Zuma, Jacob, ANC President - SCA Judgement - Bad JuJu

 

Supreme Court of Appeal (JA Harms) – Judgement against ANC President Jacob Zuma

 

 

Selective Justice => discrimination, gross abuses, gross injustices & FRAUD

 

Verkrampt old-order judicial prejudice wallpapering over structural seams of Constitution

In general, Judicial prejudice & abuses have Global context:

 

– Barack Obama will not reform/remake USA until the truth is out (including Twin Towers IMPLOSION)

- Germany taking moral lead from UK’s decline – major moral shift by Germany within 60 years

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APOLOGIES for the length of this paper – BUT, in contrast to the mass of media reports this paper is very short and gives clear insight as to what the Zuma issue is really about & should be about.

Note: nearly three-quarters are taken up by the judgements – so it’s not too long.

 

(UPDATE Oct 2015: - As a consequence of this paper, which pulled apart an appalling SCA Judgement, SA's opposition Democratic Alliance ((Helen Zille) came up with some additional 'evidence' and reported same to the NPA – the writers' letter in response to Zille is appended below.

 

In short the NPA dropped what was clearly a politicised & manipulated accusation against Zuma – that doesn't mean to say that Zuma had not engaged in Arms Deal frauds – just that no concrete evidence was available.

 

Regardless, at the time it was a conscience issue of whether to develop this paper - which ultimately, and very quickly so, led to the prosecution against Zuma being dropped, thus allowing him to stand for election as SA President – or to keep quiet and hope that he was prosecuted on the basis of a fabricated/politicised accusation.

 

It was a case of choosing between the lesser of the evils – to allow Justice manipulation or to uphold Justice and allow (potentially) a criminal to go free.

 

Time has shown that Zuma is a disaster, but is that more so than Mbeki, Manuel & Irwin?

 

Time has also shown that the Constitutional Court & Constitution has been prostituted by the CC Justices, and High Court Justices – see the PERFECT MURDER of Anni Dewani, Barclays Bank fraud raid on ABSA.

 

Note also the Justice Harms, the lead Justice on the SCA Judgement against Zuma is the same Harms leading the cover-up of the Marikana shootings.

 

Which is the lesser evil is a personal view that each person must make for self)

 

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INDEX:

Introduction

- Background to Zuma issue

- Global Context

Legal Process (Criminal Trial) & general Comments

Zuma Judgements:

- HC Natal (J Nicholson)

- SCA Appeal Judgement (JA Harms)

Concluding Comments

Subsequent email to NPA in response to DA Helen Zille media statement

Appendix

- Some examples of Judicial gross abuses.

- Statements concerning Judges – and indicating the kind of internal Judicial warfare:

Judgements (copy & paste)

- HC Natal 8652/08 Zuma vs. NDPP, J Nicholson

- SCA 537/0 NDPP vs. Zuma, JA Harms

 

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INTRODUCTION:

 

The Jurassic Judgement (JuJu for short) handed down by JA Harms (Supreme Court of Appeal) against ANC President Zuma is an indicator of the kinds of judicial abuses throughout the developed World.

 

BUT, the judgement also contains a hidden fraud scam.

 

South Africa’s Constitution was a Contract between the Haves (predominantly Whites) and the Have-Nots (majority Blacks, Coloureds) to move from a Hot-War conflict and embark upon a peaceful reform.

 

BUT, in the 15 years since the Constitutional State the majority are in a far worse position than under Apartheid – largely because of gross injustices & abuses out of the Constitutional Court & Supreme Court of Appeal

 

The Hot-War has shifted to a Cold-War on the economy front, but the playing field is heavily skewed against blacks because the whites have the wealth; and a tiny minority have over 80% of that wealth and use their financial powers to purposefully (abusively) maintain this imbalance. In addition they were/are ably assisted by a heavily biased Apartheid era Judiciary that was, under the Constitution, distorted by a gross disproportionate representation of Jew Justices in the Constitutional Court. These Jew Justices had a hidden agenda, of aiding Jew business people from maintaining what later came to be shown, by the writer, as massive frauds, through organised crime, part of which was & is still used to fund Israel(Virtual & Real States) and their never-ending wars.

 

The Judiciary were in internal conflict that obstructed, as with Zimbabwe, any attempt of meaningful reform. The writer has been harassed on numerous occasions in Johannesburg & Pretoria High Courts and in the Constitutional Court in attempts to get bigoted Judges to allow open access to courts, to open the Intellectual Doors.

 

Others such as Jo Moila, Theresa Scheulaf, Jack Dormehl have received endless abuses likewise. If you want to get a feel for these abuses simply go to a court and raise a valid intervention.

 

In short the Judiciary refuse to engage their Oaths-of-Office, or Chapter 3 (Co-operative Government) or the proper import of Chapter 2 (Bill of Rights).

Judges unlawfully protect highly-wealthy from legitimate prosecutions whilst others are harassed by abusive legal processes & archaic, Jurassic era, judgements that obstruct meaningful reforms.

 

It is very difficult, if not impossible, for lower court judges to bring about meaningful reform, assuming a willingness to do so, whilst the superior courts (Constitutional Court & Supreme Court of Appeal) hand down judgements that are Jurassic in nature and which wallpaper over the various & numerous componental seams until all of the Constitution is blotted out.

 

The Supreme Court of Appeal Judgement against Jacob Zuma is an example of abusive Jurassic era mindset.

 

Regardless of your personal views concerning Jacob Zuma the overriding principles that must be upheld is that of fairness in any Justice Process, as required under the Constitution.

 

The Jacob Zuma corruption allegations & indictments have produced a plethora of media reports & speculations & masses of confusion. It is impossible to determine the truth …… UNTIL one looks carefully at the judgements, which is the purpose of this paper.

 

The ‘keystone-cops’ comedy & shenanigans within SA’s Justice system concerning Zuma has caused much of the confusion & is responsible for much judicial power-abuses.

 

We know from watching ample dramas of TV cops, forensic scientists, prosecutors, that a contaminated crime scene renders evidence worthless.

We saw with OJ Simpson that if the glove does not fit then …….

We now see a US Judge throwing out all charges against a Guantanamo inmate because his treatment fitted the legal definition of torture.

 

Whilst it was very difficult for High Court Judge J Nicholson (whose correct order the SCA overturned) to apply the spirit of the Constitution (because it has been progressively wallpapered over by Jurassic judgements) there is clear evidence that despite numerous errors & omissions that he nevertheless did attempt to apply the spirit & reached the correct conclusion of overturning the NDPP’s Review decision to now prosecute Zuma (i.e. J Nicholson effectively changed it back to not-to-prosecute).

 

On the other hand the Supreme Court of Appeal Judgement by JA Harms fits the Jurassic era in its archaism. Fairness or spirit of the Constitution does not remotely enter his judgement. JA Harms wrongly believes that he can make a Constitution, which by necessity has seams between its various & numerous components, seamless simply by wallpapering archaic, Jurassic, judgements over the seams.

 

JA Harms’s area of competence does not extend to the necessary new thinking that is needed to solve SA’s reform difficulties which are exacerbated by JuJu Judges, and the legacy of hidden agendas from a grossly disproportionate representation of Jew Justices on the Constitutional Court.

 

JA Harms is, as Deputy President of the SCA, the second highest Justice officer in South Africa for non-Constitutional matters – his judgement puts reform possibilities further into the dark, and the possibility of hot armed struggle more likely.

 

BUT, what is far worse is the hidden fraud scam within JA Harms’s SCA judgement

 

There are many concrete examples of SA Judiciary’s gross unfairness & abuses – see Addendum concerning unfair abuses against Eugene Terreblanche, Wouter Basson, Jo Moila, and unlawful protections from legitimate prosecutions for Donald Gordon, Richard Branson, Raymond Ackerman, ex High Court Judge Mervyn King, Old Mutual, Sanlam & other global Financial Services Institutions, and numerous other corrupt High Court Judges.

 

i.e. Selective Justice through judicial protections.

 

The harassment and unfair Administrative & Justice processes are just some of the discriminatory abuses against Zuma – i.e. Selective Justice through judicial abuses

 

REITERATE: Your personal view of Zuma should not in any shape or form alter the firm need for just & fair Administrative processes & Justice processes.

 

IMPORTANT NOTE:

Do not be too surprised if the chant changes from ‘One Boer, one bullet’ to ‘One judge, one bullet’.

The majority of SA are impoverished & enslaved and becoming increasingly angry – manipulations over Zuma could be a spark that reignites another struggle –> to rid the country of a prostituted, now worthless, Constitution.

 

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Background to the Zuma issue:

Jacob Zuma is currently the President of the ANC, was previously Deputy-President of the Republic of South Africa (until dismissed mid-2005 by President Mbeki because of criminal allegations vis: corruption, and later rape. The rape trial resulted in an acquittal but not without castigation against him).

During the Apartheid era Jacob Zuma was incarcerated as a political prisoner on Robben Eiland and later joined the armed struggle against Apartheid. Zuma’s educational opportunities were limited and it is believed he has only a Standard 6 qualification. Regardless, Zuma has immense charisma & is seen by his followers (the majority of oppressed, suppressed, depressed, repressed blacks within SA) to be, hopefully, their saviour.

Zuma’s ascendancy comes primarily as a consequence of:

(1) Nelson Mandela’s failure to bring about meaningful reform, because Mandela chose rather to soak up the limelight of the World’s stage, ably assisted by crooks such as Richard Branson, the Virgin Prostitute;

(2) Mbeki’s failure to bring about constructive reform, but instead to focus on siding with Mugabe’s style of suicidal destructive reform (c.f. suicide bombers).

(3) The failure of ALL political parties to bring about economic reform.

Reform has not come about, disparity gaps have widened, the majority are much worse off than under Apartheid – the majority of blacks are understandably (justifiably) angry => cause of increasing violence & reason for Zuma’s ascendance.

Zuma, as Dep-Pres of SA, was/is alleged to have been involved in an Arms Deal fraud scam initiated by Schabir Shaik.

The National Prosecuting Authority (NPA) authorized the prosecution of Schabir Shaik; which prosecution headed by Advocate Billy Downer SC in 2005 was successful & later upheld in the Supreme Court of Appeal and also the Constitutional Court.

Prior to the Shaik trial the National Director of Public Prosecutions, NDPP, (Bulelani Ncguka) stated that Zuma would not be prosecuted for, effectively, lack of evidence (herein referred to as 1^st Review under S179(5) of Constitution)

(As will be seen later Billy Downer engages in the very kind of fraud scams that he prosecutes Shaik for, and now seeks to prosecute Zuma. Selective-justice from those with the justice-power)

Zuma was implicated within the Schabir Shaik corruption trial and was alleged as being an accomplice to & recipient of corruption & proceeds. The trial judge J Squires stated to effect that a generally corrupt relationship existed between Shaik & Zuma, this statement was made without Zuma being a defendant.

As a consequence of the J Squires judgement Zuma was dismissed as Deputy President by President Mbeki shortly thereafter, around June 2005.

Ncguka resigned (dismissed by President Mbeki???) as NDPP and was replaced by Vusi Pikoli. Pikoli decided in June 2005 to change Ncguka’s not-to-prosecute decision and to prosecute Zuma (2nd Review of decision under S179(5) of the Constitution).

Pikoli did not comply with S179(5)(d), in that he failed to request representations from Zuma prior to his Review decision.

Billy Downer is involved in/heads this prosecution process (and it appears that he was heading this from outset)

The keystone-cops debacle now picks up increasing & real comedy from this point, but has little laughter because of the reality that it stems from real justice abuses, direct & indirect.

Zuma was brought before J Msimang on July 31, 2006 for trial but NPA applied for postponement because the NPA wanted more time to investigate; this was refused. The NPA indicated it could not proceed to trial so Msimang struck the matter from the role. (This is a key gross-abuse issue; prematurely arresting & charging people before the facts are established and before NPA are ready for trial.)

It was during mid 2005 (if recollection serves correctly) that Billy Downer contacted the writer in telecon on his cell/mobile phone. Downer requested that the writer cease sending him communications. The writer pointed out that the intention was to highlight the gross injustices such as that of criminals -> Donald Gordon, Raymond Ackerman, Richard Branson, and their being unlawfully protected from legitimate prosecution whilst small-fry such as Shaik are targeted and others such as Jacob Zuma, Dave King are extensively & abusively harassed by the NDPP/NPA.

Billy Downer was abrupt & aggressive (abusive?) and stated that he was not interested – i.e. a senior Prosecuting Director is not concerned about gross injustices!!!!!!!!!!!!!!!!!!!!!!!

(It should be noted that the National Police Commissioner Jackie Selebi was also implicated in various corruption/criminal issues and was suspended as Police Commissioner in Jan 2008 by President Mbeki, but prior to this NDPP Vusi Pikoli had been suspended by President Mbeki - it is argued by journalists that Mbeki suspended Pikoli so as to protect Selebi).

What is disgraceful about Pikoli’s dismissal is that not ONE judge intervened to uphold the Constitution & its provisions, especially Chapter 3 (Co-operative Government), in establishing the reasons for President Mbeki’s actions in dismissing Pikoli and as to whether it was substantively & procedurally fair and as to whether it was tantamount to interference in the Justice system.

Any & every Judge has a joint and several responsibility to uphold the Constitution – not one fulfilled their responsibilities/duties.

Mokotedi Mpshe was appointed as Acting-NDPP, who, in Dec 2007, decided to prosecute Zuma (3rd Review). Mpshe did not comply with S179(5)(d), in that he failed to request representations from Zuma prior to his Review decision.

Zuma then took a civil action/motion application to have the Pikoli (2nd Review) & Mpshe (3rd Review) decisions set aside. This is the action that resulted in the Natal 8652/08 J Nicholson judgement (effectively a 4th Review), to which the Supreme Court of Appeal, JA Harms, (effectively 5^th Review) handed down judgement (SCA 587/08) overturning/amending J Nicholson’s judgement.

(See appendix for copy & paste copies of these judgements)

Despite numerous errors & omissions the J Nicholson judgement, to a degree, seeks to import the spirit of fairness & justness that the Constitution demands but the SCA judgement by JA Harms contains the gravest & grossest of judicial abuses that seek to override the Constitution & reimpose the archaic abuses of the Apartheid & pre-Apartheid eras.

JA Harms delves deep into judicial history for archaic judgements & reasoning to thwart the Constitution but entirely fails to import the law or the values/spirit of the Constitution.

[High Court Judges, SCA Judges & Constitutional Court Justices still today refuse to clean up SA’s corrupt Justice system, and refuse to call for proper investigation & prosecution of massive organised-crime frauds perpetrated by Donald Gordon, Raymond Ackerman, Richard Branson, Mervyn King, & other major corporate executives.

They all remain unlawfully protected by corrupt Judges whilst others, less wealthy, less educated, continue to be abusively & unfairly harassed.

Not one opposition political party has called for the proper investigation & prosecution of these criminals. Despite concrete proofs being presented to them by the writer, and which proofs are viewable at this website – see Historical Archives on lhs panel]

It is important to differentiate between abuses and errors.

An error is a genuine oversight or mistake, an abuse is a purposeful unjust action or inaction.

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Global Context

The abuses out of the CC & SCA have far-reaching global consequences – the fact that SA has not been able to constructively reform because of these abuses (similar to that in Zimbabwe) means that the world has not learnt how to reform – do not imagine that the USA, UK, Europe have the skills to solve these massive disparity problems, simply look at the mess they have caused with the Global Economy Meltdown - therefore people such as Tony Blair operate in the dark whilst trying to assist other nations to reform.

(It is ironic that Tony Blair performs this function whilst the UK reels from the destructive consequences of his policies – clearly they don’t work, nor is Blair willing to engage in sound pioneered engineering that would bring successful reform models. Prime Minister Brown is simply utilising Blair’s models with a new layer of gloss spray-paint. They will not work because there is no application of sound engineering into the SEBFL environments. PM Brown’s refusal to reform from the destructive economic/business/finance models that caused the Global Economy Meltdown, because UK’s wealth derives directly from these models, has allowed Germany, Chancellor Angela Merckel, to take moral leadership from Britain in calling for moral reform in these areas. This is a vast shift from the holocaust, and in about 60 years)

Also, Judicial abuses are no different in the UK, USA, Europe -> corporate criminals can buy protection whilst others, the majority, cannot. This is evidenced by the fact that the SA & UK Met Police refuse to investigate Gordon, Branson, Varley, Ackerman & others for massive organised crime frauds. And the US refuse to address the truth about Twin Towers implosion.

Barack Obama will not succeed in rebuilding/remaking America unless he addresses the realities of the Twin Towers implosion. Those that were killed, those that were bereaved by those killed, those that were wrongly maligned (Muslims), and the citizens of the world need to know the truth – Barack Obama cannot reform the USA whilst it wallows in a quagmire of lies.

Unlawful Judicial protections permit these frauds & they have global impact - (see A Bunch of Open Letters, especially 3) – the frauds run to multiple Trillions of Euros/Dollars/Sterling collectively. It is Masterminded by minority high-powered Jew business leaders, but include Christian business leaders. Churches also make use of these fraud scams to enhance their wealth. Much of the defrauded monies are used to fund Israel’s never-ending wars. Israel is both a Virtual (diaspora of some 10 million people) & Real (lump of land in Middle East of some 5 million people). Israel (Real) cannot afford to pay for its military hardware & endless-wars and hardware is not given for free by the USA, therefore the money, in huge quantities, comes from somewhere => defrauded pension/investment monies. (see paper UNODC Convention on Drugs & Crime).

The Nobel Prize has been hijacked and Prizes awarded for grossly defective economics models behind which these & numerous other fraudulent scams can be given ‘credibility’. Academic Institutions have become prostituted/bought-off by defrauded monies to the extent that they are encouraged to develop these fraudulent models (see papers Economist’s Inexact Models Exactly Defective)

Western nations have failed to provide solutions for under/un developed nations – in fact the very economic models they use cause these struggling nations to remain enslaved/impoverished.

Most Western Nations are full-signatories to the Rome Statute which is built upon the Universal Declaration of Human Rights. The Preamble recognises the wrongs of thwarting the reasonable aspirations of peoples to the extent that they feel their only recourse is to engage in armed struggle.

But none of these developed nations have engaged with constructive reforms or with pioneered engineering that would enable reforms to come about. They continue with colonial style oppressions. These brought about severe frustrations in Zimbabwe which was, through the ‘peace’ settlement, compelled to continue with the abusive Westminster style justice system; and through which many reform measures were thwarted by ‘justice’ processes initiated by wealthy whites.

Mugabe’s mindset shifted to ‘suicide-bomber’ mindset – he engaged in physical ethnic cleansing (violence) & economic ethnic cleansing (land grab). The same process is unfolding in SA.

South Africa has the most advanced Constitution the world has seen, but it was emasculated by the Constitutional Court Jew Justices – it is EXACTLY why potential reforms are repeatedly squashed in South Africa and prevented from being rolled-out around the world. Chief Justice Chaskalson repeatedly denied the writer the opportunity to make critical presentations in matters before the Constitutional Court.

Consequently the struggling nations are now turning toward Russia (Vlad Putin) and aligning with a militant approach – the likelihood is that wars are going to increase.

The ANC was simply one body of peoples that joined together to fight against Apartheid with much personal cost by many. The result was a settlement in which a Constitution was established that appeared to bring great hope.

Over the decades of the 1940s to 90s the ANC fought its struggle. The ANC then took political power in 2004 but those in Financial Power (predominantly Jews) continued to wage economic warfare which prohibited blacks in SA from developing. Anger increased, and so did crime – also note, the white-collar crime was expanding at a rapid rate over the decades from the 50s, especially with that masterminded by Donald Gordon, emulated by Raymond Ackermann, and later a host of corporates Liberty Life, Sanlam, Old Mutual, etc.

Against all of this Zuma became Deputy President, albeit with a Std 6 education, BECAUSE the majority were being denied rights and were kept oppressed and they needed a leader; and because Mandela had failed & Mbeki was failing, despite their vastly superior qualifications, and because other political leaders supported by the wealthy failed & still fail to bring their supporters into meaningful reforms.

The wealthy of South Africa perceive that Zuma poses a REAL threat to their security.

Clearly then, it can be argued, here was an easy target for some smooth-talking operators to con into a scam (arms deal) – amongst them was Schabir Shaik. In Shaik’s trial Zuma was implicated. Mass media hype effectively twisted this into a guilty verdict. On the back of this the NDPP has vigorously attacked Zuma, but NDPP has also unlawfully protected Gordon, Branson, Ackerman, Varley (Barclays), Booysens (ABSA), King from legitimate prosecution for their massive global frauds.

It is clear the extent to which Mbeki went to discredit & unseat Zuma, as he did to protect Selebi – it raises the question as to whether Shaik was a deep-throat operative appointed by Mbeki to induce/entrap Zuma into his web. Crooks such as Donald Gordon, Richard Branson, Raymond Ackerman, John Varley, Steve Booysens would also have an interest in seeing Zuma discredited.

Note that both Mbeki & Trevor Manuel manipulated to have the fraudulent ABSA/Barclays share deal pushed through, and a corrupt High-Court Judge (Jajbhay) ably assisted.

At what point then does a victim of a con become ensnared as an accomplice – it doesn’t take much to change the perception from victim to accomplice whilst in truth the person is a genuine victim.

The critical point is that Zuma was (relatively) uneducated & inexperienced in the world of high-powered finance & politics – he was a person that could be easily misled.

