deputy NDPP in terms of the NPA Act (s

7(3)). Further. the fact that he joined in the decision-making

does not mean that the decision is no longer that of the

NDPP. If the argument were correct, it would mean that the

Mpshe decision was also not one made by the NDPP and

would fall beyond the provision and destroy the basis of Mr

Kemp's whole argument because it, too, was made jointly

with the head of the oso·


And at paragraph 75:

"75. In addition, as held by the constitutional Goutt, as soon as

the matter had been struck from the roll by Msimang J, the

criminal proceedings were terminated and the proceedings

were no longer pending. Removal of a matter from the roll

aborts the trial proceedings. The effect of this is that what

werit before the Mpshe decision was spent and a new

decision to prosecute was required. The Mpshe decision


- 28 -

was not simply a review of the Ngcuka decision, which was

no longer extant. On these facts, s 179(5) (d) had,

irrespective of whichever interpretation is correct, no

application, and Mr Zuma's reliance on it was misplaced."

57. In regard to the submission that the DA should have brought the

application for review in terms of PAJA, as submitted by Mr Omar, we

refer to the decisions of DA v Acting NDPP supra and The NDPP v

Freedom Under Law supra, where the two judgments deal extensively

with the ground of review of a prosecution under PAJA and in terms

of the principle of constitutional legality.

58. It needs to be mentioned that the amicus curiae has disappointingly

failed to add any value to these proceedings.

RATIONALITY OF THE DECISION ANO ABUSE OF PROCESS

DOCTRINE

59. The NDPP derives his/her authority from s179 of the Constitution of

The Republic of South Africa; Act 1996, 12 ("the Constitution''),

read with the National Legislation enacted in terms of Section 179(7),

12
Act 108 of 1996.
- 29-

being the NPA Act 13• More specifically, s22 thereof which deals with

the powers of the National Director, as well as the Regulations

dealing with Prosecutorial Policy. The prohibited conduct of NPA

officials, including offences and penalties are dealt with under s41.

The National Director of Public Prosecutions .is also empowered to

issue Policy Directives which serve as a guide to prosecution. Part 2

of the Prosecution Policy Directives dated 1st June 2014 deals with

. the prosecution authority, while Part 5 thereof, deals with withdrawal

of cases and stopping of prosecutions. The NDPP and all officials of

the prosecution are required to act within the confines of these legal

instruments.

60. One of the objectives of the legal framework is to protect and

preserve the integrity of the prosecution authority and its processes.

The objective sought to be achieved through the decision to

discontinue the prosecution of Mr Zuma, was, in Mr Mpshe's view, to

protect the integrity of the NPA and its processes.

61. Thus the decision to discontinue the prosecution was, according to Mr

Mpshe, a response to the alleged abuse of power by Mr McCarthy,

when the latter allegedly manipulated the timing of the service of the

indictment on Mr Zuma, as a tool to achieve a political advantage for

13
Act 32 of 1998, which has since then been amended.
- 30 -

President Mbeki, prior to the election of the leadership of the ANC at

the Polokwane Conference.

62. In the 12-page media address announcing his decision to discontinue

the prosecution of Mr Zuma, Mr Mpshe relies on the·abuse of process

doctrine. The DA submits that the words used by Mr Mpshei in his

statement have a striking resemblance to those adopted by Seagroatt

J of the High Court of Hong Kong in the matter of HKSAR v Lee Ming

Tee 14. This decision was however overturned on appeal 15 where the

Appeal Court stated as follows:

• 184. Although the question is debatable, the better view is

that an abuse of process does not exist independently


of, and antecedently to, the exercise of . judicial

discretion. The judicial decision that there is an abuse

of process which requires the grant of a stay is itself

the result of the exercise of a judicial discretion. It is for

the Judge to weight countervailing considerations of

policy and justice and than, in the exercise of the


discretion, decide whether there is an abuse of process
which requires a stay.•

14
Case number. HCCC 191/1999 ( Unreported judgment of the Hong Kong High Court,
15
HKSAR and lee Ming Tee and The Securities and Futures Commission, Case number
FACC No 1 of 2003.
- 3i -

63. In the same media address, Mr Mpshe also referred to the British

case of R v Latir1 6 , as authority for the application of the abuse of

process doctrine. The Court on page 360 H - J and 361 D - E states

thus:

"If the Court always refuses to stay such proceedings, the

perception will be that the Court condones criminal conduct and

malpractice by law enforcement agencies. That would

undermine public confidence in the criminal justice system and

bring it into disrepute. On the other hand, if the Court wera

always ta stay proceedings in such cases, it would incur the

reproach that it is failing to protect the public from serious crime.

The witnesses of both extreme positions leaves only one

principle solution. The Court has a discretion; it has to perform a


balancing exercise.•

On page 361 b - Ethe court ~id:


"General guidance as to how the discretion should be exercised

in patiicu/ar circumstances will not be useful. But it is possible to

say that in a case such as the present the Judge must weigh- in
the balance between the public interest in ensuring that those

that are charged with grave crimes should be tried and the

competing public interest in not conveying the impression that

18
1996 (1) WLR 104
- 32 -

the Courts will adopt the approach that the end justifies any

means."

64. In making reference to this case, Mr Mpshe surprisingly omitted to

mention that the Courts in both the HKSAR appeal and the_ Latif

matters17 were of the view that the determination of the principles of

abuse of process was an exercise for a Court of law and not an extra-

judicial pronouncement.

65. Mr Mphse disregarded, without given reasons, the recommendation


..
of the prosecution team that, even if the allegations regarding Mr

McCarthy are true, the decision to stop the prosecution was to be

made by a court of law.

66. The Court in the Latif matter also held that the application of the

abuse of process involved a balancing of two imperatives. The. one

imperative is where the Court does not act on misconduct and

malpractice by law enforcement agencies. A failure to do so will raise

the ire of the public. The second imperative is the instance where the

trial is discontinued, such as in this case. In such an event the

criminal justice system as a whole, and not only the NPA, will incur

the reproach that it is failing to protect the public from serious crime.

17
Supra
- 33 -

Mr Mpshe disingenuously omitted to consider or deal with this second

imperative in his media address.

67. The manner in which the prosecuting authority must approach an

allegation of abuse of process doctrine was also dealt with by the

SCA in the NDPP v Zuma 18 where the Court held thus:

"[37] A prosecution is not wrongful merely because it is

brought for an improper purpose. _It will only be wrongful if, in

addition, reasonable and probable grounds for prosecuting are

absent, something not alleged by Mr Zuma and which in any

event can only be determined once criminal proceedings

have been concluded... " (Court emphasis)

68. A court of law is the appropriate forum to deal with the abuse of .

. process doctrinej, not extra- judiclai prbcess: Pnor to 1 April 2009 and
after he was briefed about the contents of the tapes; Mr Mpshe

subscribed to the view advocated by Mr Downer and the prosecution

team, that the allegations raised in the tape and the representation by

Mr Zuma's legal team, must be subjected to judicial process, if

anything, to test the veracity thereof. He concedes in the press

statement that the prosecution team held this view, but on 1 April

2009, he inexplicably and irrationally abandoned this view. In the

18
2009 (2) SA 277 (SCA)
-34-

March 2000 draft letter to Mr Hulley referred to Mr Mpshe and the

NPA officials expressed the view, that the matters raised in the

representations made on behalf of Mr Zuma must be dealt with by a

court of law during the trial.

69. It is interesting that Mr Mpshe decided to discontinue the prosecution

although in March 2009 Mr Mpshe and the prosecution team recorded

the following:

".. ..I do not consider that this matter in itself will prevent your

client from having a fair trial. If your client believes I am wrong in

this assessment, then he will have the opportunity to persuade

the court in his intended permanent stay application or during

the criminal trial itself'.

70. In .February 2009 the Kwa Zulu Natal Division of the High Court

issued an order, by agreement between the parties that Mr Zuma

would file papers for a permanent stay of prosecution on 18 May

2009. This meant that such an application had to be filed in about six

weeks' time. Mr Mpshe does not state why he could not wait for a

further six weeks for the application for a stay of prosecution to be

fifed so that the court could ultimately deal with it. The matter has a

protracted history since 2007 and we do not understand why Mr


- 35 -

Mpshe wanted to finalize the matter within a month after receiving

representations from Mr Zuma's legal representatives.

71. The legal authorities cited above, of which Mr Mpshe should have

been aware 19 or so advised, do not support the decision taken by him

in an instance such as this one under review, where the abuse of

process doctrine is applied in an extra-judicial exercise of public

power, when the prosecution against an accused is discontinued. In

this instance, the basis of the alleged abuse of process rested on

legally untested allegations which were unrelated to the trial process

and the charges. It is thus our view that Mr Mpshe, by not referring

the complaint of abuse of process and the related allegations against

Mr McCarthy to court, rendered his decision irrational.

72. In the answering. affidavit by Mr Hofmeyr, confirmed by Mr Mpshe, it is

stated that when he, Mr Mpshe, admitted to having told Mr Downer

that the decision was his and no one else's, he was deliberately

withholding the version that he had been influenced by Mr McCarthy

to delay the service of the indictment. This particular version was not

disclosed to Mr Downer during the conversation on 5 December

2007. Mr Mpshe, in his Supplementary Affidavit, presented after the

19
The NDPP v Zuma Judgment is dated 12 January 2009, well before the decision on 1 April
2009 and concerned the office occupied by Mr Mpshe as the appellant
- 36-

DA had delivered its Replying Affldavit2° raised a new explanation

when he stated under oath as follows:

"16. McCarthy told me that it would be harmful to the NPA,

particularly the DSO which was under severe attack at the

time, if Zuma was prosecuted before the Po/okwane

conference. He believed that if Zuma were to be charged

before the Polokwane conference, it would destabilise the

DSO, the NPA and the country.'