His boss, President Mbeki, was into all sorts of shenanigans, ably assisted by Finance Minister Trevor Manuel (who was ably assisted by his girlfriend, Maria Ramos, his erstwhile Treasury Director), including visits to Singapore, a notorious Asian Sweat-Shop Broking Joint & Secretive Offshore Tax-Haven.

Corruption abounded under Mbeki & still abounds because Trevor Manuel has retained his FinMin position.

IS ZUMA A VICTIM OR AN ACCOMPLICE??????????????????????

The law must determine this fairly through fair & just processes!

BUT, the law has been unjustly applied in Zuma’s case; AND the law has unlawfully protected Donald Gordon, Richard Branson, Raymond Ackerman, John Varley, Steve Booysens from legitimate investigation & prosecution for far greater organised-crime frauds.

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Legal Process (Criminal Trial) & General Comments.

We need to understand what the SCA (JA Harms) Judgement should have been about.

In brief, if a crime is perpetrated then the procedure is as follows

A complaint is laid by a person at a police station

The police investigate & compile a docket

The Prosecuting Authority reviews the police docket and decide whether a crime has been committed & whether to prosecute, or whether more investigation is required.

The decision to prosecute or not to prosecute, taken by the prosecuting authority, may be reviewed by the NDPP; if reviewed there are specific but simple procedures to be adhered to.

If decision to prosecute then proceed to trial

Trial must be fair & just and in terms of the Constitution which is subject to the UDHR under the Rome Statute.

A trial conviction can be appealed to both or either the Constitutional Court or eventually to the Supreme Court of Appeal

A FATAL ERROR by a person in committing a crime brings that person into a Criminal Justice process.

A FATAL ERROR in the prosecution of the crime brings that case to acquittal, to closure.

Fair is fair!!!!!

And if it is not fair it is likely, on a balance of probabilities, to be grossly unjust. Bad JuJu!

That is it, plain & simple;

The issue of bail when charged is a separate issue – it is common practice that non-violent offences automatically draw bail orders.

BUT the prosecuting authority abuse their powers substantially by initiating prosecutions prematurely for the sole purpose of harassment – there are ample records to show this kind of abuse in SA (& throughout western nations).

It is IMPORTANT to recognise that a police docket can remain open & under investigation indefinitely, the police & prosecuting authority have no restriction, as long as individuals are not endlessly or unduly harassed.

BUT, once a decision to prosecute has been made, or ALTERNATIVELY a decision to REVIEW a previous decision not-to-prosecute, then prejudice to an individual begins and the clock starts ticking in terms of fair & just Administrative process.

The current procedure of prematurely charging a person is a gross Constitutional violation as it places enormous stress on the accused with endless court orders to reappear only to be told the matter has been postponed once again.

In South Africa the Prosecuting Authority have changed from Attorneys General to Directors of Public Prosecutions, with the NDPP (National Director) in overall charge, reporting to the Minister of Justice but free from interference.

The NDPP’s function is an executive one, it is NOT a line function (i.e. the NDPP must not handle prosecutions himself) – and it is a function at National Level. The various DPPs in the various provinces also perform Provincial executive functions not line functions. The fact that S179(5)(d) specifically refers to the NDPP (in terms of review of decisions) does NOT preclude DPPs holding their own reviews, in fact it must be encouraged, as long as double-jeopardy & other rights violations are not incurred. Nor does a DPP review impact upon the Constitutional rights that flow from an NDPP review.

The confusion created within the Zuma issue is because it is now complicated much further by JA Harms’s JuJu judgement that ignores these basic premises, which are fundamental of good governance. JA Harms’s arguments takes the legal processes away from good governance, they highlight JA Harms’s gross lack of competence in thinking in constructive Constitutional terms.

South Africa, the World, needs constructive thinkers who are appropriately qualified and can correctly engineer sound structures & controls to bring about fair & just processes within the intangible SEBFL systems, of which the legal system is a critical component.

(SEBFL = social/economy/business/finance/legal environments)

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Zuma’s real issue is simply that the NDPP did not comply with the Constitutional requirement of S179(5)(d) – that was it, nothing more!

BUT, both J Nicholson & JA Harms get themselves all confused over extraneous issues, and in one of the most appalling of judgements out of an SA court SCA JA Harms displays his dinosaur, Jurassic, mindset, in which he places archaic judgements in front of & in place of Constitutional rights & protections. He wallpapers over Constitutional seams, instead of melding Constitutional seams over the limited usable old-order legal principles & processes that are (still, after 15 years) engaged.

It is important to recognise that there had been three NDPP Reviews of Zuma’s case prior to the civil matter in the Natal High Court, 1^st by Ncguka, 2^nd by Pikoli, 3^rd by Mpshe – none of the 3 Reviews complied with the Constitution S179(5)(d), but the first did not prejudice Zuma, only the 2^nd & 3rd. In effect the negligence/incompetence of the NDPP compelled Zuma to ask the High Court to intervene in a Constitutional violation over the prejudice to him that flowed from the 2^nd & 3^rd Reviews.

In effect, although not argued by Zuma, so it appears, Zuma was asking the Court to take the stead of the NDPP in (effectively) a 4th NDPP Review. Nevertheless the High Court should have recognised the shortcomings and taken the stead of the NDPP and conducted a S179(5)(d) Review – which effectively is what J Nicholson inadvertently did.

In the 1^st, 2^nd & 3^rd Reviews Zuma was not invited to participate hence he did not potentially endanger himself by breaching his right-to-remain-silent, but his Constitutional right was impinged by the negligence of the various NDPPs in not inviting him to submit representations. However in the 4th Review ((High Court, J Nicholson) Zuma was very open, by compelled necessity because of NDPP’s failure to apply Constitutional provisions, & increased his danger of having his statements used against him in a trial, should a prosecution be decided.

The SCA JA Harms appeal was effectively a 5^th Review!!!!!

How many shots does the Justice system require to prosecute a person and still claim fair & just Administrative process?????????????????

It is a GROSS CONSTITUTIONAL VIOLATION that more than ONE SHOT is permitted. (see paper Dr Death, State vs. Basson, concerning Chief Justice Chaskalson’s cowardly revenge attack against Basson CCT 30/03.

IMPORTANT NOTE:

Neither J Nicholson nor JA Harms, nor any of the legal teams, cited the Basson judgement – this clearly indicates the collusive nature of closed-shop legal communities, and the gross injustices within courts that close, bar, bolt, chain & padlock their Intellectual Doors.

JA Harms imported this double-jeopardy abuse against Zuma, clearly & fully & maliciously & cowardly.

(NOTE: the disgraceful, revenge based, double-jeopardy judgement by the Constitutional Court in CCT 30/03 State vs. Basson needs to be challenged in International Courts against its violations of the UDHR & other international laws)

The very purpose of S179(5)(d) (NDPP Review of decision to prosecute or not-to-prosecute) is to avoid unfair prejudices against persons who are wrongly accused, to avoid their being subjected to horrendous, abusive & costly Justice processes. In engaging in an NDDPP Review an accused is compelled to break his right-to-silence and increase his risk that anything he/she may say may be used against him in prosecution, this includes inadvertently tipping-off the NDPP on potential defence strategies & tactics which otherwise might have proven successful in obtaining an acquittal at trial.

By the import of fair & just Administrative Processes, S33, it is clear that S179(5)(d) is a one-shot option for the NDPP.

What the High Court matter should have been about & to all intents & purposes was about – it should have been a ‘Review of decision not-to-prosecute’ with the High Court taking the stead of the NDPP because of the NDPP’s failure to properly engage the Constitutional provisions of S179(5)(d), and coupled with S33 (Just Administrative Action).

S33(3)(a) provides the right for administrative action to be reviewed by a ‘court, or, where appropriate, an independent and impartial tribunal’.

S33(3)(b) imposes a duty on, compels the, state to give effect to this S33.

The fact that National legislation may not have properly provided for this does not negate the right, it simply defers the option for it to be resolved by a tribunal until such time as legislation is enacted. Any High Court is empowered to intervene & protect.

The JA Harms’s SCA JuJu judgement:

- sought unlawfully to give Constitutional rulings & interpretations on these Constitutional issues

- took us much further away from the correct judgement by J Nicholson (even though J Nicholson’s processes were convoluted & messy & incomplete it reached the correct ‘Constitutional, Chapter 2, Rights’ decision).

Extracts from the Constitution – for convenience

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[Constitution of Republic of South Africa: Act 108 of 1996:

S 179 Prosecuting Authority ……

5) The National Director of Public Prosecutions-

(d) may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:

(i) The accused person.

(ii) The complainant.

(iii) Any other person or party whom the National Director considers to be relevant.

33 Just administrative action

(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

(3) National legislation must be enacted to give effect to these rights, and must-

(a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;

(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and

(c) promote an efficient administration.]

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Good Justice-process, alone, would allow a court, any competent court, to order the NDPP to review a decision – simply to avoid choking the courts with unjust matters, howsoever the injustice might have come about – it is more than simply good governance, it is plain sensible.

BUT, the Constitution EXPLICITLY compels a competent court to review any administrative action where alleged abuses have occurred.

But, unfortunately, ‘sense’ (nor ‘Constitutional compliancy’) does not enter the vocabulary of the legal community –> anything & everything to gang-bang society is fair-game in their eyes.

The critical point to recognise is that for the NDPP (and even a Judge) to Review a decision, any decision, ‘good cause’ must be shown.

We now need to look at the Judgements.

___________________

Zuma Judgements:

High Court - Natal 8652/08 Zuma vs. NDPP, J Nicholson Judgement

Supreme Court of Appeal - SCA 537/08 NDPP vs. Zuma, JA Harms Judgement

Natal 8652/08 Zuma vs. NDPP, J Nicholson Judgement:

An amicus curiae application was brought under this application (see paras 20 to 41 of judgement) – this aspect is not considered herein as it has no real relevance & simply creates more confusion.

From pure legal-process perspective, it was clear that judicial intervention was needed to perform the NDPP functions in the stead of the NDPP himself.

Whilst the judgement does not clarify this point it is, to all intents & purposes, an effective NDPP review of a decision to prosecute or not-to-prosecute. The fact that the court process & papers submitted were to a High Court they effectively fulfilled the function of an NDPP Review. Zuma’s prejudice & jeopardy started the moment he raised the application transparently to the High Court, regardless of whether he or the judge understood it to be a Review – his prejudice commenced once he was compelled to break silence, and Zuma was compelled to break silence because the NDPP was abusing his powers.

Had the NDPP been grossly negligent in any procedural aspect then there was/is always recourse to a High Court to review the NDPP’s actions – not to incur a double-jeopardy for an accused or for a person to-be-accused, but to verify whether the NDPP was negligent, or erroneous, and if so why & how, and what measures to rectify to avoid further occurrences.

It is simply that in Zuma’s case a proper NDPP review had not taken place because of a host of negligences, interferences, obstructions.

Therefore, the extent to which J Nicholson went to analyse the matter showed that he was very diligent even if in areas he made errors or omissions. The point is that a Review, with the High Court taking the stead of the NDPP, of the decision to prosecute or not-to-prosecute, was performed – one can argue how well it was done, but nevertheless it was a Review. Whether by the NDPP or a HC judge in the stead of the NDPP, the fact is that J Nicholson performed a more-than-comprehensive review – in contrast the NDPP did none. Zuma was in jeopardy & prejudiced by his submissions to court, the clock had started ticking at that point even if it had not prior.

In short, J Nicholson reaches the correct conclusion (setting aside the reviewed NDPP decision to now prosecute Zuma) despite errors & omissions in his analyses. J Nicholson’s review is open to review by higher authority but only to the extent to determine possible negligence by J Nicholson, not to incur a double-jeopardy for Zuma.

The fact that the NDPP makes FATAL ERRORS means that the matter is closed.

Also note J Nicholson’s serious but non-fatal error at para 246 – he incorrectly states that the Prosecutor may proceed again against Zuma once certain matters (which were objected to by Zuma) are cured by the State. This is a Constitutional matter in its own right and one in which no argument was heard, consequently J Nicholson erred by making this statement. It clearly is a Constitutional matter as to whether the NDPP have endless shots at prosecuting a person – this needs to be challenged and with the disgraceful Constitutional Court ‘revenge judgement’ by Chief Justice Chaskalson against Basson in mind.

Some important observations concerning J Nicholson’s (JN) judgement are:

At Para 47 – JN relies upon an erroneous SCA judgement BoTT vs. Brenco, which error in reliance is replicated in a second citation Radio Pta vs. ICASA, in which the SCA unlawfully determines Constitutional matters concerning the limiting of the right to freedom of information as pertaining to an accused in his impending prosecution decision review.

An accused in entitled to full information.

At para 50 – JN refers to a judgement by J Davis, it appears that this is SA’s TV Judge Denis Davis, a Jewish Judge, that covered up massive pension frauds in a Sanlam matter before him in 2006. J Davis refused the writer permission to intervene & provide critical evidence.

At para 203 & 207 – it is confirmed that Pikoli was suspended by President Mbeki because of a break-down in the working relationship between Pikoli & Justice Minister Mbandla.

As J Nicholson correctly pointed out at 207, ‘there should be no working relationship’.

The Justice Minister’s function is solely to oversee, by observation (which is a non-working function), & ensure correct prosecutorial functioning, not to interfere with it.

What is most damning is that not ONE judge intervened to uphold the Constitution or to import Ch 3 Co-operative government in determining whether President Mbeki had valid reasons for Pikoli’s suspension. Nor has any judge intervened in the failure/refusal of the Police & NPA to properly investigate (& hence affording of unlawful protection from legitimate prosecution of) Gordon, Branson, Ackerman, King, Booysens, Varley –> there is judicial interference in their inactions to uphold the Constitution.

At para 213 to 217 J Nicholson correctly puts responsibility onto the entire Cabinet for President Mbeki’s unconstitutional actions in suspending Pikoli.

Clearly there was political influence in the Zuma matter - it cannot therefore be ruled out that political interference was from outset, and to the extent of setting-up Zuma, a low qualified person but with immense support from even lesser qualified & impoverished people, who would naturally, even as Dep-Pres, seek leadership from the President & support from Ministers.

It is clear that support from Cabinet was not forthcoming, more still that there were long-standing covert hostile activities against Zuma.

Reiterate: Your personal view of Zuma must not interfere with a fair & just process being afforded him.

Hence J Nicholson was correct in his order because:

- the NDPP failed to comply with S179(5)(d)

- the NDPP failed to show good cause for Review of decision not-to-prosecute

- sufficient evidence supported Zuma’s claim of political interference

Further comments regarding Nicholson’s judgement will be dealt within the context of the SCA, JA Harms, JuJu judgement that overturns/criticises J Nicholson’s judgement & order.

___________________

SCA 537/08 NDPP vs. Zuma, JA Harms Judgement

NOTE: The comments herein are far from exhaustive – they deal with just some of the FATAL flaws in JA Harms’s JuJu judgement.

When reading JA Harms’ Jurassic Judgement it is important to bear in mind that SA has a Constitution, albeit emasculated by a grossly disproportionate Jew Justice representation in the earlier Constitutional Court.

As stated earlier JA Harms wallpapers old-order, archaic, principles over the Constitution so as to blot out its very existence.

A criminal investigation/prosecution process is very straight-forward but it has been horrendously complicated with the nett result that people are grossly abused.

It is important to recognise that even though Jacob Zuma has held high office in government (2^nd highest as Dep Pres and as President of the ANC party) he nonetheless has only a Std 6 education. He was represented by legal counsel – but this should not be taken on surface as good justice in practice because legal professionals will NOT venture beyond what the courts impose in terms of rights protections. (Reiterate comments concerning the Basson abuse out of the Constitutional Court).

Before the matter got to the SCA Zuma had already encountered not double-jeopardy on the same facts but quadruple jeopardy on the same facts – he was entitled to the decision not-to-prosecute.

Paras 1 to 7: JA Harms sets out brief background – JA Harms & his fellow JA Justices have no excuse for not recognising the horrendous mess created BECAUSE the NDPP FAILED to fulfil a simple Constitution procedural requirement.

Instead of clarifying these simple procedures that the Constitution calls for, JA Harms & Co. go into some further 25 pages of rubbish, archaic, & abusive argument.

Para 8 – JA Harms acknowledges that the matter has far reaching political implications. This supports Zuma’s contention that the entire Arms Deal fraud claims were politically manipulated, and that consequently the prosecution is politically driven.

Paras 8 to 14 – JA Harms argues that Zuma relied upon certain arguments. It is trite to point out that Zuma was COMPELLED to engage & be limited in his arguments by his legal team BECAUSE the Intellectual Doors to courts are barred, welded, chained & padlocked shut. Zuma’s, everyone’s, Constitutional rights are violated by this closed-shop abuse.

Zuma stated that his claim was regarding the procedural aspects of the NDPP’s actions & decisions in the ‘review of the decision not-to-prosecute’. However Zuma (his legal team) did include arguments concerning the merits of the underlying matter – this does not alter the procedural requirements of the Constitution but does give indication of political interference, which arguments are valid in terms of deciding whether procedural fairness has been purposefully impinged – the very nature of Zuma’s matter confirms that it has been impinged.

Despite these limitations J Nicholson nevertheless, convolutedly & with many omissions & errors, reached the correct decision, vis: to overturn the NDPP’s decision (a change from not-to-prosecute to prosecute) back to not-to-prosecute – BECAUSE of default by virtue of the NDPP’s FATAL ERRORS.

Para 15 – here JA Harms & Bench go into an exposition of the functions of a judicial officer.

His exposition relies on archaic views stemming from Apartheid & pre-Apartheid Jurassic eras – he draws no reference from Constitutional obligations as set out under the ‘Oaths of Office’, or other provisions.

JA Harms is stuck in the Jurassic era.

JA Harms explicitly repeats an old abuse, vis: ‘judges are no respecters of persons’ – this contravenes the very spirit of the Constitution in which people/s are respected and their rights, albeit that they are often in conflict, considered fairly & justly.

Para 16 – concerns the amicus curiae application. The amicus was entitled to apply to court to intervene, as the Constitution provides for it under S179(5)(d) & S33. Whether there was merit is another issue – this is not dealt with herein – had the SCA acted correctly and upheld the J Nicholson judgement then it would have been immaterial, despite erroneous arguments by J Nicholson on this amicus issue.

Para 20 – JA Harms argues, from a context of seeking to diminish Constitutional rights, that J Nicholson introduced ‘a novel approach to motion proceedings which, if left undisturbed, may serve as a dangerous precedent.’

JA Harms fails to recognise that by the very import of engaging constructive Constitutional reforms that it exactly brings about new (novel) aspects of justice.

JA Harms argues from a Jurassic mindset & seeks, throughout his judgement, to retain all archaic practices, regardless of the destruction & damage done to the Constitution – JA Harms, as the 2^nd highest justice officer in the SCA, is a large part of the cause of South Africa failing to constructively reform.

Para 22 – deals with allegations that are considered ‘scandalous, vexatious or irrelevant’, it is an archaic practice to prevent people from stating the truth about a matter, it significantly diminishes defensive arguments that show other issues behind a dispute.

It is a pointless practice (to apply to have certain aspects struck out on these grounds) because the points have already been stated.

Para 23 to 27 – JA Harms argues incorrectly that the political interference allegation by Zuma was immaterial. JA Harms was only concerned:- that Zuma was entitled to engage with the NDPP Review process or, alternatively, he was not entitled to engage the review.

This is incorrect because as required under S33 a court must review an administrative action when an applicant calls for same, and in so doing, and especially in this case of deciding the decision whether to prosecute or not, the issue of political meddling goes to the weighting of determining the prospects of a successful prosecution outcome. This is obvious, because it will form part of the REAL defence issues that the State must deal with in a trial, should it come to trial.

JA Harms was entirely wrong.

At para 26 JA Harms highlights one of the gravest abuses with court proceedings, he states that [motion proceedings] ‘cannot be used to resolve factual issues because they are not designed to determine probabilities’.

The ‘design’ term that JA Harms uses wrongly suggests that care & consideration are contained in court proceedings – nothing can be further from the truth as we can clearly elicit from his reliance upon archaic principles.

Any court proceeding must decide a matter fully, even if it means calling for evidence or witnesses – a court process that allows judgements whilst excluding all facts & allegations is an abusive proceeding.

At para 27 JA Harms is again incorrect. The NDPP had to show good cause as to why it should reverse its previous decision (whether to prosecute or not-to-prosecute) – the NDPP had the onus to prove the ‘negative’ (changing from not-to-prosecute to one of prosecute) - it would be a gross abuse if any justice officer could willy-nilly change a decision on a whim. As a consequence it follows that the NDPP FAILED to accumulate all relevant information upon which to make a just & fair decision, because he failed to call for representations from Zuma.

The NDPP’s failure is tantamount to a court process without the defendant being afforded the opportunity to be present, or to be heard if present.

Paras 28 to 39 – JA Harms goes off-track into giving arguments that violate simple & straightforward Constitutional provisions.

The most glaring flaw in his logic is at para 38.

‘… the absence of evidence [from Zuma, that is] that the prosecution of Mr Zuma was not intended to obtain a conviction ….’

This illogic puts the onus upon Zuma to prove that there was ulterior motive for the change in NDPP decision to prosecute when the NDPP had violated Constitutional provisions in failing to show good cause for the change in decision AND in NDPP failing to adopt a very simple & straightforward Constitution process.