"24. I met with the Minister during the evening of 5 December

2007. I raised with her the issue that the announcement

would possibly be delayed. It was clear to me that she ·

agreed that the prosecution should be delayed. She was

concerned that the NPA would be perceived as targeting

Zuma ahead of the Polokwane conference.

25. The foitowing day (6 December 2007} I telephoned Downer

to inform him of the decision to delay tne Zuma

prosecution. I told Downer that I had taken the decision to

postpone the prosecution independently. I told him that it

was my decision and my decision alone. I did so because

Downer was aware that I had met the Minister the previous

20
Mr Mpshe deposed to the first confirmatory affidavit dated 30/03/2.015 in support of the
NDPP's answering affidavit of Hofmeyr. He then deposed to the second affidavit stated as
supplementary affidavit and dated 30/06/2015 after the DA's Replying affidavit
. 37 ·

day. I did not want him to think that the Minister had

interfered or that the Minister had unduly influenced me.

26. I did not tell Downer that it was McCarthy who had

persuaded me that it was necessary and that delaying the

prosecution was the better option for the NPA. I knew that

the decision to delay the prosecution was likely to be

unpopular. I knew that Downer would be unhappy with that

decision.

27. As head of the NPA, I felt that I had to support the decision.

McCarthy had already made the decision. I did not want to

blame it on others when I knew it was likely to be

unpopular. As expected, Downer was angry about the

decision to postpone the prosecution.•

73. The paragraphs from Mr Mpshe's supplementary affidavit as quoted

above, read with Hofmeyr's affidavit, as to who took the decision to

delay the service of the indictment and why, presents three

contradictory versions:

73.1 The first version is that he, Mr Mpshe took the decision, which

was his and his alone. The reason being in consideration of the

speech by the then President Mbeki calling for calm ahead of the

ANC elections in Polokwane;


- 38 -

73.2 The second version is that he took the decision after being

influenced by Mr McCarthy. He does not indicate when this

alleged influence occurred and why he allowed himself to be so

influenced whilst knowing of Mr McCarthy's participation in the

Browse Mole matter since November 2007. He further stated in

a draft letter to be sent to Mr Hulley in March 2009 that he was

not influenced by Mr McCarthy. The decision to not withdraw

the charges was set out in this draft as follows:

"After anxious consideration, I have concluded that my

decision to indict your client in 2007 was not influenced,

improperly or otherwise, by Adv McCarthy. This is

notwithstanding the fact that we both agreed on the decision..

Even in the_ event that I am wrong in this conclusion, having

now again reconsidered the decision, even taking into account

your representatidhs; lrema,n convinced thai it was and is the


correct decision." (Court emphasis)

This decision was the decision to prosecute.

73.3 The third version is that it was Mr McCarthy who took the

decision and he Mr Mpshe, felt he had to support it. If this was

indeed so, why did he have a difficulty in disclosing this

unpopular decision that was not his, to Mr Downer, who at that

time was reporting to Mr McCarthy?


- 39-

74. It seems, from the reading of the answering affidavits of Mr Hofmeyr,

.- confirmed by Mr Mpshe (on behalf of the NDPP) and Mr Hulley (on

behalf of Mr Zuma) that an attempt is made to attribute the decision to

postpone the seNice of the indictment, to Mr McCarthy. Mr Mpshe

portrays himself first as a person who was in charge and

independently took the decision; secondly, that he was not persuaded


.-
by the Minister but he was influenced by Mr McCarthy to delay the

prosecution; and thirdly, that he (Mr Mpshe) acted as an official who

was supporting a decision made by Mr McCarthy. It may well be that

there is a plausible explanation for these contradictions. However, the

consequence of failing to refer this matter to court as it was agreed

among the prosecution team, the NPA and after so advised by Mr

Trengove, shows that Mr Mphse's decision is irrational.

75. The DA• sobmits, Within ~ cohteiit ofMr Mpshe 'appearing to disown
the decision to delay the seNice of the indictment, that Mr Mpshe lied

when he failed to disclose the truth to Mr Downer on 5 December

2007. It seems reasonable to infer that Mr Mpshe was also persuaded

by the discussion in th.e· meeting. with the Minister on the evening of 4

December 2007, the day before he telephoned Mr Downer. On his

. own version, he did not want Mr Downer to form an impression that

he was influenced by the Minister, not Mr McCarthy as he now

suggests in his supplementary affidavit. Significantly, he neither


-40 -

mentioned to Mr Downer then that Mr McCarthy had influenced him,

nor that the decision was made by Mr McCarthy. If it was Mr

McCarthy's decision, nothing prevented Mr Mpshe from stating this to

Mr Downer. The latter's anger or disappointment would then have

been directed at Mr McCarthy.

76. Apart from the contradictory versions as to who took the decision to

delay the service of the indictment and for what reason, there has

been no attempt in the papers to explain how Mr McC13rthy's alleged

influence and lobbying to have the service of the indictment delayed,

would have disadvantaged Mr Zuma. It seems to this Court that it

would be tog/cal to assert the view that the service of the indictment

before the Polokwane conference, would have thwarted the ambitions

of Mr Zuma to assume the leadership of the ANG.