Instead, JA Harms illogically argues that other archaic principles & processes must prevail over the fair & just provisions contained in the Constitution.

Paras 40 to 45 – these deal with Ncguka’s decision (i.e. the 1^st Review decision not-to-prosecute). This decision by Ncguka was taken before the Shaik trial.

At para 41 JA Harms tries to counter part of Zuma’s arguments by stressing that Zuma did not criticise Ncguka’s decision not to prosecute him (Zuma). JA Harms is splitting hairs, and refusing to simply focus on the process abuses brought about successively by the various NDPPs in failing to comply with the simple & straightforward requirements of S179(5)(d).

Regardless of how Ncguka came to his decision it requires that a change to this decision must be for good cause, and to show good cause the NDPP had to engage a simple process (S179(5)(d)) – NDPP failed in this, and hence the probabilities are that the change in decision stemmed from political interference. Regardless, good cause must be shown – neither Pikoli nor Mpshe showed this, nor could Nicholson find good cause – but he did have evidence of political interference. Hence the correct order by J Nicholson due to default by the NDPP.

Paras 45 to 51 & with para 75 – these deal with the Pikoli decision (2^nd Review of decision not-to-prosecute)

The result of this Review decision was that J Msimang struck the case from the roll.

At para 75 – ‘…as held by the Constitutional Court, 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.’

JA Harms then says ‘The effect of this is that what went before the Mpshe decision was spent and a new decision to prosecute was required.’

What gross error JA Harms brings in on this point is that he argues that new criminal proceedings can be brought, but he wrongly implies that it can be short-circuited. JA Harms implies that the NDPP can simply take up from the point where the NDPP had made a prior decision and without the proper processes afforded any accused of being correctly advised of the charges & being afforded an opportunity to put representations to the particular Prosecutor.

Had JA Harms had competence in process structures & controls he would have realised his gross error.

Further still, in initiating a NEW criminal proceedings the NPA had to have good cause OVER & ABOVE those that were present when the previous trial was struck off. This requirement gives the same import as that of the NDPP reviewing a decision to prosecute or not-to-prosecute – i.e. there has to be good cause shown over & above what went before.

Also at para 51 - JA Harms rightly, for once, recognises that just because Shaik was found guilty does not imply Zuma is guilty, hence J Squires comment in the Shaik trial to effect that a ‘generally corrupt relationship existed between Shaik & Zuma’ was entirely inappropriate.

The reality is that the Shaik trial did NOT bring out any new evidence that was not already available to the NPA at the time that Ncguka decided, in the 1^st review, not-to-prosecute Zuma. Consequently the trial statement by J Squires is NOT good cause for a Review change of decision.

It appears that NDPP have no other new evidence - the additional issues of alleged tax evasion are consequential to the alleged Arms Deal frauds and are not evidence of fraud in the Arms Deal itself. The additional alleged crimes should have been separated from the Arms Deal and investigated alone, the NDPP grossly erred by mixing them up & mixing the Constitutional processes together which confusion has caused prejudice to Zuma.

REITERATE: The NDPP & NPA has the simplest of processes to follow – they FAILED.

A FATAL ERROR in prosecution MUST result in an acquittal, with the public being satisfied that at least some measure of crime prevention has occurred, if not full combating. Fair is fair!

Everything about JA Harms’s JuJu judgement is focussed on nailing Zuma – on revenge - one cannot escape the reality that old-order abuses are alive & well, JA Harms’s judgement reeks of warped Jurassic dogma that has no place in the Constitutional structures.

Paras 52 to 54 – deals with the Mpshe decision (3^rd Review)

Another error by JA Harms is contained in para 54 where he states that ‘It is necessary to stress that the NDPP never refused to afford Mr Zuma a hearing.’

Clearly this is wrong, because IF the NDPP wanted to afford Zuma a hearing then they could simply have done that, by means of a formal letter inviting Zuma to submit representations in terms of S179(5)(d)(i). BUT, the NDPP did NOT do this they chose instead to argue in lengthy papers to court & in court & create confusion (which they have amply achieved with the able assistance of JA Harms & Bench) and to mix up a whole bunch of unrelated allegations into one amorphous mess.

JA Harms then falsely states that Zuma ‘… resisted all attempts by the NPA to further their investigation.’

This makes no sense whatsoever, JA Harms is ENTIRELY wrong. An accused has the right to remain silent, this CANNOT be construed as resisting attempts by the NPA to further their investigations – Zuma in no way had any control or ability to hinder them, nor was he obliged to assist them. BUT, the NPA & NDPP had a DUTY to perform their duties correctly - which, to render them fair & just, are set out in simple & plain terms in the Constitution.

The NDPP & NPA FAILED.

Paras 55 to 75 – these are despicable arguments by JA Harms in which he blatantly trashes the Constitution so as to retain/restore old-order abusive legal practices.

One FATAL ERROR, out of many fatal errors, by JA Harms is that he fails to correctly recognise that the Constitution deals with the complex structuring of State & persons & Institutions, etc. and that consequently there will be numerous seams. JA Harms argues that the Constitution must be seamless – he states this not to create a sense of good judicial insight, but to create a false illusion over which archaic precedences can be pasted/wallpapered and through which the necessary seams of the Constitution can be covered and, eventually, the entire Constitution will be eradicated.

A second FATAL ERROR by JA Harms was in failing/refusing to engage Chapter 3 (Cooperative Government) – it is through this Chapter (coupled with Oaths of Office) that Courts/Judges can remove the abusive practices of the past – but Justices, especially those in the Constitutional Court & SCA, have entirely ignored this.

A third & fourth FATAL ERROR by JA Harms is his expediency of splitting hairs over the meaning of ‘review’ & failing to recognise the NDPP’s executive function which Constitutional requirements and good governance practice precludes him from line functions (prosecuting directly himself). The bulk of these 20 paras seeks to remove Constitutional obligations from off of the NDPP – JA Harms as an SCA member is not entitled to rule on, or manipulate, Constitutional matters. He gives a mass of disingenuous arguments to arrive at a conclusion (at para 70) that ‘ … s 179(5)(d) does not apply to a reconsideration by the NDPP of his own earlier decisions but is limited to a review of a decision made by a DPP or some other prosecutor for whom a DPP is responsible.’

JA Harms implies that the NDPP does not have to show good cause, that the NDPP can change at a whim …….. or at the behest of another party – this is a GROSS Constitutional violation, no officer is empowered not to act with good cause or to show good cause.

It is little different to a scenario in which a judge wily-nilly decides to change his judgement, without process or good cause; or the trial judge being on the appeal bench.

These twenty paras give some insights to the gross inadequacies of the legal community in toto & their failures to give real import of the Constitutional provisions. Instead it shows the expediency of the legal profession, of how they can create a false illusion of credible justice process & to what, in short, is a travesty of justice, both substantively & procedurally, enravelled in puerile arguments that brings no Constitutional substance to the processes. And for this travesty they are granted exorbitant, extortionate, costs orders –> and they can get away with it because the Intellectual doors of courts are barred, welded, chained, padlocked shut.

These justice abuses are common throughout western justice systems.

To reiterate, at para 75, the import of the Constitutional Court ruling that a matter being struck from roll means that the entire process must commence from the beginning, and not from some short circuited point as happened with NDPP Mpshe.

Paras 76 to 80 – JA Harms deals with Zuma’s expectations re representations under S179(5)(d).

JA Harms overlooks the fact that Ncguka had already given a Review decision (not-to-prosecute), it was a public statement. It cannot be retracted on a whim, nor can it be changed without good cause, nor without due process if good cause exists (which the NDPP has failed to show, only relying on rehashing old facts, or consequential allegations confused with the original allegations).

Paras 81 to 83 – deals with striking out’ of certain sections of Zuma’s affidavit.

As mentioned earlier this is an archaic practice and diminishes a party’s grievances unduly & unfairly. Also an attempt to strike-out does not alter the fact that the issues have been canvassed.

Paras 84 to 87 deals with Ex-President Mbeki’s & Cabinet’s intervention. This is not dealt with as the bases upon which the SCA, JA Harms, has handled Zuma’s underlying issues as it related to Constitutional rights clearly show that he has handed down a Jurassic Judgement – bad JuJu.

JA Harms states that Zuma’s legal representative K Kemp SC conceded (wrongly, that is) that the court below (J Nicholson) ‘had no grounds for making (most, if not all) the impugned findings’. It was incorrect of Kemp to have done this because he implicitly sided with the closed-shop legal community in refusing to step outside the narrow interests & collusive relationships that exist within this closed-shop. Instead Kemp should have stood Zuma’s ground that he, Zuma, was entitled to fair & just processes, and that the evidence of political interference (even alleged) should have been taken into consideration by the court (J Nicholson), as J Nicholson rightly did.

But delving further we see the collusive nature of the closed-shop legal community and the hidden fraud scams they engaged in …….

…. Para 87 & THE ORDER are where the hidden fraud scams can be identified.

JA Harms awards costs against Zuma of three counsel. The issue of costs abuses is one major issue alone, but it still does not highlight the fraud scam …… UNTIL, one goes to the very end of the judgement and observe who the counsel are.

The Applicant (i.e. the NDPP) is represented firstly by W Trengrove SC, then secondly by W Downer SC …..

YES!!!!!! – Billy Downer is moonlighting whilst being employed by the NDPP.

Downer plays a double-act and acts as, firstly, the NDPP’s head-prosecutor against Zuma in a criminal trial, and, SECONDLY, as a senior counsel for the NDPP in the NDPP’s civil appeal against Zuma, and Downer is now the recipient, courtesy of SCA JA Harms, of a big-fat costs award.

This is fraud - Plain & simple!

ALSO, don’t overlook that Billy Downer scores a double fraud scam because he also moonlighted in the High Court matter (he is cited as second counsel) – so he gets the costs order from that also. That is fat-cat bucks that Downer has defrauded.

What is the difference between:

- Jacob Zuma (Std 6 qualification, limited business experience), as Deputy-President of RSA being deceived by a smooth-talking operator (vis: Shaik, who is probably set up by Cabinet to do so) and receiving a commission from a business entity for the Arms Deal

AND

- Billy Downer (Law degrees galore, Senior Counsel, vast business & legal experience) ‘moonlighting’ as a private senior advocate whilst also a public employee, vis: a Director of Public Prosecutions, and against the same person (Zuma), and receiving a fraudulent payout (immensely fat costs order, courtesy of the Deputy-President of the Supreme Court of Appeal, JA Harms)?

What is the difference?

What is the difference?

The difference is that JA Harms & Billy Downer should have known far better.

Zuma, by virtue of his limited education & experience, has a valid defence, Harms & Downer have none

_____________________________

Concluding comments:

The evidence clearly shows, on a balance of probabilities (i.e. beyond a reasonable doubt), that Zuma’s legal prosecution process has been politically & judicially tampered with. Just as torture post-crime-event diminishes the value of allegations concerning the crime so too does political & judicial interference in a legal process diminish the allegations.

The legal processes for prosecution were not adhered to by the NPA & various NDPPs.

Whilst J Nicholson made numerous errors & omissions he nonetheless reached the correct conclusion – because of NDPP’s defaults, fatal errors.

JA Harms has brought the justice system & himself into total disrepute because he does not have the competency to engage with, or probably even understand, the nature of the Constitution.

BUT MOST IMPORTANTLY – Harms has brought the Justice system & the courts into gross disrepute because of his fraudulent collusion with other legal professionals within the closed-shop legal profession.

There is clear indication that Zuma was set-up as a victim, whether he later became an accomplice is hard to distinguish because the ‘crime scene’ has been contaminated, hence forensic evidence is rendered worthless.

Zuma is entitled to the benefit of the doubt, and hence acquittal.

However, all is not lost – the wrangles have focussed the spot-light and thus makes it more difficult for a recurrence – and that is one principle thrust of policing –> the prevention of crime.

Further, the perpetrator (Shaik) is incarcerated -> that is a second principle of policing -> to combat crime.

What is clear from the Zuma affair is that the Judiciary needs a major clean-up. The legacy of Constitutional Court revenge judgements by Jew Justices is plain to see – we see it in the fact that reform within South Africa is static and with the majority remaining oppressed & impoverished.

Political parties have also equal blame upon them – especially the DA that represents the majority of wealthy in SA – its legacy, from its past leader, Tony Leon, of fronting Jew/Israel(Virtual) crimes is plain to see. Whether the DA’s present leader, Helen Zille, is prepared to lead real & meaningful reform remains to be seen. Comms between the writer & her office are in progress, but to date her staff are blocking the comms from reaching her.

We need to recognise the immense damage done by Mbeki which started from when he, as Deputy President, manipulated & schemed whilst Mandela limelighted the World’s stage.

J Nicholson was correct to reiterate that the entire Cabinet was responsible – but Trevor Manuel clings to his post -> people clinging to their posts are the first indicator that there is much to cover up.

Whether Zuma makes it to the Presidency or not is immaterial, because none of the political contenders have demonstrated an understanding of the need for sound engineered solutions to reform South Africa.

Without willing & meaningful reform of the grossly defective & massively destructive SEBFL environment models that create the huge disparities & polarisation there can be no reform.

Barrack Obama has not yet admitted to the truth re Twin Towers hence reform in the USA will not come about, similarly for UK & Europe. It means that radical measures will be forced upon those impoverished throughout the world and leaders such as Vlad are recruiting these to his fold –> global polarisation increases –> it can only lead to Hot War.

The most positive aspect of JA Harms’s JuJu judgement is that it highlights the gross abuses & frauds out of the supreme court of appeal & constitutional court – it highlights the need for constructive reform -------> before people are compelled to take up arms once more.

Chris Addington Pr. Eng.

www.cdadd.com

(Under enforced exile from South Africa due to ANC government’s oppressive XDR-nazi system and oppressive economic isolation by corporate & academic worlds.

Also under severe economic oppression due to Ireland & UK government dishonesty.

XDR = Extreme Democracy Resistant.)

______________

Subsequent email to NPA in response to DA Helen Zille media statement

To National Prosecuting Authority – National Director Mpshe

CC: Democratic Alliance – Helen Zille

& addressees, &

www.cdadd.com

From: Chris Addington Pr.Eng.

March 24, 2009

Re: Zuma Prosecution/Trial – media reports of objections by DA.

Media reports indicate that the NPA Director Mpshe has granted the Democratic Alliance until March 27, 20009 to submit objections concerning the NPA’s decision whether to prosecute or not-to-prosecute Jacob Zuma for various fraud & other allegations.

Reports also indicate that the DA will be submitting fresh evidence.

On the basis that these reports are correct, I would like to raise awareness concerning the DA’s intentions that indicate duplicity & political & possibly criminal manipulations.

I refer also to my previous correspondences in response to the DA’s call for SAfricans living/working abroad to vote in the forthcoming elections; and the paper at my website concerning an SCA Judgement against Zuma (Zuma, SCA Judgement – bad JuJu).

Media reports indicate that ex-judge Willem Heath, now acting for Zuma, has raised the unconstitutional interpretation of S179 by the HC & SCA courts as a defence for Zuma. It should be noted that Heath is simply plagiarizing my work without reference; this line of defence argument had not been previously raised prior to my submissions in the aforementioned paper at my site – simply view Zuma legal team’s submissions to High Court (J Nicholson). It should be borne in mind that the Constitution was necessary BECAUSE judges under the Apartheid system, including judge Heath REFUSED to apply just minds in determining matters before them. The import of S179 was fully available to Apartheid courts under the then prevailing rules-of-court, judges simply chose to abuse their powers & ignore them.

It also suggests that Heath is simply playing musical-chairs to suit a highly fluid game-plan, of which the DA has long been active.

If reports are true that the DA has fresh evidence, then why has the DA not submitted it direct to the police & at the time it came to their attention? Why should the DA withhold evidence?

I have regularly stressed & proved the corrupt, organized-crime, nature of the corporate world in SA, and throughout the World, and that it is driven by jew-mafia & christian-mafia elements (not to be confused with loving-faith Jews & Christians); and have shown the links to Israel (Real & Virtual) who essentially have key people by the ‘short & curlies’. I have kept the DA informed of criminal activities by Donald Gordon, Richard Branson, Raymond Ackermann, Roy Anderson, Old Mutual, Lib Life, Sanlam, etc. etc. etc. etc. – these are part of the funds sources that have been defrauded from the masses & siphoned off to fund Israel’s never-ending wars.

Trevor Manuel, Bruce Cameron & Rob Rusconi concocted a cover-up of some of these massive frauds. Manuel was instrumental in the Barclays/ABSA bank fraud deal. Manuel is controlled by his ‘short & curlies’, just as many people in the UK, USA, European governments/parliaments.

Ex-High Court judge Mervyn King (Chairman of AASA & Brait) is also engaged in massive frauds including the fraudulent sale of AA Kyalami F1 Racetrack – he was/is especially protected by High Court & Constitutional Court judges. King is also international & secretive tax-haven banker for these white collar criminals via his Brait bank based in Luxembourg.

The media refuse to print the truth because they are controlled by the same corrupt finance powers. Zapiro is also too afraid to cartoon Donald Gordon & co.

The DA is now playing a hidden ‘card’ – fresh evidence against Zuma – that was carefully & cleverly garnered by the finance-powers by criminal inducements many years ago.

All the aforegoing would become abundantly clear if Gordon, Branson, Ackerman, King & others were prosecuted for their massive organized-crime frauds. The evidence is in the home of every pension/investment holder – but your NPA National Director predecessors refused to prosecute these real criminals.

The Democratic Alliance under Tony Leon did not speak out against these crooks – white collar crime was considered fair-play by the DA because these powerful corporates played Leon as their puppet. Unfortunately Helen Zille is playing the same game. Why has she not previously given this evidence (as reported) over to the police? Even if Zille ‘magically’ obtained it only last week why does she feel it necessary to withhold until the 27^th? - clearly, to gain some political ‘time’ & advantage.

South Africa’s woes are manifold – it stems from an ingrained culture of corruption – which grew whilst Mandela limelighted the World-Stage – musical chairs is the name-of-the-game. Unfortunately no one is prepared to stop the music – because if they do then ‘evidence’ will magically appear showing that person’s deep involvement in various frauds.

On a simple scale: Zuma’s alleged frauds are a drop-in-the-ocean compared to tens/hundreds of billions of Donald Gordon’s, Raymond Ackerman’s, Roy Anderson’s, Mervyn King’s, Bobby Godsell’s, Peter Watt’s, and so on , and so on and so on.

And Zuma is likely more the victim of deep-rooted, white-collar, organised-crime than the accomplice.

From a pure legal perspective the NPA has long-blown the Zuma investigation, the S179 violations that I raised (and plagiarised by Willem Heath) show this clearly. And the lead prosecutor, Billy Downer, has implicated himself, and the NPA. But the far, far bigger frauds by Gordon & co. are still to be investigated – and the evidence is crystal clear, one simply falls all over it.

The DA are not sincere in political ambitions, they have displayed no intention to reform the prevailing, grossly unfair & destructive economy models that maintain mass impoverishment – in fact they purposefully avoid these real issues – they, like the ANC, ignore the realities of the R&D at my site that prove the prevailing SEBFL models wrong.

Sincerely

Chris Addington Pr. Eng.

www.cdadd.com

(Under enforced exile from South Africa due to ANC government’s oppressive XDR-nazi system and oppressive economic isolation by corporate & academic worlds.

Also under severe economic oppression due to Ireland & UK government dishonesty.

XDR = Extreme Democracy Resistant.)

Chris Addington wrote:

re: the da's call to voters outside sa (see notice below)

the da under tony leon kept quiet about donald gordon’s masterminding of liberty life so as to defraud your pensions & savings. the da kept quiet about the frauds that demutualisation of om & sanlam brought so that they could emulate liblife's frauds. the da kept quiet about frauds by richard branson & other crooks. nor did the da intervene with the fraudulent pscgg liquidation.

 the truth is that these frauds were all masterminded by corrupt jew & christian financial powers (not to be confused with loving-faith jews & christians) that control sa’s wealth & the media. it was jew judges (high court & constitutional court) that abused their powers to allow these frauds to be ‘legalised’ by covering them up.

i have had many recent communications to the da, under helen zille, to engage in constructive reforms to the grossly ‘unfair rules & practises’ (& frauds) that maintain the wide & increasing disparity gap.

zille, like tony leon, has not responded.

none of her efforts as mayor has even begun to address the macro causal problems – what are the prospects if zille were to gain national power?

the critical danger in sa is whether there will be reform & whether it will bring real & meaningful relief to the millions living in tinshacks & sub-eco developments, both of which are psychologically destructive.

 the da did nothing to solve these problems – in fact the da actively supported the frauds that caused them (& caused your pensions/savings thefts).

nor has the da addressed the disgraceful judgement by supreme court of appeal dep president harms against zuma - a judge fraudulently colluding with his  fellow legal practitioners (see paper at my site www.cdadd.com: zuma judgement - bad juju)

looking at the situation from a purely engineering perspective –> if zuma is obstructed in obtaining power then the likelihood increases that sa will explode.

therefore, it makes sense to face up to the realities & allow someone with a std 6 education to  try & bring reform.

after all, mandela with law degrees lapped up the limelight which allowed mbeki, with a ph.d, to structure his powerbase & destroy sa with the able assistance of trevor manuel and incompetence of alec irwin & others. others such as sexwale, ramaphosa, etc. took advantage of their power positions & screwed their supporters. the ex dep-pres's asgisa is also  a failure (mainly because the underlying ip was stolen from me, and those people assigned had no engineering insights to the ip)

the alternative (to zuma) is that the masses will be increasingly frustrated & angered – which is likely to cause bloody explosions.

however, the real danger within the anc is trevor manuel – he (& his girlfriend maria ramos) refuses to change from crookery – people who cling to their jobs have much to hide.

it is a pure gamble -> the devil (da) that you do know or the devil, if devil he is, that you don't know (zuma).

there is certainty with the da's refusal to constructively engage & refusal to distance from fraudulent finance-powers; there is uncertainty about zuma

- the odds must then be in zuma's favour.

also, you can't hold back the tide or winds of change.

 
 sincerely

Chris Addington Pr.Eng.

www.cdadd.com,

(Under enforced exile from South Africa due to ANC government’s oppressive XDR-nazi system and oppressive economic isolation by corporate & academic world’s.)