77. However, it is not indicated in the papers before us how the service of ·

the indictment after the Pofokwane Conference, as allegedly

advocated by Mr McCarthy, would have been a tool to influence the

outcome of elections which, as logic dictates, would by then have


*'
occurred. Indeed it so happened that the indictment was served on

Mr Zuma after he had been elected President of the ANC.


- 4'i -

78. In an attempt to bolster this obvious irrational explanation, the NPA

and Mr Zuma brought into their answering affidavits, the previous

conduct of McCarthy in regard to his role in the Browse-mole report.

The Browse-mole Report did not relate to the timing of the service of

the indictment, which in this instance is the high water mark of Mr

Mpshe's reason to discontinue the prosecution of Mr Zuma. It only

served to describe the character of Mr McCarthy as an officer who is

inclined to meddle in political affairs, nothing more. It was information

well known to Mr Mpshe even before he heard the tapes of the

recorded conversations. It is irrational to argue that it constitutes the

basis upon which the prosecution was to be discontinued.

79. Thus the information on which Mr Mpshe based his decision to

discontinue the prosecution of Mr Zuma; is inconsistent with, and

does not support the allegation that by seeking to del~y the service of

the indictment, Mr McCarthy sought to influence the outcome of

elections and therefore demonstrated an abuse of process. There is

thus no rational link between the alleged misconduct of Mr McCarthy

and the decision of t April 2009.

80. As alfeady stated, the decision to discontinue the prosecution of Mr

Zuma was takenO. The chronology of events stated earlier in this

judgment, indicate that at all material times and since the 27 of


-42-

judgment, indicate that at all material times and since the 27 of

November 2007, the decision of Mr Mpshe and senior members of

the management team of the NPA had been to continue with the

prosecution. The prosecution team led by Mr Downer also held this

view, even after Mr Mpshe had, unknowingly to the prosecution team,

taken the decision to discontinue the prosecution.

81. Even after the legal representatives of Mr Zuma had made

representations to Mr Mpshe and senior members of the

management of the NPA during February 2009, the view was

consistently held that the prosecution must continue. 21 There is no

record that there was a change of this view, rtght up to the evening of

the 31 March 2009 when Mr Mpshe and other senior members of the

management team listened to the tapes.

82. Mr Hofrneyr records in his affidavit that he and Mr Mzinyathi briefed

Mr Mpshe and other senior members of the NPA, on the content of

the tapes. Therefore, at the time when Mr Mpshe decided to listen to

the tapes on 31 March 2009, he had been briefed about the content

and knew what to expect. However, the following day on the 1 April

2009, Mr Mpshe announced to the NPA Senior Management that

21
This appears from the Answering Affidavit of Mr Hofmeyr as well as the draft memoranda
and letter included in the record as D7 and D8.
-43-

after listening to the tapes, he was angry and felt betrayed and

therefore have decided to discontinue the prosecution.

83. When Mr Mpshe announced his decision on 1 April 2009, no

discussion was held with Senior Members of the NPA to source their

views on this subject. This omission is critical, considering that up to

31 March 2009, they have been collectively discussing and agreed to

continue with the prosecution. They too had been briefed on the

content of the tape and on the evenJng of 31 March 2009, they heard

the tape with Mr Mpshe. It is expected that they individually would

have formed some views on the matter. Failure to source their views
under the circumstance was irrational.

84. Mr Mpshe did not reveal that he had heard new information on the

tape, which was not stated to him pr,611/ously by M~ssrs Hbfineyr and

Mzinyathi during their briefing and which caused him to change his

mind. There is no evidence that after he had listened to the tapes,

there was something specifically that he had heard which was not

brought to his attention during the briefing. The record reflects that he

still held the view that the prosecution must continue, even after he

was briefed on the content of the tapes. His sudden inexplicable

turnaround on this matter is clearly irrational.


-44-

85. Mr Mpshe referred to the pressure exerted on the NPA concerning

the fate of the intended prosecution of Mr Zuma. During argument,

counsel for Mr Zuma stated that his client needed a response from

the NPA as he was due to be sworn in as President of the Republic of

South Africa within a few weeks. 22 Mr Mpshe was subjected to such

pressure that he could not afford the time and space to properly apply

his mind on the implication of what he was about to do. He failed to

exercise and apply the balancing act of the two imperatives

necessary for the consideration of the abuse of process doctrine.

86. Mr Mpshe ensured that the prosecution team and Mr Downer were

not informed of the decision, until 6 April when he was to announce it

to the public. If indeed the decision had been rational and above

board, why the secrecy? Needless to state that Mr Downer, unaware

that the decision had been taken on 1 April 2009, the following day on •
.
2 Aprit 2009 submitted a comprehensive memo, motivating why the

prosecution needed to continue.