XDR = Extreme Democracy Resistant.

___________________

Appendix

Some examples of Judicial gross abuses.

- Eugene Terreblanche’s Urgent Application in the Pretoria High Court some years ago (see paper Eugene’s Terror Blanched).

- Wouter Basson’s Double Jeopardy in the Constitutional Court (see papers Dr Death, State vs. Basson CCT 30/03)

- Jo Moila’s abusive conviction for contempt (see paper ‘Constitutional Court, Boer Commandos & the Cheeky Little Nigger)

- PSCGG liquidation, a Perfect Crime, perfected by corrupt Judges (see paper PSCGG, Tigon Shawcell-Perfect Crimes)

- see paper ‘Fraudulent sale of the AA Kyalami FI Racetrack’ – ex High Court Judge Mervyn King defrauding AA Members with assistance of High Court Judges & Constitutional Court Justices.

- ABSA/Barclays fraudulent share deal

Statements concerning Judges – and indicating the kind of internal Judicial warfare:

ANC accused Judge de Villiers of belonging "to the class of dinosaurs that internalised the workings of white domination"

former ANC youth league president, Fikile Mbalula, referring to Judge Hilary Squires as an "old Rhodesian apartheid judge"

On Hlophe she (Helen Zille, DA Leader) said that he "Judge Hlophe is the epitome of a judge who is ’in consonance’ with the ruling party.

Jacob Zuma’s opinion that a ruling by Judge Combrink was "proof of the resistance to transformation by some of South Africa’s judges"

______________________________________________________

Judgements

(Transcripts taken from www.saflii.org.za & www.supremecourtofappeal.gov.za, both copied c& pasted below)

HC Natal 8652/08 Zuma vs. NDPP, J Nicholson

IN THE HIGH COURT OF SOUTH AFRICA Reportable

NATAL PROVINCIAL DIVISION

Case No : 8652\08

In the matter between:

JACOB GEDLEYIHLEKISA ZUMA APPLICANT

and

NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS RESPONDENT

JUDGMENT

NICHOLSON J

Introduction

1. The applicant is Jacob Gedleyihlekisa Zuma. The applicant sets out in some detail his career including his participation in the liberation struggle for political rights for all in South Africa. He is 66 years of age and served time on Robben Island for a political offence. Thereafter the applicant went into exile to fight for the political rights of the oppressed in this country. Since the advent of democracy he has occupied a number of senior posts in the African National Congress (ANC) and is currently the president.

2. Apart from his party political career the applicant has at all material times to this application held high political office. He was a member of the KwaZulu-Natal legislature and the Member of the Executive Council (MEC) for Economic Affairs and Tourism for that province from April 1994 to June 1999.

3. The applicant became a member of the National Assembly of Parliament in June 1999. He was appointed the Deputy President of the Republic of South Africa on 19 June 1999 and became leader of government business in Parliament. The remainder of his career will appear from the facts enumerated in the judgment hereinafter.

4. The Respondent is the National Director of Public Prosecutions (‘the NDPP’).

5. The Society for the Protection of our Constitution, a voluntary association, applied to join these proceedings as an amicus curiae.

6. The applicant was represented at the hearing by Mr K J Kemp SC, assisted by Mr MDCSmithers and Miss AA Gabriel, the NDPP by Mr W Trengove SC, assisted by Mr W Downer SC, Mr George Baloyi, Mr A Breitenbach, Ms Kameshni Pillay and Mr A Steynberg, while the Society was represented by Mr Z Omar. I am immeasurably grateful to counsel for their efforts which have made my very difficult task a lot easier by their thorough heads of argument and other materials.

Background

7. On 23 August 2003 the then NDPP Mr Bulelani Ngcuka held a press conference at which he announced that his office had decided to prosecute one Mr Schabir Shaik and a number of corporate entities in which he had substantial interests, but not the applicant who at that time was the deputy President of the Republic of South Africa.

8. This prosecution was pursued and Mr Shaik was in due course convicted and sentenced to an effective term of fifteen years imprisonment. The corporate entities were also sentenced appropriately. The Supreme Court of Appeal and Constitutional Court have confirmed the convictions and sentence. It was common cause during that case (‘the Shaik trial’) that between October 1995 and September 2002, Shaik personally, and some of the corporate appellants, made numerous payments totalling a substantial amount of money to or on behalf of the applicant.

9. Discovery of the payments ultimately led to the prosecution of Shaik and the corporate entities. They were charged with three main counts and in each instance with a number of lesser alternate charges. The main charge on count 1 was that of contravening section 1(1)(a)(i) and (ii) of the Corruption Act 94 of 1992 (the CA).

10. The State alleged that during the relevant period Shaik and one or other of the corporate entities made 238 separate payments of money either directly to or for the benefit of the applicant. The State alleged that the object of the payments was to influence the applicant to use his name and political influence for the benefit of Shaik's business enterprises or as an ongoing reward for having done so.

11. The main charge on count 3 was one in terms of s 1(1)(a)(i) of the CA. During September 1999, Ms Patricia de Lille, a member of Parliament, made allegations concerning corrupt practices during what has become known as the arms deal. This related to the purchase of armaments by the Government of the Republic of South Africa from a number of overseas and local contractors. As a result of her complaints a number of State institutions, including the Auditor-General, the National Prosecuting Authority and the Public Protector, became involved.

12. Thomson-CSF (Thomson), a French company with which Shaik had participated as part of a consortium (the German Frigate Consortium), had acquired a significant stake in the arms deal, in particular, the provision of an armaments suite for corvettes for the South African Navy purchased by the Government. The State alleged that Mr Shaik's participation, through a local company called African Defence Systems (ADS), in which Thomson acquired a majority stake, was as a result of the applicant’s influence.

13. It alleged further, that during September 1999 and at Durban, Shaik, acting for himself and his companies, met Alain Thétard, a Thomson executive, and that a suggestion was made that in return for payment by Thomson to the applicant of R500 000 per year, until dividends from ADS became payable to Shaik, the applicant would shield Thomson from the anticipated enquiry and thereafter support and promote Thomson's business interests in South Africa.

14. The State alleged that the suggestion was then approved by Thomson's head office in Paris and that a seal was set on this arrangement at a meeting in Durban during March 2000 involving Thétard, Shaik and the applicant. This led to a document described in the evidence as 'the encrypted fax' being sent by Thétard from Pretoria to Thomson's head office.

15. A few days after Mr Shaik was convicted and sentenced (see S v Shaik & Others 2007 (1) SACR 142 (D)), on 20 June 2005, the successor of Mr Ngcuka, the new NDPP Mr Vusi Pikoli, announced that his office had decided to prosecute the applicant. This was followed up by the service on the applicant of a provisional indictment in November of the same year. The indictment was a mirror image of counts 1 and 3 of the charges of which Mr Shaik had been convicted.

16. The matter came before Msimang J on 31 July 2006. The State applied for a postponement to complete its investigations and finalize the indictment. The application was opposed. Msimang J, in his judgment of 20 September 2006 refused the postponement and called on the State to proceed with the trial. When the State indicated that it was not ready to proceed to trial, he struck the matter from the roll.

17. On 27 December 2007 the National Prosecuting Authority (“NPA”) decided once again to prosecute the applicant. That decision was followed up with the service of an indictment on the applicant on 28 December 2008. The applicant is currently charged together with Thint Holding (Southern Africa)(Pty) Ltd (the second accused) and Thint (Pty) Ltd (the third accused), with 18 counts, including charges of racketeering, corruption, money laundering and fraud.

The present application

18. Prior to the matter being called in court on 4 August 2008 the applicant brought an application in which he seeks an order in the following terms:

‘1.

That it is declared that the decision taken by the National Prosecuting Authority during or about June 2005 to prosecute the applicant is invalid and is set aside.

2.

That it is declared that the decision taken by the National Prosecuting Authority during or about December 2007 to prosecute the applicant, which decision was implemented by the service on the applicant on 28 December 2007 of an Indictment, a copy of which is annexed to the applicant’s founding affidavit as annexure “A” thereto (“the Indictment”), is invalid and is set aside.

3.

That it is declared that the Indictment is invalid and is set aside.

4.

That the respondent is ordered to pay the costs of this application on the scale as between attorney and client, such costs to include the costs consequent upon the employment of three Counsel.

5.

That the applicant is granted such further, other and/or alternative relief as to the above Honourable Court may seem meet.’

19. At the outset I must emphasise that these proceedings have nothing to do with the guilt or otherwise of the applicant on the charges brought against him. They deal with the disputed question of a procedural step that the State was required to comply with prior to instituting proceedings against the applicant. If there are defects, at best for the applicant, the present indictment may be set aside. Once the defects are cured, subject of course to any other applications that are brought, the State is at liberty to proceed with any charges they deem meet.

The application of the amicus curiae

20. The Society for the Protection of our Constitution applied to join these proceedings as an amicus curiae. It is necessary to deal with its application on the basis that its participation, evidence and submissions may have an impact on how the application should be approached. The Society gave notice in its application that it would seek an order, in terms of s 168 of the CPA, that the criminal prosecution against the applicant be stayed until he completed his anticipated term of office as President of the Republic of South Africa, alternatively that it be quashed in its entirety.

21. I am not aware of any case in our law, whether civil or criminal, in which an amicus curiae applied for relief in its own name. The observation must also be made that the relief that the Society seeks is drastic and considerably more far-reaching than that sought by the applicant himself.

The request by the amicus for a commission of enquiry into the violation of the applicant’s constitutional rights.

22. The amicus in his heads of argument asks for an order in the following terms:

‘20 a) An order that an investigation be conducted forthwith to identify all individuals who participated in the violation of the constitutional rights of President Zuma. These people must be charged with the crime of defeating the ends of justice…’

23. The amicus is effectively asking for the appointment of a commission of enquiry into the violation of the applicant’s constitutional rights. The courts have laid down when such commissions should be appointed.

24. In these papers frequent mention is made of the alleged irregularities in the arms deal. The applicant says in his founding affidavit at paragraph 26 that ‘questions relating to alleged irregularities in the arms deal were raised from September 1999. These were raised in the press and parliament.’

25. There are also widespread calls for a commission to be appointed to investigate the Arms Deal. This court has no power to appoint any commission of enquiry. The President is responsible for appointing commissions of inquiry in terms of Section 84 (2) (f) of the Constitution. In terms of Section 1 (1) (a) of the Commissions Act No. 8 of 1947, if the President has established a commission of inquiry he may make the provisions of the Act applicable provided the investigation objectively relates to a matter of ‘public concern’.

26. It was held in President of RSA and others v SARFU and others 2000 (1) SA 1 (CC) that the term ‘public concern’ must be a concern of members of the public which is widely shared (paragraph 175).

27. In Bell v Van Rensburg NO 1971 (3) SA 694 C the court referred at page 710 et seq to the Salmon Report in England with approval which held that the inquisitorial methods of commissions should never be used for a matter of purely local or minor public interest but should always be restricted to matters of material public interest with regard to which there exists a nation wide crisis of confidence. In such cases the court concluded that no other method of investigation would be adequate.

28. The court in the Bell case also approved statements to the effect that commissions should be appointed to maintain the unsullied integrity of our public life, without which a successful democracy is not possible. It held that it is essential that on the infrequent occasions when crises in public confidence take place, the evil, if it exists, should be exposed so that it can be eradicated lock, stock and barrel. On the other hand if it does not exist the general public can be satisfied that there is no substance in the general rumours and suspicions that gave rise to such crises. The court concluded that the public places its confidence in such a commission to conduct the most assiduous investigation and to call evidence in order to expose the truth. It is only in this manner that public confidence can be restored.

29. Mr du Plooy the deponent to the answering affidavit of respondent has indicated that all his investigations were as a result of what Ms Patricia de Lille said in Parliament. He says

‘The investigations had their origins in broad-ranging allegations of impropriety relating to the arms deal. Those allegations were made, inter alia, in September 1999 by an opposition member of Parliament Ms Patricia de Lille.’

30. It would be naïve to suggest that the allegations concerning corruption relating to the arms deal have ceased or diminished in intensity. They purport to involve very senior figures in government from the President downwards. The Constitutional Court – the highest judicial custodians of the fountain of all our power and authority – the constitution – has said the following of and concerning corruption and maladministration.

‘[4] Corruption and maladministration are inconsistent with the rule of law and the fundamental values of our Constitution. They undermine the constitutional commitment to human dignity, the achievement of equality and the advancement of human rights and freedoms. They are the antithesis of the open, accountable, democratic government required by the Constitution. If allowed to go unchecked and unpunished they will pose a serious threat to our democratic State.’

Per Chaskalson P (as he then was, later Chief Justice) in South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA 883 (CC).

31. In S v Ebrahim 1991 (2) SA 553 (AD) the court cited with approval the American case of Olmstead v United States 277 US 438, where Justice Brandeis said the following:

‘Decency, security and liberty alike demand that Government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the Government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.’

32. The applicant is accused of writing a letter dated 19 January 2001 to Gavin Woods MP the chairperson of the Parliamentary Standing Committee on Public Accounts with the intention of blocking the Heath Unit from investigating the Arms Deal. The applicant points out that the President’s office drafted the letter. There is no denial filed by the President. The court can hardly be unaware of the other dark mutterings emanating from the applicant that if he goes down others will follow him. Like a blinded Samson he threatens to make sure the temple collapses with him. The impression created is that the applicant has knowledge he will disclose if he is faced with conviction and sentence.

33. Only a commission of enquiry can properly rid our land of this cancer that is devouring the body politic and the reputation for integrity built up so assiduously after the fall of Apartheid. If the allegations made by Ms de Lille and a group of courageous journalists are true then there is no better reason for a commission to probe this corruption.

34. If their allegations are not true then the political leaders of our society should not be permitted to be defamed and slandered in this shameless and despicable way. If they are innocent they should not be required to resort to the ordinary courts to defend their good names and reputations. The public purse should fund a commission of enquiry so that they can govern in peace and tranquility and not under an ever present cloud of suspicion and scandal.

35. There is unimpeachable authority for this. The amicus seeks an order for a commission to vindicate the reputation of the applicant. This has been done on at least one previous occasion by the president. On 19 September 2003, scarcely one month after Mr Ngcuka held his press conference to announce his intention to prosecute Mr Shaik and not the applicant, a commission of enquiry was instituted by the President under Gov Gaz No 25481 Regulation Gazette No 7771, to

‘Inquire into, make findings, report on and make recommendations concerning the following: Whether at any stage prior to 1994, the National Director of Public Prosecutions, Mr BT Ngcuka, was –

1. registered with the security branch or any other service of any other security service of any pre-1994 government as an agent under the code name RS 452 or under any other code name; and

2. Acting as an agent for the Security Police and/or National Intelligence Service of any pre-1994 government.’

36. That commission was appointed to investigate the scandalous allegations made of the NDPP at that time. It seems to me so much more important to appoint a commission to thoroughly investigate whether there is truth in the allegations of widespread corruption and, if there is not, to clear the name of President Mbeki and those others unjustly accused.

37. To return to the request of the Amicus for this court to appoint a commission of enquiry into the scandalous allegations made of the applicant. From the above it is abundantly clear that the court cannot perform such a function. To make such an order would be what is known in the law as a brutum fulmen – a useless thunderbolt. It is only the president who is empowered by the constitution to appoint commissions. That relief sought by the amicus must therefore be refused.

38. The other relief sought by the amicus, seeking orders staying or dismissing the charges against the applicant permanently or until his term of office as President of South Africa ceases, is similarly misconceived and must be dismissed.

39. There are other reasons why the application of the amicus cannot succeed. In Certain Amicus Curiae Applications, In re: Minister of Health and Others v Treatment Action Campaign and Others (CCT8/02)(5 July 2002) the Constitutional Court said the following:

‘The role of an amicus is to draw the attention of the court to relevant matters of law and fact to which attention would not otherwise be drawn. In return for the privilege of participating in the proceedings without having to qualify as a party, an amicus has a special duty to the court. That duty is to provide cogent and helpful submissions that assist the court. The amicus must not repeat arguments already made but must raise new contentions; and generally these new contentions must be raised on the data already before the court. Ordinarily it is inappropriate for an amicus to try to introduce new contentions based on fresh evidence.’

40. The NDPP, on behalf of the State, objected to the admission of the Society as an amicus, while the applicant, through his counsel, while not expressly supporting the application, did not object thereto. In his affidavit in support of the amicus application, Mr William Mahlangu, the chairperson of the Society attacks the method of securing attendance at court of the applicant which is not a live issue in the application at all. The deponent also makes similar allegations of a political conspiracy against the applicant which add nothing to what the applicant has said himself. I accordingly find that the admission of the Society will not be of any assistance to this Court in its deliberations.

The applications to strike out

41. The respondent has applied to strike out 15 items, some including multiple paragraphs, of the applicant’s founding affidavit. The first item relates to the biographical material of the applicant and his part in the struggle for democratic rights in South Africa. The remaining paragraphs complained of can be broadly described as being offensive because they insinuate that there is political meddling in the prosecution process. This is a serious allegation and must be examined with the most anxious deliberation, as it strikes to the heart of our democracy. The independence of the NPA and the prohibition on executive interference will be examined in detail later in the judgment. The role of the courts to monitor and halt any such executive action was unequivocally asserted by the Constitutional Court in In Re Certification of the Constitution of the RSA 1996(4) SA 744 at para [146] where the Court held that

‘[section] 179(4) [of the Constitution] provides that the national legislation must ensure that the prosecuting authority exercises its functions, without fear, favour of prejudice. There is accordingly a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the Courts.’ (Emphasis added.)

42. There is therefore an emphatic constitutional imperative to outlaw any executive action which seeks to interfere with the independence of the prosecuting authority. The applicant in turn applies to strike out seven paragraphs and one annexure in the respondent’s answering affidavits. The material that causes offence relates to allegations of improper conduct by applicant and his legal representatives and the inclusion of other proceedings about such conduct and the award of costs in such other proceedings.

43. These are substantive applications and are accompanied by affidavits setting out the reasons for striking out the relevant paragraphs. Both applications include prayers for punitive costs on the attorney and client scale. At no stage did either party abandon these applications and the court is therefore compelled to deal with them. It is of course trite that in order to rule on what is irrelevant, or scandalous and vexatious the court has to look at the merits and what is relevant to the live issues therein. See Elher (Pty) Ltd v Silver 1947 (4) SA 173 (W) at 176-7. I accordingly propose to look at the merits before determining the strike out applications.

Was applicant entitled to make representations in terms of the relevant law?

44. The crisp issue for determination is whether the applicant was entitled to make representations to the NDPP before the decision was taken to prosecute him.

45. Section 179(5)(d) of the Constitution of the Republic of South Africa, Act no 108 of 1996 provides as follows:

‘[The National Director Public Prosecutions] may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director Public Prosecutions, from the following:

(i) The accused person.

(ii) The complainant.

(iii) Any other person or party whom the National Director considers to be relevant.’

46. The NDPP contends that these provisions do not apply to the decision to prosecute the appellant in this matter. It is common cause that the applicant was not afforded an opportunity to make representations.

47. The obligation to hear representations forms part of the audi alteram partem principle. What is required is that a person who may be adversely affected by a decision be given an opportunity to make representations with a view to procuring a favourable result. The affected person should usually be informed of the gist or the substance of the case, which he is to answer. The affected person has no general right to receive every piece of information relevant to the decision. See Chairman, Board on Tariffs and Trade v Brenco Inc and Others 2001(4) SA 511 (SCA) paras 13, 14, 29, 30 and 42. Radio Pretoria v Chairman, Independent Communications Authority of South Africa 2003(5) SA 451 (T) para 24.6.

48. In order to give effect to the right to procedurally fair administrative action, the respondent had to give the applicant adequate notice of the nature and purpose of the proposed administrative action. The proposed administrative action was the exercise of the discretion to change his decision not to prosecute to one prosecuting the applicant.

49. The duty to give a reasonable opportunity to make representations had to be in the context of the reasons not to prosecute the applicant which had changed thereafter.

50. In the case of Nisec (Pty) Ltd v Western Cape Provincial Tender Board and Others 1998 3 SA 228 (C) at 234-5 Davis J held that

‘In summary, it appears that a right to a hearing does include the provision of such information which would render the hearing meaningful in that the aggrieved party is given an opportunity to know all the ramifications of the case against him and thereby is provided with the opportunity to meet such a case.’