87. Mr Mpshe did not allow, or offer an opportunity to Mr Mngwengwe,

the Director of Public Prosecution in Kwa Zulu Natal, who had

authorised the indiclrilent and thus the prosecution, to listen to the

22
In fact. Mr Zuma was swom in as President on 9 May 2009, the month after the decision to
discontinue the charges was taken.
-45 -

tapes and state his views. It was, after all, the indictment he had

signed concerning a case he had authorised prosecution, which was

being discontinued.

88. Mr Mpshe failed to explain how the information he had heard on the

tape could be said to. have affected, compromised or tainted the

envisaged trial process and the merits of the intended prosecution. l n

fact, in his media address, he concedes that the alleged conduct of

Mr McCarthy had not affected the merits of the charges against Mr

Zuma. There was thus no rational connection between the need to

protect the integrity of the NPA and the decision to discontinue the

prosecution against Mr Zuma.

89. He totally ignored .the concerns h.e had p~rsonally raised prior to

making the decision; that the information from the tape and 1he

representation from Mr Zuma's lawyers .had to be investigated,

verified and the tapes authenticated.

90. Mr Mpshe in his own words on 1 April 2009 stated that he felt angry

and betrayed. It is the view of this Court that his feelings of anger and

betrayal caused him to act impulsively and irrationally, considering the

factors as stated in the preceding paragraphs. He did not allow

himself time to consider the question whether the very decision he


· 46-

was about to take, could be regarded by other people facing similar

charges throughout South Africa, as a breach of the principles of

equality before the law or that it would be an abuse of process to

discontinue charges against people of high profile or standing in the

community. 23 The NPA ignored its own view as set out in the draft

letter that was to be sent to Mr Hulley which conveyed:

"The conflict between your client's defence and the prosecution's

evidence can only be determined if all the evidence the

prosecution and your client wish to adduce is presented and

tested in a court of law."

91. For the reasons set out above, this court finds that there are no

substance in the submissions of the respondents and the amicus

curiae.

CONCLUSION ANO FINDING

92. Having regard to the conspectus of ·the evidence before us we find

that Mr Mpshe found himself under pressure and he decided to

discontinue the prosecution of Mr Zuma and consequently made an

irrational decision. Considering the situation in which he found

himself, Mr Mpshe ignored the importance of the oath of office which

23
See the R v Latiff supra.
-47 -

demanded of him to act independently and without fear or favour. 24 It

is thus our view that the envisaged prosecution against Mr Zuma was

not tainted by the allegations against Mr McCarthy. Mr Zuma should

face the charges as outlined in the indictment.

93. The respondents further argued that since the charges against Mr

Zuma were formally withdrawn in court on 8 April 2009 after Mr

Mpshe decided to discontinue the prosecution the order sought in the

notice of motion may be of no consequence. We are constrained to

state that said technical argument was not raised in the papers and it

cannot render the order we are to make herein inept and ineffective.

94. This Court, for the reasons stated above, finds that the decision of 1

April 2009 by Mr Mpshe to discontinue the prosecution of the case

against Mr Zuma is irrational and sliould be r~liiewed and set aside.

· COSTS

95. The costs follow the result and the respondents should bear the costs

of this application, jointly and severally, the one paying the others to

be absolved.

24
See s32 of the NPA Act for the full text of the oath.
-48-

96. Concerning the amicus curiae, in exercising our judicial discretion, we

think it would not be appropriate to make a cost order against it

because it was admitted by the court and the opposition to its


application was withdrawn by the applicant. Furthermore, the

applicant did not persist that a cost order should be made against the

amicus curiae.

97. In the premises it is hereby ordered:

1. The application succeeds.

2. The decision of the first respondent, dated 1 April 2009, to

discontinue the prosecution of the case against the third

respondent in accordance with the indictment served on him on

28 December 2007 is reviewed and set aside; and

3. The first, second and third respondents are ordered, jointly and

severally, to pay the costs of the applicant, including the costs of

three counsel.
4. No cost order against the amicus curiae.

A' LEDWABA
Deputy Judge President ofth~.Hii;it:i Court
Gauteng Division; Pretoria
-49-

CPRETO'RIUS
Judge of the l:flgh Court
Gauteng Division, Pretoria

S PMOTHLE
Judge of the High Court
Gauteng Division, Pretoria

For the Applicant Adv. S Rosenberg SC

Assisted by: Adv. J de Waal

Adv. D Borgstrom

Adv. S V~ele.

Instructed by: Minde Schapiro & Smith Inc.

For the First and Second Respondents: Adv. H Epstein SC


- 50 -

Adv. H Maenetje SC

Assisted by: Adv. A Platt

Instructed by: The State Attorney

For the Third Respondent: Adv. K J Kemp SC

Adv. A Gabriel SC

Assisted by: Adv. H SGani

Adv. T Khuzwayo

Instructed by: Hulley & Associates Inc

Amicus Curiae: · Attorney Zehir Omar


IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case· Number: 19577/09


DELETE WHICHEVER IS NOT APPLICABLE

(1) REPORTABLE, ';g!;/NO.