51. The ramifications of the case against the applicant would surely include the basis upon which the respondent had since changed his thinking about the decision to prosecute. As Colman J said in Heatherdale Farms (Pty) Ltd and Others v Deputy Minister of Agriculture and Another 1980 (3) SA 476 (T) at 486D--F:

`It is clear on the authorities that a person who is entitled to the benefit of the audi alteram partem rule need not be afforded all the facilities which are allowed to a litigant in a judicial trial. He need not be given an oral hearing, or allowed representation by an attorney or counsel; he need not be given an opportunity to cross-examine; and he is not entitled to discovery of documents. But on the other hand (and for this no authority is needed) a mere pretence at giving the person concerned a hearing would clearly not be compliance with the rule. . . . What would follow . . . is, firstly, that the person concerned must be given a reasonable time in which to assemble the relevant information and to prepare and put forward his representation; secondly he must be put in possession of such information as will render his right to make representations a real, and not an illusory one.'

52. The right to make representations would only be real and not illusory if the applicant knew what criteria were applied in not prosecuting him and how those had changed. I will return to the competing contentions of the parties in this matter but it suffices to say that the applicant submits the two decisions were as a result of a political campaign against him and the respondent maintains it was as a result of new evidence that had been discovered.

53. The applicant claims that the decision to prosecute him constitutes a ‘review’ of an earlier decision not to prosecute, hence he is entitled to make representations to the NDPP in terms of section 179(5)(d) of the Constitution, and the virtually identically worded section 22(2)(c) of the National Prosecuting Authority Act 32 of 1998 (‘the NPA Act’).The applicant has to have regard to the provisions of the national legislation, even though he refers to the constitution. It has been held that where legislation is enacted to give effect to a constitutional right, a litigant may not bypass that legislation and rely directly on the Constitution without challenging that legislation as falling short of the constitutional standard. See South African National Defence Union v Minister of Defence and others 2007 (5) SA 400 (CC) at paragraph 51. The applicant does not challenge the constitutionality of the relevant provision in the NPA Act. Where the two are in virtually identical terms it does not seem to me to be a problem to refer to the wording in the constitution. The fact that such wording is contained in that document could hardly diminish its status. It must always be borne in mind that section 2 provides that the Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.

The nature of the proceedings

54. There was some debate as to the nature of these proceedings. Mr Kemp suggested that they were in the nature of or akin to section 106(1)(h) of the Criminal Procedure Act, no 51 of 1977, which is to the effect that when an accused pleads to a charge he may plead that the prosecutor has no title to prosecute. Sub-section (3) provides that an accused shall give reasonable notice to the prosecution of such a plea though such may be waived by the prosecutor or the Court may on good cause shown dispense with such notice or adjourn the trial to enable such notice to be given.

55. It is manifest that such a plea is available if the prosecutor has not been properly appointed and in that case the proceedings are a nullity. I have a number of difficulties with the submission that this application is akin to or even in terms of section 106. Firstly the section commences with the words ‘When an accused pleads to a charge’. It is manifest that the applicant has not had the charges in the indictment put to him let alone pleaded to them. In addition I understand that it was the intention of the applicant to seek further particulars to the charge before it was put to him.

56. The second problem relates to the ambit of this particular plea. It has been held that the sub-section refers specifically to a plea addressing whether the prosecutor has title to prosecute. The plea therefore relates to the right or authority of the prosecutor to appear as a prosecutor in the case. See Ndluli v Wilken NO and others 1991(1) SA 297 (AD) at 306 C – D. I do not, therefore, believe that section 106 avails the applicant at this stage.

57. Are the proceedings therefore civil in nature? Mr Trengove argued that the Court is precluded from considering this application because it does not constitute administrative action in terms of the Promotion of Administrative Justice Act No 3 of 2000 (PAJA). Section 6(1) provides that any person may institute proceedings in a Court or tribunal for the judicial review of an administrative action. ‘Administrative action’ is defined in section 1(ff) to mean any decision taken by an organ of State which adversely affects the rights of any person and which has a direct, external legal effect, but does not include a decision to institute or continue a prosecution.

58. It is clear that a decision not to prosecute an accused is subject to review by the Court though not one to institute a prosecution. Put differently, the Court’s jurisdiction to review a decision to prosecute is excluded. Although clearly not identical this exclusion has much in common with what are termed ouster clauses.

59. In Rex v Padsha 1923 AD 281 the Appellate Division had reason to consider a section of the Immigration Regulation Act 22 of 1913 which provided that any person or class of persons deemed by the Minister on economic grounds inter alia shall be a prohibited immigrant. Acting under these powers the Minister issued a notice in which he deemed every Asiatic person to be unsuited on economic grounds to come and live in this country. Surprisingly the majority of judges in that Court upheld the validity of the notice. The majority decision saw nothing wrong with stigmatising the whole population of Asia as unsuitable on economic grounds from entering South Africa. Broadly stated, every Asiatic, the majority held, would threaten the job security of the population of this country.

60. Even traders, teachers, lawyers and priests were not welcome. Clearly the South African experience of one particularly troublesome immigrant had immense influence on the Court’s decision. The Court said and I quote

‘Moreover, a person of that class, exercising influence over his fellow Asiatics may become a disturbing factor in the industrial processes of the country, as actually happened in the now historic case of Gandhi.’

61. Fortunately Innes CJ, in the minority, saw things differently. The relevant law conferred upon Immigration Boards’ exclusive jurisdiction in deciding immigration matters and ousted the jurisdiction of the Courts. Chief Justice Innes then said

‘It is competent for Parliament to oust the jurisdiction of Courts of law if it considers such a course advisable in the public interest. But where it takes away the right of an aggrieved person to apply to the only authority which can investigate and, where necessary, redress his grievance, it ought surely to do so in the clearest language. Courts of law should not be astute to construe doubtful words in a sense which will prevent them from doing what prima facie is their duty, namely, from investigating cases of alleged injustice or illegality.’

62. The Courts have followed the words of Innes CJ in a large number of decisions which have adroitly side-stepped ouster clauses in a plethora of statutes.

63. PAJA excludes the Court’s right to review a decision to prosecute. Does this ouster provision preclude this Court investigating a defective procedure which preceded the making of the decision? Assuming the right of an accused to make representations, would this oust the right of the Courts to review a failure by the NDPP to afford such a right? It should be borne in mind that a review is essentially a court procedure aimed at inadequacies in the process and not the merits of the decision.

64. The decision taken to prosecute the applicant would be one in terms of section 179(5)(d) of the Constitution which is one taken, after consulting with DPPs and taking representations from the accused inter alia. On this hypothesis the decision by Mr Pikoli and his successor Mr Mpshe was not such a decision taken after consulting such persons and it falls outside the provision precluding the Court’s review powers. Put differently, the jurisdictional facts that should have preceded the making of the decision, were consultations with the DPPs and the right of the accused inter alia to make representations. Once these jurisdictional facts were absent the decision ceased to be one in terms of section 179(5)(d) and became justiciable under PAJA.

65. There is ample authority for this proposition, including Minister of Law and Order v Hurley and another 1986(3) 568 AD at 584 et seq. In that case the Court referred with approval to Rex v Padsha (supra). Hurley’s case involved an ouster clause relating to arrest and detention of persons in terms of section 29(1) of the Internal Security Act 74 of 1982, which could only take place if a policeman with the rank of lieutenant-colonel or higher had reason to believe the person had committed certain offences. The Court held that the ouster clause did not avail the police if a policeman, for example, of a lower rank performed the arrest. It did not avail the policeman also if he did not have reason to believe in the sense of informing the Court of the reasons. (See page 584 F – I).

66. In casu, therefore, if a decision needed the accused to make representations such was not a decision in terms of section 179(5)(d) if no representations were entertained. I believe the Court’s jurisdiction remains unimpaired. It is not therefore necessary to consider the fascinating arguments as to whether PAJA constitutes an exclusive codification of the rights of review. I am of the judgment that this application is in the nature of a civil review and I have therefore excluded my assessors from such decision.

The proper approach to interpretation

67. The courts have held that the proper approach to the interpretation of a statute is to seek the intention of the legislature. The rules of interpretation are set out in S v Toms: S v Bruce 1990 (2) SA 802 (AD) at 807H-808A where the court stated as follows:

‘The primary rule in the construction of statutory provisions is to ascertain the intention of the Legislature. One does so by attributing to the words of a statute their ordinary, literal, grammatical meaning. Where the language of a statute, so viewed, is clear and unambiguous effect must be given thereto, unless to do so… would lead to absurdity so glaring that it could never have been contemplated by the Legislature, or where it would lead to a result contrary to the intention of the Legislature, as shown by the context or by such other considerations as the Court is justified in taking into account… The words used in an Act must therefore be viewed in the broader context of such Act as a whole… When the language of a statute is not clear and unambiguous one may resort to other canons of construction in order to determine the Legislature’s intention. (Case references omitted.)

68. Both counsel Mr Kemp and Mr Trengove submitted that there was no ambiguity and that sensible meaning could be given to the words in the sub-section in question. It may be as well at the outset to define the limits of the competing arguments over the interpretation of the sub-section. It is clear that what occurred was a decision by the NDPP either by himself or in all probability in conjunction with the head of the Directorate of Special Operations, a Deputy National Director, Mr McCarthy. Secondly, the process they went through in deciding to prosecute the applicant was clearly a review in its ordinary sense of a reconsideration, alteration or substitution of a previous decision not to prosecute.

69. Although the right or duty to review a decision to prosecute or not to prosecute is clearly discretionary once the NDPP and Mr McCarthy decided to embark on that exercise there must be some circumstances in which, when they did so, they were obliged to consult the relevant Director of Public Prosecutions (DPPs) and take representations within a period specified by the National Director Public Prosecutions, from the accused person, the complainant and any other person or party whom the NDPP considers to be relevant. In other words there is no merit in an argument that there are no circumstances in which he or they are not obliged to consult inter alia the accused.

70. As it common cause that this obligation to take representations relates only to the NDPP it does not apply to a prosecutor in the Magistrates’ Court or the High Court, when confronted with a possible review of a decision to prosecute or not to. The words ‘after consulting the relevant DPPs’ seemed to be the cause of the most controversy in argument. Mr Trengove submitted that the duty of a NDPP to take representations of an accused were limited to only those occasions when he was overruling a decision of a DPP and not when he was overruling his own decision or the decision of his predecessor.

71. In other words the contention of the applicant, so the argument for respondent went, meant that the sub-section should be read without the words in question. In that event the sub-section would read that ‘[The National Director Public Prosecutions] may review a decision to prosecute or not to prosecute after taking representations within a period specified by the National Director Public Prosecutions, from the following: the accused person, the complainant and any other person or party whom the National Director considers to be relevant.’

72. Had the sub-section read in that fashion there would have been no doubt that the applicant had to have a chance to make representations once the NDPP embarked on a review. Mr Kemp submitted that the sub-section does not state that ‘[The National Director Public Prosecutions] may review a decision to prosecute or not to prosecute of a Director of Public Prosecutions, after consulting etc…’ It is also clear that the words in italics are not present and their inclusion would have also put the matter beyond any doubt. The real importance in the sub-section seems to be to allow representations, by an accused, where a decision not to prosecute has been reversed, and to a complainant, where a prior decision to prosecute has been altered to one not to prosecute.

73. Assuming that there must be occasions when representations had to be heard from an accused, those made by the NDPP would be in more serious matters than those made by the DPPs and their subordinates. Looked at from the perspective of the NDPP, the right to simply reverse his own previous decision not to prosecute, might be seen to arise from his elevated status. From the perspective of the accused, the fact that a decision required the attention of the NDPP would necessarily be of great moment to him (the accused) and would obviously require such an accused to be afforded the opportunity to make representations. That he cannot make representations in such a case, on the respondent’s version, would also, for obvious reasons, be an absurdity.

74. Another absurdity would be that an unscrupulous DPP intent on having a previous decision changed could either change it himself or ask someone below the rank of NDPP i.e. a Deputy National Director to review the decision. In each case the accused would be out in the cold in the sense of not being able to make representations.

75. I am of the view that all these considerations incline me to hold that there does seem to be some ambiguity in the sub-section and the words are not capable of unequivocal interpretation. Looked at from the accused’s perspective there is also a glaring absurdity that the review of a decision not to prosecute him of a lower subordinate of the NDPP, i.e. the DPP, in arguably a less serious matter would entitle him to make representations, while a more serious matter involving the decision of the NDPP alone would leave him out in the cold.

76. Given that there are these and other glaring absurdities and that the negation of the right of an accused to make representations may lead to a result contrary to the intention of the Legislature, it is necessary to look at the context in which the words appear in the Act as a whole. As appears from the authority cited earlier when the language of a statute is not clear and unambiguous one may also resort to other canons of construction in order to determine the Legislature’s intention.

77. To ascertain the intention of the legislature we have to look at the mischief the new provisions were designed to remedy. In order to properly understand the provisions of the section it is necessary to look at the history of the Act and its predecessors.

78. From time immemorial the executive has cherished the notion of usurping the independent function of the prosecuting authority and directing criminal prosecutions at its political opponents. That it was so under the Apartheid Government is manifest and the catalogue of prosecutions, from the Treason Trial in the early sixties, to the plethora of prosecutions thereafter under the Terrorism Act of 1967, bear witness to that stratagem. Many activists, fighting against the apartheid system, languished for many years behind bars, as a result of prosecutions at the instance of the executive.

79. The political control of prosecutions was effected by a series of statutes, the last, during the Apartheid era, being section 3 of the CPA. Section 3 of the CPA provided the authority to prosecute prior to 1992 and gave the Minister of Justice complete control over the provincial attorneys-general. Section 3(5) provided as follows:

‘An attorney-general shall exercise his authority and perform his functions under this Act or under any other law subject to the control and directions of the Minister who may reverse any decision arrived at by an attorney-general and may himself in general or in any specific matter exercise any part of such authority and perform any of such functions.’

80. The daunting prospect of the Minister of Justice, in the new South Africa, giving directions for prosecutions against the architects and executioners of the Apartheid policy, galvanized the mostly white legislature to pass the Attorney-General Act, no 92 of 1992, (the AG Act) in its death throes. The AG Act took away all political control over prosecutions, repealed section 3 of the CPA and provided in section 5(1) that every attorney-general had the authority to prosecute in any court within his jurisdiction. Section 108(1) of the Interim Constitution repeated the notion of an absence of political interference, when it vested attorneys-general with the power to institute prosecutions on behalf of the State.

81. Section 179 of the Final Constitution introduced the notion of National Director of Public Prosecutions (the NDPP) with powers of control over the old provincial attorneys-general, who now became Directors of Public Prosecutions.

82. A perusal of the remaining sub-sections of section 179 assists in interpreting the statute. Section 179(5) provides the NDPP with the responsibility to determine, with the concurrence of Cabinet members, responsible for the administration of justice and after consulting DPPs, prosecution policy which must be adhered to in all prosecutions. In addition he bears the responsibility to issue policy directives, which must be observed in all prosecutions. The corollary of this is the power of the NDPP to intervene in the prosecution process when prosecution policy directives are not complied with.

83. Section 179 provides for the creation of the Prosecuting authority. In terms of sub-section (1) it calls into being a single national prosecuting authority consisting of the NDPP, who is the head of the prosecuting authority, and is appointed by the President, and Directors of Public Prosecutions (‘DPPs’) and prosecutors as determined by an Act of Parliament.

84. Sub-section (2) of section 179 provides that 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.

85. Sub-section (3) provides that national legislation must ensure that the DPPs are appropriately qualified; and are responsible for prosecutions in specific jurisdictions, subject to subsection (5). Sub-section (4) continues by providing that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. I interpolate here to mention that this is but one of many clear indications that the NDPP and the prosecuting authority are independent and must be free of all political interference. Further reference will be made to this but it is instructive to note that the Constitutional Court has asserted this independence in no uncertain terms. Mention has been made of the Certification case in which the Constitutional Court held there is accordingly a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the Courts.

86. In Carmichele v Minister of Safety and Security and Another 2002 (1) SACR 79 (CC) the court held

‘Prosecutors have always owed a duty to carry out their public functions independently and in the interests of the public.’

87. Sub-section (5) provides that the NDPP must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the DPPs prosecution policy and must issue policy directives which must be observed in the prosecution process. The NDPP may intervene in the prosecution process when policy directives are not complied with and may review a decision to prosecute or not to prosecute as I have indicated above.

88. Sub-section (6) provides that the Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority. That this does not imply any right to interfere with a decision to prosecute is clear from what follows.

89. In their submissions to the Enquiry into the NDPP (the Pikoli Enquiry) by the South African Institute for Advanced Constitutional, Public, Human Rights and International law by Hannah Woolaver and Michael Bishop published in Advocate August 2008 at page 31 the authors state :

‘Therefore, the Minister's powers of oversight are confined to those included in the Act. As already discussed, these include the requirement that the Minister approve prosecution policy, and various duties on the NDPP to provide information and submit reports to the Minister. The Act gives no power to the Minister regarding the exercise of prosecutorial discretion in individual cases. As such, individual decisions regarding whether or not to prosecute in a particular case are not within the purview of the Minister's ‘final responsibility'. These rest in the exclusive discretion of the prosecuting authority, and ultimately the National Director.’

90. I agree with this summary of the position. Pursuant to the imperative to produce national legislation parliament has passed the NPA Act, which provides in terms of section 22 for the NDPP as the head of the prosecuting authority, to have authority over the exercising of all the powers, and the performance of all the duties and functions conferred by the Constitution or that Act law. Of particular interest in the present enquiry is sub-section (4) which provides that in addition to any other powers, duties and functions conferred on the NDPP he may conduct any investigation he may deem necessary in respect of a prosecution and may direct the submission of and receive reports from a DPP in respect of a case, a matter, a prosecution or a prosecution process or directions.

91. Section 32 provides a further indication of the desire of Parliament to prevent interference, political and otherwise from the decisions to prosecute. It provides for the impartiality of, and oath or affirmation by members of prosecuting authority. Sub-section (1)(a) provides that a member of the prosecuting authority shall serve impartially and carry out his duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law. Sub-section (1)(b) provides a very strong imperative against interference with a member of the prosecuting authority. It provides that no organ of state and no member of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority in the exercise of its duties and functions.

92. To enforce the seriousness of this prohibition on any interference by any person from the President downwards section 41 provides that contravention of that sub-section is a serious offence and any person contravening it shall be liable on conviction to a fine or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment.

93. That there should be no political influence was trenchantly stated in S v Yengeni 2006 (1) SACR 405 (T) at paragraph [51] where Bertelsmann and Preller JJ observed

‘The Constitution guarantees the professional independence of the [NDPP] and every professional member of his staff, with the obvious aim of ensuring their freedom from any interference in their functions by the powerful, the well-connected, the rich and the peddlers of political influence.’

94. What the learned judges were saying in that case was that the independence of the prosecuting authority is vital to the independence of the whole legal process. If one political faction or sectional interest gains a monopoly over its workings the judiciary will cease to be independent and will become part of a political process of persecution of one particular targeted political enemy.

95. How then does this impact on the power of the NDPP to review a decision to prosecute or not to prosecute? He sits at the apex of the prosecuting authority, insulated from political interference and is the final decision maker in the prosecuting process. Should an accused challenge a decision to prosecute, the NDPP is the final port of call in the administrative process of making representations. Having been largely instrumental in creating prosecuting policy and after giving prosecuting directives he is obliged to ensure they are carried out.

96. The hierarchy of prosecuting authority requires that decisions to prosecute are made by various levels in descending order from the NDPP and down through the ranks of DPPs to the lowest prosecutor. The NDPP is empowered alone to authorize prosecutions in certain instances including the Prevention of Organised Crime Act, no 121 of 1998, sections of the Films and Publications Act 65 of 1996, and The Implementation of the Rome Statute of the International Criminal Court Act, no 27 of 2002. The fact that authorization is required from the NDPP tends to suggest that he is not involved in the actual prosecution itself and authorizes the DSO to prosecute. Apart from that the lower levels of prosecutors below DPPs exercise a delegated authority to bring prosecutions in the courts.

97. Acting on this delegated authority prosecutors decide to prosecute or not depending on criteria established in the policy directives emanating from the prosecution policy. The prosecution policy talks of exercising its function ‘without fear, favour or prejudice’ and that the process must be ‘fair, transparent, consistent and predictable’. It purports to promote ‘greater consistency in prosecutorial practices nationally’. It requires

‘members of the Prosecuting Authority to act impartially and in good faith. They should not allow their judgment to be influenced by factors such as their personal views regarding the nature of the offence or the race, ethnic or national origin, sex, religious beliefs, status, political views or sexual orientation of the victim, witnesses or the offender.’

98. The policy states further that

‘The decision whether or not to prosecute must be taken with care, because it may have profound consequences for victims, witnesses, accused and their families. A wrong decision may also undermine the community’s confidence in the prosecution system… Once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable prospect of a conviction, a prosecution should normally follow, unless public interest demands otherwise.’

99. The prosecution policy deals with the question of public interest and mentions factors that should be taken into account including

‘the seriousness of the offence,… the manner in which it was committed, the motivation for the act and the relationship between the accused and the victim. The nature of the offence, its prevalence and recurrence, and its effect on public order and morale.’

100. The policy also makes mention of ‘the need for individual and general deterrence, and the necessity of maintaining public confidence in the criminal justice system.’

101. Mention is also made of the circumstances of the offender including, ‘previous convictions, criminal history, background, culpability and personal circumstances as well as other mitigating and aggravating factors.’