(2) OF INTEREST TO OTHER JUDGES, 'tll!;/NO.

(3) REVISED. ye.5


/
H
i f1
. ·· . 1r
.~ . ~ I

.%. t,f._ __J tJ.iJ..e.2.o/6.... __ j___ ·-


DATE _ '-..
1~-------. ----------
i1GATUR1: •. ·
"! :.,
;

In the matter between:

THE ACTING NATIONAL DIRECTOR OF'

PUBLIC PROSECUTION 1ST APPLICANT

THE HEAD OF THE DIRECTORATE OF


SPECIAL OPERATIONS 2ND APPLICANT

JACOB GEOLEYIHLEKISA ZUMA 3RD APPLICANT

AND

DEMOCRATIC ALLIANCE RESPONDENT


2

IN RE:

DEMOCRATIC ALLIANCE APPLICANT

AND

THE ACTING NATIONAL DIRECTOR OF


PUBLIC PROSECUTION 1ST RESPONDENT

THE HEAD OF THE DIRECTORATE OF


SPECIAL OPERATIONS 2ND RESPONDENT

JACOB GEDLEYIHLEKISA ZUMA 3RD RESPONDENT

SOCIETY FOR THE PROTECTION OF OUR CONSTITUTION AMICUS CURIAE

JUDGMENT:.
APPLICATION FOR LEAVE TO APPEAL

THE COURT

1.

INTRODUCTION

On 29 April 2016 the Court delivered a judgment in a review application ("the

n:iain judgment") launched by the Democratic Alliance ("the DA"), against the

Acting National Director of Public Prosecutions ("ANDPP"), the Director of

Special Operations ("the DSO") and Mr Jacob Gedleyihlekisa Zuma ("Mr

Zuma"), the current President of the Republic of South Africa.


3

2.

The DA in that application sought to have reviewed and set aside the dec.ision

by Adv Mpshe SC, the then ANDPP, to discontinue the prosecution of the

charges against Mr Zuma. The Court in the main judgment ordered that the

decision of the first respondent dated 1 April 2009 to discontinue the

prosecution of the case against the third respondent, in accordance with the .

indictment served on him on 28 December 2007, is reviewed and set aside.

3.

The ANDPP and the DSO, the first and second applicants on the one side,

and Mr Zuma, the third applicant on the other side, lodged separate

applications for leave to appeal the main judgment. The applicants further

seek leave to appeal against the findings of facts and/or rulings and/or

interpretation of Jaw relating to rationality. The DA, the respondent, is

· opposing both applications for leave to appeal.

4.

The ANDPP and DSO based their applications on six grounds. Some of the

grounds raised in their application and the grounds raised in Mr Zuma's

application overlap. Mr Zuma, in addition, contends that there are "some other

compelling reasons why the appeal should be heard".

5.
THE SUPERIOR COURTS ACT

1. Section 17(1) of the Superior Courts Act 10 of 2013, provides as

follows:

"(1) Leave to appeal may only be given where the judge or judges

concerned are of the opinion that-

(a) (i) the appeal would have a reasonable prospect of

success; or

(ii) there is some other compelling reason why the

appeal should be heard, including conflicting

judgments on the matter under consideration;

(b) "

2. We shall not deal with the grounds of appeal raised by the applicants

ad seriatum and we shall briefly deal with the said grounds as set out

hereunder.

6.

REFERRAL OF THE ABUSE OF PROCESS


5

It was submitted and argued by the applicants' counsel that the Court erred in

- finding that Adv. Mpshe acted irrationally by not referring the complaint or

abuse of process and the related allegations against Mr McCarthy to Court,

thus rendering his decision irrational. The ANDPP and DSO in the application

further stated that the effect of the finding of the Court is that Adv. Mpshe

acted ultra vires his powers.

7.

The ANDPP and DSO submitted that the National Director of Public

Prosection (NDPP) has a duty to protect the institutional integrity of the

institution and it is the NDPP . who is best positioned to weigh the

seriousness of abuse within his own hierarchy.

8.

We record that the background facts in this case are common cause. The

applicants in their applications and during argument did not. challenge the

Court's presentation of the background facts. It is important to clarify that the

respondent (the DA) in the main application, did not seek an order that the

determination of the principle of abuse of process was an exercise for a court

of law and not that of the NPA. Furthermore the court did not make such a

_finding or such an order that in all instances the determination of the principle

of abuse of process should be determined by a Court of law.


6

9.

-
The applicants are notably silent about what the court said in paragraphs 70

and 71 of the main judgment. They were selective as they focused on certain

portions in the judgment thus totally disregarding the essence and the order

thereof.

10.

When the main judgment is read as a whole, it is clear that on the

circumstances and/or facts of this case, the Court is the appropriate forum to

deal with the abuse of process doctrine. It is therefore not correct for the

applicants to select certain portions of the judgment and deduce a wrong

conclusion about the judgment. The Court did not find that Adv. Mpshe acted

ultra vires his powers as· submitted by the applicants.