102. The policy speaks about restarting a prosecution and says the following

‘People should be able to rely on and accept decisions made by members of the Prosecuting Authority. Normally, when a suspect or an accused is informed that there will not be a prosecution or that charges have been withdrawn, that should be the end of the matter. There may, however, be special reasons why a prosecutor will review a particular case and restart the prosecution. These include… an indication that the initial decision was clearly wrong and should not be allowed to stand; an instance where a case has not been proceeded with in order to allow the police to gather and collate more evidence, in which case the prosecutor should normally have informed the accused that the prosecution might well start again… a situation where a prosecution has not been proceeded with due to the lack of evidence, but where sufficient incriminating evidence has since come to light…’

103. Regard should also be had to the Code of Conduct of the National Prosecuting Authority which was framed by the NDPP in terms of section 22(6)(a) of the NPA Act and which is binding on all members of the Prosecuting Authority. It provides that

‘prosecutors should be individuals of integrity whose conduct should be honest and sincere who should respect, protect and uphold justice, human dignity and fundamental rights as entrenched in the Constitution… strive to be and be seen to be consistent, independent and impartial…’

The NDPP as a reviewing authority

104. It is important to note that there is a constitutional imperative to carry out the prosecution policy and directives as the constitution uses the peremptory ‘must’ in stipulating those duties of the prosecution authority. The constitution and the NPA Act, read with the prosecution policy and directives posit a model of criminal justice with a National Director at the apex who is independent, fair, consistent and absolutely free of political influence. In fact to try to influence him is a criminal offence. Everywhere in the constitution, the NPA Act, the prosecution policy and directives and the Code of conduct are references to independence of prosecutors and their duty to act without fear or favour.

105. As the head of the prosecuting authority the NDPP must insure that all prosecutors follow the Constitution, the Act, and the other instruments. His powers to review or reconsider a decision to prosecute or not to prosecute a person must be made in the light of these principles. His constitutional imperative to review decisions to prosecute or not to prosecute is a unique role ascribed to him and allows him to exercise this discretion.

106. The concept of a review or reconsideration assumes a role somewhat elevated to and distant from the person whose decision is being reviewed. It also assumes an unbiased, open and honest reappraisal of the decision to prosecute. It is not to be lightly entertained and is a constitutional imperative directed at affording an accused the right to the reconsideration of a prosecution based on an acknowledgement of the embarrassment, dislocation, disruption and trauma that the mere bringing of a prosecution can entail. The effect of the arguments raised by the respondent is that the applicant is not entitled to enjoy this privilege, which is extended to others who by no stretch of the imagination can be regarded as necessarily more worthy.

107. In this regard I do not consider this application as a satellite or ancillary proceeding and I would distinguish it from the cases, both South African and foreign, cited by Mr Trengove, illustrating the very understandable reluctance of courts to consider matters which should more properly be ventilated in the trial proper. See R v DPP, ex parte Kebeline and Others [2000] 2 AC 326 (HL), Sharma v Brown-Antoine and Others [2007] 1 WLR 780 (PC). In none of those cases was there a provision which is the equivalent of section 179(5)(d).

108. The NDPP is the only member of the prosecuting authority who has such a constitutional and statutory obligation to review and any findings I make are restricted to this very narrow issue.

109. When the NDPP reviews a decision he will exercise this very important obligation in the light of the prosecution policy and directives and other considerations. On various occasions prosecutors have declined to prosecute because of the old or young age of the offender, the triviality of the offence, and the personal tragic consequences to the offender of his offence, where his crime touches those near and dear to him.

110. The NPA Act contemplates a number of prosecution scenarios which need to be considered in turn. The first scenario envisages that the NDPP or any Deputy NDPP, designated by him, has the power to institute and conduct a prosecution in any court in the Republic in person in terms of section 22(9) of the NPA Act. In other words the NDPP can handle the whole case himself and appear personally in court and conduct the prosecution. Nowhere in the papers does it appear that this is such a case.

111. The second scenario posits a prosecution by the DPPs, the old attorneys-general in their area of jurisdiction, in terms of section 24 of the NPA Act. Counsel were in agreement that the words ‘after consultation with the relevant DPP’ in the Constitution would mean that a review of one of their decisions by the NDPP would definitely require him to take representations from the accused, the present applicant. At the time of the writing of section 179(5)(d) there was no DSO and the occasions when the NDPP prosecuted in person would have been rare, if they ever occurred at all. Even today the manifold duties envisaged by the Constitution and the NPA Act would preclude him ever appearing in person.

112. It follows, therefore, that at the time of the promulgation of relevant sub-section of the Constitution and, indeed the NPA Act, all prosecutions would have been conducted by the DPPs in their geographic regions or their duly authorized prosecutors in the High and Magistrates Courts. This is abundantly clear and is supported by the affidavit of Mr Hofmeyr for the respondent, where he explains that the agreement reached at the Constitutional Committee of 4 April 1996 that drafted the legislation was to that effect. The agreement read in part

‘Mr Schutte reported that political parties had reached the following agreements regarding the Attorney-General:

i There would be one prosecutorial authority: consisting of the national attorney-general and other attorneys- general;

ii The attorneys-general would in principle be responsible for prosecutions, with the national attorney-general being responsible for laying down policy guidelines and ordering in specific cases a prosecution where the guidelines have not been met, or where an attorney-general has not met the guidelines and has refused to prosecute…’

113. So at the time of its enactment the sub-section in question would have availed every accused provided the NDPP decided to review a decision to prosecute as they would have all emanated from the DPPs. Excluded would have been the rare occasions he appeared in person.

114. Since the establishment of the DSO, what was the effect of that on the right of an accused to make representations, when the NDPP decided to review a decision to prosecute? The DSO has the power to prosecute and institute criminal proceedings in terms of section 7 of the NPA Act and it seems clear that the prosecution of Mr Shaik and the applicant was carried out by them. The present indictment against the applicant is signed by Aubrey Thanda Mngwengwe and he describes himself as an Investigating Director of the DSO.

115. Section 7(3) of the NPA Act provides that the head of the Directorate of Special Operations shall be a Deputy National Director assigned by the National Director. In terms of section 13(1)(aA) the president, after consultation with the Minister and National Director, may appoint one or more Directors of Public Prosecutions to the DSO. These would be properly qualified advocates, as the legislation prescribes, and similar to the A-Gs of the old days. The effect of this would be that there would be DPPs, who were head of the prosecution authority, in the provinces i.e. the old A-Gs, and the DPPs in the DSO.

116. The investigation into the applicant was ‘carried out by the DSO’ as Mr Ngcuka said at his press conference. The decision was made by the NDPP and Mr McCarthy, who was a Deputy National Director of Prosecutions and head of the DSO. This is not denied by the respondent in his answering affidavits. In fact the respondent puts up an affidavit by McCarthy in which he says ‘Ngcuka and I did not accept the investigation team’s recommendation…’

117. The NDPP and McCarthy overruled the decision of the investigation team, which was headed in all probability by a DPP. Senior Special Investigator du Plooy says in the answering affidavit he was ‘duly designated by the Investigating Director to conduct the investigation…’ Such would be an Investigating DPP. If the NDPP was to properly exercise his review powers with regard to DPPs it necessarily implies that he did not make the decision as such to prosecute as this would nullify his independence with regard to the review. Although he clearly did make the decisions in conjunction with McCarthy and probably a DPP that fact alone should, in my judgment, not have disentitled an accused to make representations.

118. The DSO as a juristic entity had not come into being and naturally there is no mention of it in 179(5)(d). Should the Constitution be read so as to include the DSO (which does have DPPs) when it mentions consultation with the relevant DPPs?

Section 39 of the Constitution

119. Section 39 of the Constitution deals with the interpretation of legislation including the Bill of Rights. It provides as follows:

‘39(1)  When interpreting the Bill of Rights, a court, tribunal or forum—

(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;

(b) must consider international law; and

(c) may consider foreign law.

(2)  When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

(3) …’

120. If it is clear that when interpreting the Bill of Rights, a court must promote the values that underlie an open and democratic society that is based on human dignity, equality and freedom. The provision of the right to make representations to an accused would pay appropriate tribute to his right to human dignity, given the opprobrium that is normally attendant upon a criminal trial. It would be grossly unequal to allow representations to an accused on the happenstance that his case emanated from a decision by a DPP and not the Deputy National Director, who was head of the DSO. It might well have gone through the hands of a DPP (the advocate with legal knowledge) in the DSO. I have mentioned that the head of the investigation team was probably a DPP and therefore the decision to prosecute involved consultation with him. We know from the press articles annexed that Mr Mpshe was consulting with his investigation team (headed by a DPP) before instituting a prosecution in the second half of 2007. I therefore conclude that he should have consulted with the applicant as well.

121. As I have mentioned sub-section (2) provides that when interpreting any legislation, which must include the Constitution itself, otherwise it would be self contradictory, every court must promote the spirit, purport and objects of the Bill of Rights. These rights include the very values that I have mentioned of human dignity, equality and freedom. The proper exercise of the NDPP’s review may in a proper case result in an accused’s freedom in the sense that if he decides to decline to prosecute, the accused does not stand in jeopardy of conviction and incarceration.

122. A consideration of the jurisprudence of the Constitutional Court, with regard to interpreting legislation, would seem to fortify me in this view. In Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors 2001 (1) SA 545 (CC) the Court held at paras [21]-[24] that:

'All law-making authority must be exercised in accordance with the Constitution. The Constitution is located in a history which involves a transition from a society based on division, injustice and exclusion from the democratic process to one which respects the dignity of all citizens, and includes all in the process of governance. As such, the process of interpreting the Constitution must recognise the context in which we find ourselves and the Constitution's goal of a society based on democratic values, social justice and fundamental human rights… The Constitution requires that judicial officers read legislation, where possible, in ways which give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, they are under a duty to examine the objects and purport of an Act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution…

Accordingly, judicial officers must prefer interpretations of legislation that fall within constitutional bounds over those that do not, provided that such an interpretation can be reasonably ascribed to the section…’

Reading in and reading out

123. It must be recalled that section 179(5)(d) speaks of the right the NDPP has to review decisions and then there is a comma followed by a number of sub-clauses. The sub-clauses conclude with the right of the NDPP to consult with any other person or party whom the NDPP considers to be relevant. Clearly the widest possible powers are given to the NDPP when he embarks on his review. It would seem to me to do no injustice to language to include the head of the DSO who is a Deputy NDPP.

124. As I have indicated when section 179 of the Constitution was fashioned all prosecutions flowed through the DPPs (except the rare occasions – if ever - when the NDPP personally prosecuted) and therefore every time the NDPP reviewed a decision he would have had to hear representations from the accused. With the advent of the DSO in 2000 no amendment was made to the NPA Act or the Constitution to include prosecutions that have their genesis there. In dealing with the present state of the NPA Act it is necessary to embark on the process of interpretation known as reading in.

125. The South African courts first accepted the notion of reading in as an acceptable constitutional remedy in National Coalition of for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC). In that case the court set out the following considerations inter alia for embarking on the process of reading in. I am paraphrasing paragraphs [73] – [76] of the judgment. The court held that the resulting provision once the words have been read in, must be consistent with the constitution. The resulting provision must interfere as little as possible with the laws adopted by the legislature and the court must be able to, in reading in the words, define with sufficient precision how the statute ought to be extended to comply with the constitution. I believe that to read into the legislation in question (the NPA Act) in such a manner as to extend the group that presently appears to be limited to DPPs, to include the NDPP himself and Deputy NDPPs, would be eminently consistent with the constitution and would define with sufficient precision the group involved.

126. All these circumstances incline me to the view that a proper interpretation of the sub-section in question means that the NDPP ought to have taken representations from the applicant before deciding to prosecute him. The failure to do so means that what he did was not a decision in terms of section 179(5)(d) and it was not therefore prohibited from scrutiny and review by the court in terms of PAJA.

The NDPP offer to hear representations

127. The denial of the right to make representation was attacked on another basis and although made in a slightly different context I am inclined to determine that point as well on the basis of the decision of the Constitutional Court in the case of S v Jordan and others (Sex Workers Education and Advocacy Task Force and others as Amici Curiae) 2002(6) SA 642 (CC) at para 21.

128. Mr Kemp on behalf of the applicant has argued that the NDPP, in the person of Mr Ngcuka, extended an invitation to the applicant, alternatively the world at large, to make representations on the matter of the prosecution in the matter of Mr Shaik, his entities and the applicant. Mention has been made of the Press statement made on 23 August 2003 and such contains the following paragraph:

‘25. We have never asked for nor sought mediation. We do not need mediation and we do not mediate in matters of this nature. However, we have no objection to people making representations to us, be it in respect of prosecutions or investigations. In terms of section 22(4)(c) of the Act, we are duty bound to consider representations.’ (Emphasis added).

129. What value does the court place on the NDPP’s statement that he had no objection to people making representations to him, be it in respect of prosecutions or investigations? The statement was prefaced with the mention of mediation and it could only have referred to a possible mediation with the applicant and his legal representatives. The NDPP undertook to consider representations. The simple corollary of this was that he had no objection to their receipt. But he went further and said that in terms of section 22(4)(c) of the NPA Act, he was duty bound to consider the representations. Again that seemed to be a promise and pledge to consider the representations.

130. Section 22(4)(c) provides that in addition to any other powers, duties and functions conferred or imposed on or assigned to the National Director by section 179 or any other provision of the Constitution, this Act or any other law, the National Director, as the head of the prosecuting authority, may consider such recommendations, suggestions and requests concerning the prosecuting authority as he or she may receive from any source.

131. The NDPP said he was duty bound to accept such representations as were tendered in terms of that section. The simple meaning was that it was a solemn undertaking to consider them when they came from any source. As far as I understand the position that offer was never retracted or withdrawn by Mr Ngcuka or any of his successors.

132. The applicant’s attorneys wrote a letter to the NDPP dated 11 October 2007 requesting an opportunity to make prior representations in respect of any decision to charge him. The letter is annexed and reads in part as follows:

‘The recent developments in the NPA inter alia;

1. The suspension of the National Director of Public Prosecutions;

2. The meeting of the Directorate of Special Operations of 25 June 2007;

3. The appointment of an acting National Director of Public Prosecutions

has not gone unnoticed.

Further, it has been reported that your office is intent on engaging in a review of certain cases of which the case against Mr Zuma constitutes one such case.

Through the proceedings and the documentation filed of record between Mr Zuma and the NDPP it is abundantly clear that certain allegations have been made about the manner in which both the investigation and the prosecution have occurred.

Accordingly may we request that in the conduct of such a review, that we be afforded an opportunity to make representations either orally or in writing which may better inform the decision which we understand you are applying your mind to.’

133. The suspension mentioned in the letter refers to the suspension of Mr Pikoli by the President and the appointment of an acting National Director, Mr Mpshe. The allegations that were made clearly related to the charge from the applicant that his case was being politically driven. The response by Mr Mpshe given the next day was very laconic and reads as follows:

‘The J.G. Zuma matter is not a subject of a review. This matter is undergoing further investigations the normal route for a decision to be taken. It is still being dealt with by the DSO.’

134. It could be argued that this is not a refusal to hear his representations but it was hardly a positive response. If the applicant’s matter was not subject to a review then there would be no need for the NDPP to hear representations. The only implication is that it was a refusal to consider any representations. It is not clear that the applicant was following up on the offer, made by Mr Ngcuka, at the press conference I have mentioned. Even if he was unaware of such offer it does not seem to matter, as long as the offer remained open.

135. Mention is made in the letter of the review of certain cases and this is clarified as follows by the applicant, who states that during 2007 the NPA reviewed various cases, including that of Commissioner J Selebi. Certain newspaper reports are annexed. Following Mr Pikoli’s suspension Mr Mpshe was appointed acting NDPP and he applied to have certain warrants directed at Mr Selebi set aside.

136. Applicant says ‘My case was one of those reported to be under review. It would be odd and constitute unequal and discriminatory treatment if my case was not reviewed and no representations were called for.’

137. The newspaper article in question states

‘The NDPP will decide soon whether to proceed with charging two of the country’s most powerful figures ANC presidential frontrunner Jacob Zuma and police commissioner Jackie Selebi. The NPA said yesterday that Mokotedi Mpshe was ‘deliberating’ the way forward in both cases… NPA spokesman Tlali Tlali said Mpshe had met the team investigating Zuma and was presented with a ‘final briefing’ on the continuing probe into allegations of corruption. This could herald the beginning of the end of a seven-year investigation into Zuma who has emerged as the runaway candidate for the presidency of the ANC… Tlali said prosecutions boss Mpshe would carefully consider all the information presented to him by the investigating team before making a decision…

Mpshe is also applying his mind to the matter involving Selebi. Tlali said the panel appointed to review the charges against Selebi had also submitted a report to Mpshe yesterday. ’

138. Mr Mpshe, as I have indicated, denies that the case of the applicant was under review. Be that as it may, the question which remains was whether he was obliged to give the applicant the chance to make representations, arising out of the promise of the predecessor, at the press conference or out of the request made by the applicant’s lawyers.

139. It is difficult to evaluate the real significance of the offer made by Mr Ngcuka and the letter requesting the chance to make representations, sent four years later, without considering the events that took place in between. The applicant suggests the delay was all part of the political machinations of the NDPP, who denies it most vehemently. The applicant also suggests that the refusal to hear his representations was as a result of the political meddling, which had bedeviled his prosecution from the outset. The respondent wishes to strike these allegations from the record. In other words, the applicant’s contentions are that the independence of the NDPP was compromised and that this affected not only the initial decision, but also the later ones. For this reason it was all the more important for him to make representations, concerning his prosecution.

140. It is also necessary to look at these happenings to understand why certain key events took place. The first relates to the reasons for the decision not to prosecute the applicant in the first place. Secondly it must be borne in mind that in the mean time Mr Pikoli was suspended and Mr Mpshe was now saddled with the responsibility of deciding whether to hear representations promised by his second to last predecessor.

Legitimate expectation

141. The court has to consider whether the statement made by the NDPP at the press conference gave the applicant the legitimate expectation of making representations before the decision was reversed. In President of the Republic of South Africa v SARFU 2000 (1) SA 1 (CC) at page 94 paragraph [212] the full court dealt with the doctrine of legitimate expectation and approved the judgment in Administrator, Transvaal and others v Traub and others 1989 (4) SA 731 (AD). In the last-mentioned case the court dealt with legitimate expectation at 755 et seq and said the following inter alia (I omit the footnotes and case references):

‘[L]egitimate expectations… are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis…[E]ven where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the Courts will protect his expectation by judicial review as a matter of public law.... Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue....

The particular manifestation of the duty to act fairly which is presently involved is that part of the recent evolution of our administrative law which may enable an aggrieved party to evoke judicial review if he can show that he had "a reasonable expectation" of some occurrence or action preceding the decision complained of and that that "reasonable expectation" was not in the event fulfilled.'

As the cases show, the principle is closely connected with "a right to be heard". Such an expectation may take many forms. One may be an expectation of prior consultation. Another may be an expectation of being allowed time to make representations....'

142. Did a legitimate, or reasonable, expectation arise in this matter either from an express promise, given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue?

143. It might be argued that this was a vague and general invitation to the public at large to make representations on any matter. The words ‘any source’ are of the widest import and are not confined in any respect. They must include the applicant, if given their widest interpretation. If given a narrow interpretation they would seem to be directed at the applicant and his lawyers. Mention was made to mediation in the same paragraph which could only have referred to the applicant. Secondly, the paragraph that precedes this one says the following:

’24. We did not leak the questions put to the Deputy President to anyone else. Only two people in the entire organizations had the questions, the National Director and one of his deputies. The questions were given to the lawyers of the Deputy President. They would know best.’

144. The offer to allow representations could not apply to Mr Shaik and his corporate entities, as a decision had been already made to prosecute them. As a consequence of this the applicant is the obvious person to whom they are addressed.

145. Was this a serious offer by the NDPP or an off- the- cuff expression of goodwill to a man that had been within a hair’s breadth of being prosecuted himself? I get the impression that the applicant was not entirely off the hook so to speak and that investigations into him would continue once the NDPP had assessed how the prosecution against Mr Shaik proceeded. Portions of affidavits by Mr McCarthy the head of the DSO are put up to indicate that during or after the press conference Mr Ngcuka gave no promise that the applicant would never be prosecuted – in fact he said he might well be.

146. When he made the offer to hear representations Mr Ngcuka explained how exhaustive the two year investigation was and said the following:

’27. Evidence was obtained through searches and seizures that were conducted in Durban, France and Mauritius. Documentation was obtained from various entities, including 118 bank accounts relating to numerous entities and individuals. A vast number of witnesses from across the business and private spectrum were interviewed, consulted and questioned over the period.’

147. Mr Ngcuka informed the press that all these endeavours persuaded the investigation team to recommend a prosecution against the applicant. He then stated:

’32. After careful consideration in which we looked at the evidence and the facts dispassionately, we have concluded that, whilst there is a prima facie case of corruption against the Deputy President, our prospects of success are not strong enough. That means that we are not sure if we have a winnable case.’

148. The normal test for the institution of a prosecution is set out in Du Toit et al in Commentary on the Criminal Procedure Act at page 1-4M as follows:

‘A prosecutor has a duty to prosecute if there is a prima facie case and if there is no compelling reason for a refusal to prosecute. In this context ‘prima facie case’ would mean the following: The allegations, as supported by statements and real and documentary evidence available to the prosecution, are of such a nature that if proved in a court of law by the prosecution on the basis of admissible evidence, the court should convict. Sometimes it is asked: Are there reasonable prospects of success? The prosecution, it has been held, does not have to ascertain whether there is a defence, but whether there is a reasonable and probable cause for prosecution – see generally Beckenstrater v Rottcher and Theunissen 1955(1) SA 129 (AD) at 137 and S v Lubaxa 2001 (2) SACR 703 (SCA).’