11.

TAINTING OF THE PROSECUTION

The ANDPP and the DSO submitted in paragraph 2.1 of their heads of

argument that the finding of the Court that the envisaged prosecution was not

tainted is wrong. They further submitted that the Court should have found that

the prosecutorial process was tainted and it was not irrational for Adv. Mpshe

to discontinue the prosecution under the circumstances.


7

12.

It is clear in the main judgment that on the facts of this case, a Court was an

appropriate forum to deal with the issue of whether the prosecution was

tainted or not. It is interesting to note that the applicants impliedly state that it

is the Court that should make such a finding whilst at the same time, they also

argue that it is the NDPP only who can make such a finding.

13.

The main judgment clearly explains why the Court is better placed to deal with

the issue when a proper application is before it and all the interested parties

shall have put forward their versions. It is further explained in the judgment

that Adv. Mpshe irrationally and hastily made a decision not having all the

information before him and not waiting for the requested information.

14.

BALANCING OF TWO IMPERATIVES

14.1 The Court in its judgment under the heading "RATIONAL/TY OF THE

DECISION AND ABUSE OF PROCESS DOCTRINE" clearly dealt with

the issues raised in the third, fourth and fifth grounds in the applicants'

application. It is not necessary to regurgitate what is said in the

judgment it been clear on these aspects.


14.2 It is not correct, as submitted by the ANDPP and the 080 that the

Court in paragraph 88 of the judgment found that once Adv. Mpshe had

said that the alleged conduct of Mr McCarthy had not affected the

merits of the charges against Mr Zuma, cadit quaestio. The Court in

the said paragraph stated that there was no rational connection

between the need to protect the integrity of the NPA and the decision

to discontinue the prosecution against Mr Zuma.

15.

The Court clearly understood the argument of the applicants, the AN OPP and

the DSO, when the main application was heard. In paragraph 52 of the

judgment it is stated that the conduct of Mr McCarthy, if proven, constitutes a

serious breach of the law and prosecutorial policy. Importantly, Adv. Mpshe,

made a decision without- having the version of Mr McCarthy, see paragraphs

53 and 54 of the judgment. The Court further dealt with the contradictions

regarding the timing of the service of the indictment as set out in paragraph 73

of the judgment.

16.

The opinion of Mr Hofmeyer is just that and not a fact as the applicants seek

to elevate it as such. The test mentioned in the Plascon-Evans Paints Ltd v

Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623(A) at 634-635 was properly
9

considered and applied with in the main judgment. Mr Hofmeyer's statement

that Mr McCarthy and Ngcuka had actively abused the NPA to discredit Mr

Zuma and that the motive was political cannot be regarded as a fact and

binding.

17.

OTHER COMPELLING REASONS

The other ground to support the application raised by Mr Zuma is that the

formal withdrawal of the charges on 8 APRIL 2007 before the Kwa-Zulu Natal

High Court was a vital factor and that the Court in its judgment should not

have stated that Mr Zuma. should .face the charges. In our view, the

withdrawal of the charges against Mr Zuma was not an acquittal. Such

withdrawal does not nullify the decision to prosecute should Adv. Mpshe's

decision be set aside. The said withdrawal cannot be regarded as a factor to

stop Mr Zuma to face the charges. The Court had no obligation to make an

order that the matter should be referred back to the NDPP for reconsideration

as submitted by the applicants. In NDPP v Freedom Under Law ("FUL")

2014 (4) SA 298 (SCA), p 316, par [51] Brand, JA said the following:

".... The setting-aside of the withdrawal of criminal charges and the

disciplinary proceedings has the effect that the charges and the

proceedings are automatically reinstated, and it is for the executive

authorities to deal with them ... "


j()

18.

The ground raised by the applicants that the Court has breached the

separation of powers is without merit. The Supreme Court of Appeal (SCA) in ·

the FUL case has clearly and correctly pronounced that Courts should refrain

from handing down orders directing the prosecution as to the execution of

their functions. Such measures would encroach on the terrain of the

executive branch of the State. This Court has cited the SCA's decision in its

main judgment and has throughout been mindful of what has been decided by

the SCA. Mr Zuma's counsel further contends that the Court should have

considered referring the matter back to the prosecution. That would have

resulted in the breach of the separation of powers doctrine. There was thus

no need to make any order regarding what the NDPP should do.

19.

In our view the issues of law concerning the grounds of review and the

separation of powers doctrine have been considered and settled by the SCA

in theirjudgments, which are referred to in the main judgment. There is thus

no legal issue arising out of the main judgment which requires consideration

by the SCA.

20.

The applicants further criticised the main judgment by submitting that the
11

Court did not consider the affidavit of Mr McCarthy to the High Court that the

prosecution process was of the highest integrity whilst he, Mr McCarthy, had ·

been engaged in an illegal investigation in the conduct of Mr Zuma at the

time. The submission disregards the fact that when Adv Mpshe made the

decision to discontinue the prosecution did not mention it. The submission

was made when the main application was argued and we did consider it.