149. In other words Mr Ngcuka was saying that he had what would normally be sufficient to prosecute the applicant and yet he declined to so. This decision was most strange for other important reasons connected to the nature of the offences. Bribery, as a common law offence, or in its statutory form, under the Corruption laws, is a bilateral offence. It cannot be committed by a person alone. In the papers reference is made to an affidavit in prior proceedings by Mr Ngcuka in which he says

‘At the time when I prepared my announcement, I was in possession of a draft indictment against, inter alios, Schabir Shaik. In this indictment, reference was of necessity made to his relationship with [Mr Zuma] and the bribe agreement with Thetard. This indictment spelled out, far more eloquently than my statement, what was clearly a prima facie case of corruption against [Mr Zuma].’

150. Given that a decision was made to prosecute Mr Shaik and his corporate entities, the decision not to prosecute the applicant, when there was a prima facie case and bribery is a bilateral crime, was bizarre to say the least. It was a total negation of the Constitutional imperatives imposed on the NDPP to prosecute without fear and favour, independently and in consistent, honest and fair fashion. I have already made reference to the Constitution, the NPA Act and the prosecution policy, directives and code of conduct in this regard.

151. The question of public policy could never have come into question, nor was it given as a reason. As the prosecution policy points out, the circumstances of the offender can be taken into account, but if the person implicated occupied the second to most senior position in government, as Deputy President, that was hardly a reason to decline to prosecute. I have already mentioned the powerful words of the Constitutional Court concerning corruption and how it can destroy a country. Squires J in S v Shaik and others 2007(1) SACR 12 said at page 239:

‘I do not think I am overstating anything when I say that this phenomenon can truly be likened to a cancer, eating away remorselessly at the fabric of corporate probity and extending its baleful effect into all aspects of administrative functions, whether State official or private-sector manager. If it is not checked, it becomes systemic and the after-effects of systemic corruption can quite readily extend to the corrosion of any confidence in the integrity of anyone who has a duty to discharge, especially a duty to discharge to the public, leading eventually, and unavoidably, to a disaffected populace.’

152. See also S v Shaik and others 2007(1) SACR 247 and 319 (SCA) where bribery was called an ugly offence and insidious because it is difficult to detect and more difficult to eradicate.

153. The more senior the status of a person in the government hierarchy the more seriously the courts regard his corruption. In S v Van der Westhuizen 1974(4) SA 60 (C) at 63 G-H the court said that ‘the nature of the office held by a person who takes a bribe can have a bearing on the sentence. If he holds a high office, this fact may be regarded as an aggravating circumstance.’

154. The legitimate quest for the bigger fish in the world of crime was eloquently expressed in Mohunram v National Director of Public Prosecutions and Another 2007(4) SA 222 (CC) at para [155] where Sachs J in the Constitutional Court said, in the context of the forfeiture of assets, involved in organised crime, that

‘If the (Asset Forfeiture Unit) is to accomplish the important functions attributed to it, it should not unduly disperse the resources it has at its command. Its manifest function as defined by statute is to serve as a strongly empowered law enforcement agency going after powerful crooks and their multitude of covert or overt subalterns. The danger exists that if the AFU spreads its net too widely so as to catch the small fry, it will make it easier for the big fish and their surrounding shoal of predators to elude the law. This would frustrate rather than further the objectives of the [Prevention of Organised Crime Act]."

155. If there was a prima facie case of serious corruption against the Deputy President there were, in my view, no reasons of public policy why he should not have been prosecuted simultaneously with Shaik. Its failure to do so brought justice into disrepute. The NDPP should either have charged the applicant or made no mention of a prima facie case of corruption. The applicant is effectively complaining that he was found guilty (at the Shaik trial) in absentia: Shaik was convicted but the applicant was dismissed as Deputy President.  He puts up the speech by the President in which he says:

‘As Honourable Members would know, the judgment contains detailed matters of fact and inference against which penalties have been meted out. At the same time, proceedings pertaining to a possible appeal to higher courts are still pending. However, the judgment contains some categorical outcomes.

These are that the court has made findings against the accused and at the same time pronounced on how these matters relate to our Deputy president, the Hon Jacob Zuma, raising questions of conduct that would be inconsistent with expectations that attend those who hold public office.’

156. The applicant complains of the legality of such a procedure. He says the following

‘Shortly before the 20^th (on or about Sunday, 6 June 2005), I was requested by the President of the RSA, through others, to resign in the light of the Shaik judgment. The request at that time was hard to justify on any legal basis.’

157. In the ordinary course of events, if one was relying on a judgment of a court, one could not say that the findings of fact and law were correct, until a final court of appeal had decided them. Secondly, a judgment in a criminal case against one party is not evidence against persons, who were not parties to the proceedings. In other words the fact of the conviction of Mr Shaik and his corporate entities was not evidence against the applicant. In R v Lee 1952 2 SA 67 (T) the court held as follows:

‘Now a judgment in personam, whether given in civil or in criminal proceedings, though it is evidence of the fact that the judgment was given, is not evidence, against persons who are not parties to the proceedings, of the truth or correctness of the judgment… Judgments inter partes, or, as they are sometimes called, judgments in personam, are not… admissible for or against strangers in proof of the facts adjudicated. They are not admissible against them because it is an obvious principle of justice that no man ought to be bound by proceedings to which he was a stranger, and over the conduct of which he could therefore have exercised no control…’

158. At common law, had the applicant been an ordinary employee and not Deputy President or a cabinet minister, it would have been illegal for the President to have taken into account the judgment of Mr Shaik in dismissing the applicant. According to section 90(2) of the Constitution, however, the president appoints the deputy president and Cabinet ministers, assigns their powers and functions, and may dismiss them. Even though the President’s decision was unfair and unjust, given the fact that the applicant was not given a chance to defend himself in a court of law, it was not an illegal act given his power to hire and fire his Deputy or cabinet ministers, at his will.

159. Immediately after his dismissal the applicant was charged, as I have indicated, with mirror images of the charges against Mr Shaik, more especially those in counts 1 and 3. The applicant complains that this was all part of a political strategy, because of the rivalry between himself and the President for the position of President of the ANC, to be decided at Polokwane in December 2007. He maintains that this strategy involved stigmatizing him as being prima facie corrupt and charging Mr Shaik, without ever letting him defend himself, and then dismissing him. This was one of the allegations that the respondent sought to strike out. It is also a matter of common knowledge that the applicant was replaced by Mrs Phumzile Mlambo-Ngcuka as Deputy President.

160. These allegations are a modern echo of what the French Cardinal Richelieu, Chief Minister of Louis Xlll, once said in the seventeenth century when he observed that in matters of state the weakest are always wrong. Others have inclined to the same view. The great Greek historian Thucydides in the fifth century BC wrote that the question of justice only enters where the pressure of necessity is equal. He was cynical enough to aver that the powerful exact what they can, and the weak grant what they must. Fortunately with the advent of the rule of law matters are now quite different. The courts are there to make sure that power and wealth are not deciding factors in the courts.

161. The Canadian Supreme Court has described the judicial function as ‘absolutely unique’ with the consequence that ‘The judge is in “a place apart” in our society and must conform to the demands of this exceptional status’. See Therrien (Re), 2001 SCC 35 (CanLII) ([2001] 2 S.C.R. 3 • (2001), 200 D.L.R. (4th) 1) at para 108 -112. When the public forfeited their right to resort to arms they placed the resolution of their disputes in the hands of judges and agreed to abide by their decisions. There came into being a secular priesthood that should remain apart from the taint of politics.

162. In the decision of Lord Atkin in Liversidge v Anderson [1942] AC 206 the duties of judges were emphasized. Given the genesis of the applicant’s charges there is some irony in his mention of the ‘clash of arms’ in the passage in question, but it must be borne in mind that the judgment was given during the worst days of World War 2. Lord Atkin said:

‘In this country, amid the clash of arms, the laws are not silent. They may be changed but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.’

163. In order to understand the background of the decision; firstly, not to charge the applicant and, thereafter, to charge him, it is necessary to understand the background and reasoning process. It is also necessary to try and explore the reasons for these decisions to evaluate his right to make representations. I have indicated that the cases show that he must be given the gist of the reasons for the change of mind, otherwise his right to make representations will be illusory. Finally, of course, it is necessary to decide whether the allegations of political meddling are scandalous, vexatious and irrelevant as alleged in the strike out applications.

164. I have mentioned that the independence of the NPA and the prohibition on executive interference has been asserted by the Constitutional Court in the Certification case. It will be recalled that the court held that any executive action inconsistent with prosecutorial independence would be subject to constitutional control by the Courts. This court must carry out that function, not only in the interests of the present applicant, but also on behalf of all the people of South Africa, who have a very legitimate interest in this fundamental principle.

165. In the Certification case the Constitutional Court referred to the decision of Ex parte Attorney-General, Namibia : In re The Constitutional Relationship between the Attorney-General and the Prosecutor-General 1995(8) BCLR 1070 (Nms). In the last mentioned case Leon AJA quotes with approval the remarks of Ayoola J at a key note address when opening the First Conference of Commonwealth Directors of Public Prosecutions as follows at pages 1085 - 6 :

‘The manner in which such discretion (to prosecute or not) is exercised and the process of prosecutorial decision-making are central to the criminal justice system. If prosecutorial decisions are to lead to public confidence in the system and are to be consistent with human rights norms they must also not only be just but also be seen to be so. The mechanism for arriving at such decisions must itself be seen to be such as can be conducive to fairness.’

166. Leon AJA went on to quote the following passage with approval at page 1086 :

‘Experience in many parts of Africa has shown that arbitrary and oppressive use of prosecutorial powers have often been potent weapons of fostering political ends to the detriment and ultimate destruction of democracy. On the other hand, experience, such as that of Gambia, has also shown that where there is no abuse of prosecutorial powers public confidence in the criminal justice system is maintained.’

167. Whether the NDPP was influenced by the executive is not easy for the applicant to prove as that sort of knowledge would obviously lie with the NDPP. He would not, obviously, be privy to the oral or written instructions that the executive may have given to the prosecuting authority. The NDPP denies it most emphatically and says at all times the decision, not to prosecute the applicant, and, thereafter to prosecute him were his alone. In fact he stigmatizes the allegations of political interference as scandalous, vexatious and irrelevant.

168. When a party has peculiar knowledge of a fact he is not for that reason saddled with the burden of proving that fact: peculiar knowledge affects the quantum of evidence expected from the party but does not affect the incidence of the burden of proof. If such party fails to adduce evidence, in other words to transmit his or her knowledge to the court, the inference which is the least favourable to the party’s cause may be drawn from the proven facts.

See Abrath v The North Eastern Railway Co (1883) 11 QB 440; Union Government v Sykes 1913 AD 156; Molteno Bros v SA Railways 1936 AD 321 333; Naude v Tvl Boot & Shoe Manufacturing Co 1938 AD 379 392; Durban City Council v SA Board Mills Ltd 1961 3 SA 397 (A) 405A; Gericke v Sack 1978 1 SA 821 (A) 827E. The same rule applies in criminal cases: R v Cohen 1933 TPD 128; Rex v Hoffman 1941 OPD 65; S v Theron 1968 4 SA 61 (T) 63; S v Langeveldt 1969 1 SA 577 (T) 581H; S v Witbooi 1971 4 SA 138 (NC) 140–141. See also Galante v Dickinson 1950 2 SA 460 (A) 465; Botes v Van Deventer 1966 3 SA 182 (A) 1888; Henry v SANTAM Insurance Co Ltd 1971 1 SA 468 (C) 472–473.

169. The effect of all this is that the Courts take cognizance of the handicap under which a litigant may labour where facts are within the exclusive knowledge of his opponent and they have in consequence held, as was pointed out by Innes JA in Union Government v Sykes 1913 AD 156 at page 173, that ‘less evidence will suffice to establish a prima facie case where the matter is peculiarly within the knowledge of the opposite party than would under other circumstances be required.’

170. The titanic political struggle between the applicant and the President is no concern of the court unless it impacts on issues to be decided in this application. The rivalry of the applicant and the President is hardly open to question and the polarization of the country into opposing camps before and after Polokwane is well known. The President of this country is restricted to two terms of office by operation of the constitution and his campaign to seek the leadership of the ANC was hotly contested by the applicant.

171. In LAWSA Second Edition Vol 5(3) title Constitutional Law at paragraph 221 the learned author Professor George Devenish describes the functions and role of the President as follows.

‘The Constitution creates an executive presidency, and not merely a titular one as prevailed under the 1961 Republican Constitution…The president is elected by Parliament from among its members, but must vacate his or her seat on assuming office, thereby establishing an extra-parliamentary presidency. This allows the incumbent to be free to a certain extent from the turbulent and unpredictable nature of South African party politics, as is manifested in the robust party political activity in the National Assembly, although the president remains the leader of the victorious governing political party. Such a president is then able to fulfil a unifying, reconciling and, if necessary, mediating role in the profoundly cleavaged society that South Africa is, with its potential for conflict and violence.’

172. Had the President won the election as party leader at Polokwane he could still not have been elected President of the country, without a constitutional amendment. The learned professor refers to the practice that the president of the majority party is the president of the country. The corollary of this is that if the president of the party was not president of the country that unifying and reconciling role in our profoundly cleavaged society would not take place.

173. At its lowest then the decision to stand as party leader was controversial and not in accordance with the Westminster system we espouse in this country. The applicant claims his woes are attributable to his decision to accept nomination of others and stand for the position of head of the party, as a rival to the incumbent president. Clearly the stakes were high and the competition fierce.

174. We know that the decision not to prosecute him was for reasons totally antithetical to the constitutional duties of the NDPP to make consistent, fair and honest decisions without fear or favour and we are conscious of the irrationality of charging the briber and not the recipient of bribes, but does this alone show political conspiracy? One has to examine the decision not to prosecute the applicant to ascertain whether it was made from fear or favour and whether it was consistent.

175. At first blush a decision not to prosecute the Deputy President of the country appears to be as a favour to the second to highest ranking politician in the country. The applicant denies this and puts quite a different slant on the objective. He says it was all part of a political agenda that had as its objective the favouring of President Mbeki in his quest for a further term of office as ANC President. Those are allegations that the respondent seeks to strike out of the record. Is there any evidence of this? Mr Ngcuka says that he and Minister Maduna ‘informed the Deputy President about this investigation shortly after it started.’ That hardly constitutes proof of any interference.

176. It is important to establish how extensive the political interference, influence or pressure has to be to be recognized by the courts. In Sharma’s case, mentioned above, the Privy Council of the House of Lords in England considered an appeal from the West Indies. The appellant was the Chief Justice of Trinidad and Tobago and he was charged with attempting to pervert the course of justice by trying to influence the decision of the Chief Magistrate in a trial involving Mr Basdeo Panday, the Leader of the Opposition and a former Prime Minister. Mr Panday was charged with corruption and the Chief Justice had three meetings with the Chief Magistrate during which he tried to influence the decision in favour of Mr Panday.

177. The prosecution authorities investigated the removal of the Chief Justice, in terms of their constitution and the matter was placed in the hands of the Deputy Director of Public Prosecutions. She brought a prosecution against the chief justice for perverting the course of justice during his three meetings with the Chief Magistrate, when he spent time trying to secure a result in favour Mr Panday. The Chief Justice brought an application to review the decision to prosecute him and sought an order staying all action consequential on that decision to prosecute. In other words he was asking the court to declare the indictment invalid. Had the Chief Justice been successful with his application, the indictment would have been set aside and no further charges could be brought until the prosecuting authority had been purged of the malign political influence.

178. The Chief Justice in that matter alleged that there was improper, politically-motivated interference in the prosecution process against him i.e. the Chief Justice, by the Prime Minister and the Attorney-General and the others, including the Deputy Director who brought the prosecution.

179. The Privy Council gave two separate judgments the main judgment being by Lord Bingham of Cornhill and Lord Walker of Gestingthorpe, who said the following at page 786 et seq:

‘The rule of law requires that, subject to any immunity and exemption provided by law, the criminal law of the land should apply to all alike. A person is not to be singled out for adverse treatment because he or she holds a high and dignified office of state, but nor can the holding of such an office excuse conduct, which would lead to the prosecution of one not holding such an office. The maintenance of public confidence in the administration of justice requires that it be, and be seen to be, even-handed.

It is the duty of police officers and prosecutors engaged in the investigation of alleged offences and the initiation of prosecutions to exercise an independent, objective, professional judgment on the facts of each case. It not infrequently happens that there is strong political and public feeling that a particular suspect or class of suspect should be prosecuted and convicted… This is inevitable, and not in itself harmful so long as those professionally charged with the investigation of offences and the institution of prosecution do not allow their awareness of political and public opinion to sway their professional judgment. It is a grave violation of their professional and legal duty to allow their judgment to be swayed by extraneous considerations such as political pressure.’

180. I would say that in South Africa it goes far beyond being a ‘grave violation of their professional and legal duty [for prosecutors] to allow their judgment to be swayed by extraneous considerations such as political pressure’ as it is a very serious criminal offence for which the legislature has put a maximum sentence of 10 years imprisonment for any breach.

181. The other Lords of the Privy Council did not differ on this point and Baroness Hale of Richmond, Lord Carwell and Lord Mance approved a previous decision of the Court of Appeal. That decision was to the effect that the court has power to interfere with a prosecution, because the judiciary accepts responsibility for the rule of law. As such it embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. (At page 794 G-H). These very same principles are, of course, core values of our own constitution. The learned Lords then said at page 795 A-B:

‘In our opinion, the same responsibility extends to the oversight of executive action in the form of a police or other prosecutorial decision to prosecute. The power to stay for abuse of process can and should be understood widely enough to embrace an application challenging a decision to prosecute on the ground that it was arrived at under political pressure or influence or was motivated politically rather than by an objective review of proper prosecutorial considerations (such as, in England, those set out in the Code for Crown Prosecutors issued under the Prosecution of Offences Act, 1985.)’

182. An examination of the above passage posits that the test is therefore a proscription of decisions to prosecute that are arrived at under political pressure, or influence, or those that were motivated politically, rather than by an objective review of proper prosecutorial considerations. The South African equivalents are of course the prosecution policy, the code and directives I have already mentioned above. They posit a prosecution model which is totally independent of political influence and which prosecutes fairly, consistently and without fear or favour to anyone. I have already indicated why the failure to prosecute the applicant was an egregious breach of those principles.

183. The learned Lord Bingham of Cornhill and Lord Walker of Gestingthorpe then stated that under the Judicial Review Act 2000, judicial review lies against a public prosecutor, for instance, if he acts on instructions from an unauthorized person. The Lords then continue

‘It is well established that a decision to prosecute is ordinarily susceptible to judicial review, and surrender of what should be an independent prosecutorial discretion to political instruction (or the Board would add, persuasion or pressure) is a recognized ground of review…’

184. After indicating the clear principles involved the case was decided on the facts. In that matter the prosecutor had no meetings with any politicians or even any contact. The Privy Council then decided at page 793 that

‘there was no reasonable basis for concluding that the Deputy DPP’s decision or advice was influenced by political pressure. She had been expressly instructed to make her own independent decision. She swore that she did so, having no contact with the Prime Minister on any subject nor with the Attorney General on this subject.’

185. The Privy Council then dismissed the appeal of the Chief Justice for a lack of any evidence of interference of any sort and effectively denied his bid to stay all actions consequent on the decision to prosecute.

186. Our South African law is no different. In S v Yengeni op cit the appellant – a former member of Parliament – had been convicted of corruption arising out of an aspect of the arms deal, relating to his purchase of a motor vehicle. The appellant had discussed his potential sentence with a former Minister of Justice and Constitutional development, Mr Maduna and the then NDPP, Mr Ngcuka. This discussion took place at a meeting at the Minister’s home during January 2003. It was also common cause that the three of them agreed that ‘should the appellant plead guilty to a “watered-down” charge, the State would not seek a custodial sentence. Bertelsmann and Preller JJ said the following at paragraph [57]

‘It was indubitably ill-advised for the former National Director of Public Prosecutions [Mr Ngcuka] to be seen to participate in a discussion with the Minister [Mr Maduna] and the appellant. The independence of the office that he held, and the fearless and unfettered exercise of the extensive powers that this office confers, are incompatible with any hint or suggestion that he might have lent an ear to politicians who might wish to advance the best interests of a crony rather than the search for the truth and the proper functioning of the criminal and penal process.’

187. In this matter apart from Minister Maduna informing the applicant about this investigation shortly after it started, was there any other suggestion that there was political interference? Is there a suggestion that what Bertelsmann and Preller JJ warned against had taken place? Was there a breach of the independence of the office that he held, and interference with the fearless and unfettered exercise of the extensive powers that this office confers as the judges said? Is there a hint or suggestion that the NDPP might have lent an ear to politicians as the learned judges admonished? Was there political pressure, influence or persuasion of any sort as the Privy Council suggested in Sharma’s case?

188. In the press statement Mr Ngcuka states that he conducted the investigation ‘without any undue influence from the executive or any arm of our government.’ He should have said it was conducted without any influence whatsoever. I might interpolate to say that the prosecution policy and code of conduct emphasise very clearly that statements should not be made to the media before a prosecution is instituted. At the press conference, which was broadcast on national television, Mr Ngcuka then thanks a number of his staff and then says the following of and concerning Dr Maduna, who was present, at the press conference, sitting next to him:

‘More importantly, I want to extend my greatest appreciation to Dr Panuell (sic) Maduna, the Minister of Justice, for his unstinging support. Minister, you’ve once more demonstrated political leadership.’

189. Given that there should not be a hint or suggestion that the NDPP might have lent an ear to politicians he is here expressing his greatest appreciation to a politician for his ‘unstinging’ (sic) support. Perhaps he meant ‘unstinting’. Even if he meant the Minister was not stingy in his support – in other words very generous in the time and energy he spent on the matter, it is a startling statement, given the total independence the NDPP is supposed to exercise.

190. The comment that the Minister’s generous support demonstrated once more his political leadership leaves much to be desired. How does a decision to prosecute Mr Shaik and not the applicant provide a further demonstration of political leadership? Is the reason that he said this that the decision not to prosecute the applicant needed political evaluation and Mr Ngcuka learned from the advice of his leader? That seems to be the most plausible inference. The presence of the Minister at the press conference is otherwise inexplicable and seems to indicate a total lack of appreciation of the independence of the NPA.

191. I must conclude that the Minister gave generous amounts of his time and energy to the NDPP and political leadership in the long period leading up to the press conference. Laconic as these comments may be they certainly are not consonant with ‘the fearless and unfettered independent exercise of extensive powers’ referred to by the learned judges in the Yengeni matter. The comments certainly strengthen the inference that the decision not to prosecute the applicant was politically driven.

192. There is another disturbing feature in the decision to withdraw charges against Thint in the Shaik matter. Mr Du Plooy, the deponent to the opposing papers, filed on behalf of the NDPP, explains how the charges against Thint were withdrawn. He explains that Thint was accused no 11 in the Shaik trial and that some months prior to the trial date Thint approached Minister Maduna and indicated it wished to meet with him and Mr Ngcuka. These matters are not in dispute and curiously are volunteered by the respondent himself. It is not clear whether a physical meeting took place but that is the most plausible inference. Following on the approach to Mr Maduna some discussion must have taken place as two trips were made to Paris by Mr Ngcuka and Mr McCarthy but, apparently, to no avail. The political meddling, that the judges in Yengeni’s matter had been so critical of, was being repeated. At paragraph 35 of Du Plooy’s answering affidavit the following appears:

’35.1 In the latter half of 2003, an intermediary ostensibly acting for the Thint group contacted Minister Maduna and indicated that the group wished to meet with him and Mr Ngcuka. Pursuant to this approach, Mr Ngcuka traveled to Paris on two occasions in the second half of 2003 (Mr McCarthy accompanied Mr Ngcuka on one of these occasions). Nothing came of those discussions.

35.2 In early 2004, Mr Maduna was contacted by the legal representatives of Thint. Pursuant to this approach, a meeting was held at Mr Maduna’s house in April 2004 at which the Thint delegation indicated their willingness to co-operate with the prosecution. It was agreed that they would contact Mr Ngcuka’s office to discuss the terms of their co-operation.

35.3 On 19 April 2004 a meeting was held between Thint’s representatives on the one hand, and Mr Ngcuka and Mr McCarthy on the other. They concluded an agreement. Mr Ngcuka confirmed the agreement in a letter to Thint’s counsel later that day. The agreement was that, if Mr Thetard made an affidavit verily to the effect that he was the author of the encrypted fax, the NPA would, amongst other things, retract warrants for Mr Thetard’s arrest and withdraw the prosecution against Thint.

35.4 On 20 April 2004 Mr Thetard made an affidavit confirming that he was the author of the encrypted fax. On 4 May 2004 Mr Ngcuka confirmed that he would withdraw the charges against Thint on the date of the next appearance in the Shaik matter. Notwithstanding the fact that shortly afterwards Mr Thetard made a further, unsolicited affidavit evidently aimed at undermining his first affidavit, the NPA decided to keep its side of the bargain and the charges were withdrawn against Thint on 11 October 2004.’ (Emphasis added.)

193. What is clear from the respondent’s own papers is that the Minister had a meeting with Mr Ngcuka, the NDPP and representatives of an accused in the case. It is clear from the above that once the group spoke to the Minister he contacted Ngcuka who went to Paris on two occasions. What is clear is the Minister must have made his input into the offer and its consequences for the prosecution against Shaik. This fax was of course crucial in the future case against the applicant. The fax must have been the subject of discussions in Paris.

194. We know that in early 2004, Mr Maduna was contacted by the legal representatives of Thint and a meeting was held at his house. The Thint delegation indicated their willingness to co-operate with the prosecution. An agreement was reached at this meeting at which the minister was present. The terms were that Thint would cooperate and Mr Thetard would make an affidavit to the effect that he was the author of the encrypted fax. In return for this cooperation the NPA would withdraw the charges.

195. Clearly the Minister and Mr Ngcuka were using the oldest device in the ancient art of prosecution - to continue the angling metaphor of Sachs J in the Constitutional Court - using a sprat to catch a mackerel. So long as Thint (the sprat) agreed to agree that it wrote the fax then the prosecution could then catch Shaik (the mackerel). The applicant maintains that the ultimate objective of the strategy was to prosecute Shaik and, when he was convicted, fire the applicant. I have explained why he regarded that as unjust given that the NDPP had never had the courage to charge him and give him a chance to defend himself. So the applicant maintains that he was the big fish - if one were to continue this dubious metaphor - as the deputy president of the country and rival of the President in the race for the presidency of the ANC. These contentions fall into the series of allegations the respondent wishes to strike out of applicant’s affidavit.

196. Put at its very lowest Mr Maduna seems to have played a not insignificant part in the planning of the strategy in question, whatever its end objective might be. Given the constitutional imperative for the NDPP to be totally independent, and decide without fear or favour it was a most regrettable occurrence, in the light of the fact that it also constituted a serious criminal offence.

197. Is there any evidence that political interference has continued? Annexed to the Respondent’s answering affidavit in this matter is a supporting affidavit by Mr Pikoli, put up in the adjournment and permanent stay applications before Msimang J, in which he says the following:

’30. It is denied that the prosecution has not approached the Presidency about the matter [the arms deal enquiry]. The NPA and the prosecution team have in fact been engaging with the Director- General in the Presidency in this regard since February 2006.’

198. This paragraph is in response to paragraphs 29 and 30 of the applicant’s founding affidavit, in the proceedings before Msimang J, in which he sets out what role the President played in the arms deal acquisition process. The applicant does not suggest that the President was guilty of any corruption but suggests that the President is in possession of sufficient knowledge to clear the applicant.

199. Other documents filed include admissions by the NPA, through its spokesman Makhosini Nkosi, made on 9 July 2006 that the President has never been the subject of investigation, as that was never warranted, as there was no evidence of impropriety by him. The meetings with the Director-General in the Presidency could not, therefore, have been about the President’s involvement. Nor is there any suggestion that any crimes in connection with the arms deal were committed in the office of the President. The ongoing meetings could only relate to the complicity of the present applicant. These consultations with the office of the Presidency on the implied ongoing basis from February 2006 are also cause for concern given the constitutional imperative of independence.

200. There is one further matter to be considered, which the applicant alleges provide proof that there was a political influence, pressure or persuasion to prosecute him during December 2007 when Mr Mpshe was at the helm of the NPA. The applicant says that ‘It is also pointed out that the NPA during 2007 reviewed various cases including that of Commissioner J Selebi. I annex hereto newspaper reports reflecting this.’

201. In an article by Mr Sam Sole, dated 5 October 2007 in the Mail and Guardian, annexed to the papers, mention is made of certain warrants of search and arrest issued against Mr Selebi. The warrants had not been executed and Mr Pikoli contacted the President who instructed the Minister of Justice to write to Mr Pikoli. The article says the following:

‘She did so, apparently demanding access to the Selebi docket and seeking to circumscribe Pikoli’s prerogative to make a decision. Pikoli replied, asserting that prerogative and warning the Minister over her attempt to interfere. That prompted Mbeki to suspend Pikoli on September 23. On September 28, the acting national director of Public Prosecutions, Mokotedi Mpshe, applied successfully to have the arrest warrant cancelled. He later revealed that the Selebi case is the only one that is being ‘reviewed’ by him. The inescapable conclusion is that this is as a result of Mbeki’s intervention… we can only conclude that the difference between the two cases is that the decision on Zuma was politically palatable to Mbeki whereas the decision on Selebi was not.’

202. The respondent states in reply that the paragraph is disputed. He goes on to say

‘It is incorrect that Mpshe reviewed “various cases including that of Commissioner J Selebi”. In fact he reviewed only Selebi’s case, at the request of the Minister of Justice. Once again, the applicant bases his assertions on unsubstantiated and inaccurate press reports.’

203. The only other response by the respondent is to be found earlier in the answering affidavit, at paragraph 89.

‘89. Between the hearing on 27 to 29 August 2007 of the appeals in the SCA concerning the August 2005 searches and seizures and the handing down of the SCA’s judgments on those appeals on 8 November 2007, the President suspended Mr Pikoli as NDPP, stating that there had been an irretrievable breakdown in the working relationship between Mr Pikoli and the Minister of Justice and Constitutional Development, Ms Brigitte Mabandla. The President appointed Mr Mpshe as the acting NDPP.’

204. An affidavit is put up by Mr Pikoli but nowhere does he deal with the allegations in the article by Mr Sole. The applicant knew little or nothing of these goings on and put up the best evidence he could find. Mr Pikoli was the NDPP and must have known the answers to these allegations. By law he is supposed to admit or deny or confess and avoid these allegations or face the prospect of the court accepting the allegations as correct. See Moosa v Knox 1949 3 SA 327 N at 331.

205. From the above it is clear that there is no attempt by Mr Pikoli to deal with the allegation of the blatant interference by the Minister and the fact that Mr Pikoli asserted his rights of independence. There is no refutation that the Selebi warrants were cancelled by Mr Mpshe after political interference and that Pikoli was suspended because he refused to do so. There is an admission that Mpshe reviewed only Selebi’s case, at the request of the Minister of Justice. The other admission relates to the fact that the President suspended Mr Pikoli as NDPP, stating that there had been an irretrievable breakdown in the working relationship between Mr Pikoli and the Minister.

206. At the level of the most plausible inference, in the absence of any other competing one, it must be inferred that there was again political interference at the very time Mr Mpshe was contemplating charging the applicant. Mr Pikoli does not deal with the allegation that the issuing of the warrants against Selebi was not palatable to the President but the decision to prosecute the applicant was.

207. The NDPP states unequivocally that the NDPP Mr Pikoli was suspended by the President because of a breakdown in his relationship with the Minister of Justice. There should be no relationship with the Minister of Justice – certainly insofar as his decisions to prosecute or not to prosecute anybody from the Commissioner of Police downwards. All that is clear from the Constitution, the NPA Act and the various prosecution policies, directives and codes of conduct. The suspension of the National Director was a most ominous move that struck at the core of a crucial State institution. Of importance to the applicant was the fact that Pikoli’s replacement, Mr Mpshe, who had to decide his fate, must have realized that to disobey the executive would in all probability ensure his own professional demise.

208. The trial of the applicant was not proceeded with before Msimang J and struck off the roll on 20 September 2006. The judge in that matter made serious comments about the manner in which the NDPP was dealing with the matter. I have dealt with the bilateral nature of corruption and the inexplicable decision not to prosecute the applicant in August 2003. It is very difficult to understand why the State did not proceed against the applicant on the evidence they had, given that it had resulted in a fifteen year sentence for Shaik.

209. The applicant states in his founding affidavit that after all these proceedings he and those who wished him to occupy a leadership role in the ANC ‘were concerned about the criminal charges being re-launched at all and moreover being launched at a critical time in the political process’. He goes further and suggests that this was a stratagem to cloak him in the guise of an accused at the critical moments in the political process and so hamper his election as ANC President. There does seem to be merit in that contention. I am therefore not inclined to strike out these allegations.

210. The timing of the indictment by Mr Mpshe on 28 December 2007, after the President suffered a political defeat at Polokwane was most unfortunate. This factor, together with the suspension of Mr Pikoli, who was supposed to be independent and immune from executive interference, persuade me that the most plausible inference is that the baleful political influence was continuing. If the NDPP is to be totally independent and perform his functions without fear and favour he should not be liable to suspension by the executive at any given moment.

211. In the decision of the Privy Council of the House of Lords in England in Grant v DPP [1982] AC 190 at 201 Lord Diplock said of the Jamaican Constitution

‘The office of the Director of Public Prosecutions was a public office newly-created by section 94 of the Constitution. His security of tenure and independence from political influence is assured. In the exercise of his functions, which include instituting and undertaking criminal prosecutions, he is not subject to the direction or control of any other person.’

212. I might interpolate to say that it seems to me that the only way to ensure the independence of the NDPP is to make his appointment and dismissal on the same conditions as that of a judge. If his security of tenure and independence is not assured and he can he suspended by the executive, the whole legal process is in serious jeopardy.

213. What Mr Maduna and his successor Miss Mabandla did is also the responsibility of the President and his whole cabinet. The most renowned definition of collective responsibility of the Cabinet appears in LAWSA Second Edition, volume 5(3), title Constitutional Law, paragraph 227 where Lord Salisbury is quoted as saying:

‘For all that passes in Cabinet every member of it who does not resign is absolutely and irretrievably responsible and has no right afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by his colleagues . . . It is only on the principle that absolute responsibility is undertaken by every member of the Cabinet, who after a decision is arrived at, remains a member of it, that the joint responsibility of Ministers to Parliament can be upheld and one of the most essential principles of parliamentary responsibility established.’

214. In terms of the Constitution of the Republic of SA 108 of 1996 s 92(2) Cabinet ministers are also accountable, collectively and individually, to Parliament for the exercise of their powers and performance of their functions. Is it possible that the Mr Maduna was on a frolic of his own or acting on instructions? It seems very improbable that in so important a matter as one involving the Deputy President (his political superior) a mere minister would get involved without the President knowing and agreeing.

215. The allegations of corruption affected not only the government but the party and the whole country. Given the keen competition between the applicant and the president for the leadership is it conceivable that the president did not know? The President is after all the only person who can dismiss the Deputy President in terms of the Constitution. In terms of sub-sections 96(3)(4) and (5), added by annexure B to Schedule 6 of the Constitution, Ministers are accountable individually to the president and to the National Assembly for the administration of their portfolios. In terms of the Constitution all members of the Cabinet are correspondingly accountable collectively for the performance of the functions of national government and its policies. Furthermore, ministers must administer their portfolios in accordance with the policy determined by the Cabinet. However, should it happen that a minister fails to administer the portfolio in accordance with the policy of the Cabinet, the president may require the minister concerned to bring the administration of the portfolio into conformity with that policy.

216. It seems to me that in terms of the law, more especially emanating from the Constitution, there is responsibility attributable to the President and his cabinet for what Mr Maduna did. This would, of necessity, also apply to what Ms Mabandla did. I am therefore not convinced that the applicant was incorrect in averring political meddling in his prosecution. I will deal with the consequences of this on the striking out applications later in the judgment.

217. If there was political interference in the earlier decision not to prosecute the applicant and in all probability the later one to prosecute him what does one make of the offer of the NDPP that the applicant can make representations at any time about the investigation or prosecution? It seems to me that if he was afforded the chance to make representations at any time for any reason, it would be the duty of NDPP as he expressed it to consider these.

218. The applicant expresses this as follows, after explaining that there was no new evidence, at the time Mr Pikoli decided to prosecute him. At paragraph 73 he says

’73. It is in this context that the NDPP’s failure to comply with the provisions of section 179(5) must be considered. Where such extraneous factors as the politics of the day and a change in decision without any new evidence are present, there is indeed an obligation to be extra vigilant in ensuring compliance with Section 179(5) to the fullest extent. And if there is new evidence, surely one seeks an explanation from the person to be charged in these circumstances.’

219. Given the political entanglements and machinations in the whole matter of the applicant’s prosecution, there does seem to be merit in this submission. This would apply more especially if the political thinking changed and consideration was to be given to charging him.

220. There is a distressing pattern in the behaviour which I have set out above indicative of political interference, pressure or influence. It commences with the ‘political leadership’ given by Minister Maduna to Mr Ngcuka, when he declined to prosecute the applicant, to his communications and meetings with Thint representatives and the other matters to which I have alluded. Given the rules of evidence the court is forced to accept the inference which is the least favourable to the party’s cause who had peculiar knowledge of the true facts. It is certainly more egregious than the ‘hint or suggestion’ of political interference referred to in the Yengeni matter. It is a matter of grave concern that this process has taken place in the new South Africa given the ravages it caused under the Apartheid order.

221. In the Yengeni matter the judges went on to emphasise the importance of the independence of the prosecuting authority when they stated at paragraph [52]

‘The independence of the Judiciary is directly related to, and depends upon, the independence of the legal professions of the [NDPP]. Undermining this freedom from outside influence would lead to the entire legal process, including the functioning of the Judiciary, being held hostage to those interests that might be threatened by a fearless, committed and independent search for the truth.’

222. There is a contradiction between Mr Mpshe and Mr Tlali as to whether the applicant’s case was under review. After Msimang J struck the matter off the roll the NDPP had to make up his mind whether to charge the applicant afresh. Whichever version is accepted – in other words, irrespective of whether there was to be a review of the applicant’s case - that was a decision the NDPP had to make. When he made it he told the applicant that he would not hear any of his representations.

223. What weight can be given to his promise to listen to all representations at the press conference held by Mr Ngcuka? It is also clear that the respondent always acknowledged the applicant’s right to make representations. At paragraphs 154.2 and 164 respondent says

‘154.2 The applicant has in any event had ample opportunity to make representations on the decision to prosecute him since it was taken. He could have made these representations to Pikoli who took the decision to prosecute him. He could moreover more recently have made the representations to the NPA either before or after the current decision to reinstitute charges. He required no invitation to make such representations…’

‘164… Any accused person, and indeed any suspect, is free to make representations to the NPA regarding a pending or anticipated prosecution. The applicant, represented as he is by senior and experienced counsel, must be well aware of this.’

224. In the light of these statements it is most strange and disturbing that Mr Mpshe shut the door on the applicant making any such representations. In my view the promise at the press conference was binding on the NDPP on two scores. Firstly, because it was an invitation to the applicant to make representations and he acquired a legitimate expectation to make them pursuant to the promise. Secondly, the NDPP told the applicant and the world at large that he was duty bound to consider any such representations in terms of section 22(4)(c). It is reinforced by the subsequent attitude.

225. The NDPP is a very important appointment. If his word is worth nothing then our National Prosecuting Authority is in peril. In Wronsky and another v Attorney-General 1971 (3) SA 292 (SWA) the applicants had applied for an order directing the respondent in terms of section 14 of Ordinance 34 of 1963 (S.W.A.) to decide immediately whether or not he refuses to prosecute certain persons; and in the event of his refusal to immediately furnish a certificate nolle prosequi. The respondent had stated that he had not yet decided as he wished to study further statements before he decided. It was not alleged that he had acted mala fide.

226. It was held, that the application should be refused. Hoexter J (as he then was) held that where mala fides was neither alleged nor proved the court had no reason to doubt the allegations of the attorney-general that he was not in any position to make a decision. The court held at pages 294-5 that it was obliged to take into account what it termed ‘the elevated position of the attorney-general’.

227. The court approved a dictum by Acting Judge President Watermeyer to the effect that the attorney-general ‘is the highest official in charge of prosecutions and the Court is bound to place great reliance and great trust in what he says.’ See Heller v Attorney-General 1932 CPD 102 at page 104.

228. It seems clear that the applicant was entitled to place great reliance and trust in what Mr Ngcuka said in inviting representations at the press conference.

229. Because of the political meddling I am of the view that the respondent did not maintain his independence and was not in a proper position to carry out his duties to honour the promise to hear representations or to respond properly to the request to receive representations. I am not saying the political meddling is a sufficient ground on its own to secure the relief at all. That was not an issue as such in this application. What I mean is that it was legitimate of the applicant to place it before the court to evaluate his right to make representations.

230. I am of the view that the applicant had a legitimate expectation that his representations be heard by Mr Pikoli in the first instance and Mr Mpshe especially after the promise at the press conference and the letter requesting an opportunity to make such representations.

231. For this additional reason I believe the NDPP ought to have heard the applicant’s representations.

232. It is interesting that in the Sharma judgment to which I have referred extensively earlier on the Deputy DPP did invite representations from the Chief Justice in that case.

‘On 2 June she supplied the Chief Justice with a summary of the allegations being investigated and told his legal representative that she would consider any representations he might think it necessary to make. Such representations were submitted to her in writing on 23 June.’

233. I might add in conclusion on this point that I wonder at the wisdom of the respondent in not hearing the applicant’s representations, when he asked to make them. That would certainly have allowed the matter to proceed more speedily. There are many complaints and recriminations about procrastination in this matter. The constitutional court has spoken about the undesirability of points taken to delay matters. The courts have over the years said much the same.

234. In Le Grand (t/a Jeannes) v Carmelu (Pvt) Ltd (t/a Lynwood Fashions) 1980 (1) SA 240 (ZRA) MacDonald CJ at 242D - G