21.

The Court in adjudicating the matter, did take into consideration what the SCA

found in Pharmaceutical Manufacturer Ass of South Africa & Another: In

Re. Ex Parte President of.the Republic of South Africa & Others 2000 (2)

SA 674 (CC) at 709 E - H. The Court clearly stated in the main judgment that

Adv. Mpshe's decision to terminate the process due to the alleged abuse or

manipulation of the prosecution process was irrational.

. 22.

It was submitted on behalf of Mr Zuma in the heads of argument in par 7.5

that the decision to charge Mr Shaik only, should be regarded as irrational.

We fail to understand the relevance of this submission because Mr Shaik's

conviction was confirmed by the highest Court. Furthermore Mr Shaik's issue

was not mentioned by Adv. Mpshe when he took his decision and same
12

cannot therefor be a reason fo1- his decision not to prosecute_ There is no

merit on this ground.

23.

Mr Zuma in par 7.6 of his heads of argument submitted as follows:

"On the evidence, Mr Msphe did not act overcome (sic) emotional nor·

was he pressured."

Crucially the third respondent further alleged that emotional people often take

impeccable decisions. Mr Hofmeyr clearly stated in his affidavit that Adv.

Mpshe was angry at the time when he took the decision to discontinue the

prosecution.

24.

We are of the view that the applicants have also raised irrelevant and non-

meritorious factors to try and support their contention and arguments that

there are other factors that should be considered.

25 .

. CONCLUSION
The Superior Cou1is Act has raised the bar for granting leave to appeal in The

Mont Chevaux Trust (IT2012128) v Tina Goosen & 18 Others, Bertelsmann

J held as follow:

"It is clear that the threshold for granting leave to appeal against a

judgment of a High Court has been raised in the new Act. The former

test whether leave to appeal should be granted was a reasonable

prospect that another court might come to a different conclusion, see

Van Heerden v Cronwright & Others 1985 (2) SA 342 {T) at 343H.

The use of the word "would" in the new statute indicates a measure of

certainty that another court will differ from the court whose judgment is

sought to be appealed against."

26.

The applicants are not challenging the orders granted by the Court but they

extracted and misinterpreted the following under mentioned sentences in the

main judgment to formulate the grounds of appeal.

(i) "the Court of law is the appropriate forum to deal with the abuse of

process doctrine, not extra-judicialprocess" and

(ii) "Mr Zuma should face the charges as outlined in the indictment".
14

27.

In reading the judgment holistically it is clear that the Court never created a

principle that the NDPP has no power to discontinue the prosecution.

Furthermore the court did not interfere with the separation of powers principle

and did not order or direct that the NDPP must continue with the prosecution.

The attack by the applicants based on the above sentences is ill founded.

The said sentences should be read in the context within which they were

made in the judgment and not read in isolation to create a different context:

28.

The authorities relied upon by Adv .. Mpshe do not support an extra judicial

·· termination of the prosecution. Adv. Mpshe relied on English case law and

Hong Kong case law which did not support his decision not to prosecute.

Importantly the said authorities, the circumstances of the case, and the advice·

that the NPA received from their senior counsel supported that the abuse of

process should be dealt with by the Court. Adv. Mpshe's decision was

carefully considered by this Court. The alleged conduct of Mr McCarthy was

not brushed off by the Court hence it is stated in the main judgment that

should the a/legations be proved that the conduct of Mr McCarthy stands to

be censured.
15

'~
29.
I...

When the Court deals with an application for leave to appeal, leave may only

be given if we are of the opinion that the appeal would have reasonable

prospects of success or if there are some other compelling reasons. In our

view there are no novel legal issues raised in the matter. The applicants

invented novel legal grounds by misinterpreting sections of the judgment or

some selective sentences of the judgment. The fact that the public has an

interest in the matter is not a justification to grant leave to appeal. The matter

is of course important for Mr Zuma. However, if the appeal does not have

reasonable prospects of success leave to appeal should not be granted.

30.

There will in most instances, be different interpretations, however, we have

carefully considered the authorities referred to and we are of the view that the

Court interpreted and applied the authorities correctly.

31.

We seriously considered whether the appeal would have reasonable

prospects of success and we came to the conclusion that there are no merits

in the arguments raised by the applicants. We have carefully reconsidered


16

our judgment and conclude that the appeal does not have reasonable

prospects of success.

32.

We therefore make the foHowing order:

32.1 The applications for leave to appeal by the first, second and third

applicants are dismissed.

32.2 The first, second and third applicants are jointly and severally ordered

to pay the costs of the respondent, including costs of two counsel.

(
EAPLEDWABA
DEPUTY JUDGE PRESIDENT OF THE GAUTENG DI ISION OF THE HIGH
COURT, PRETORIA

GE C PRETORIUS
JUDGE OF THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA

JUDGES P MOTHLE
JUDGE OF THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA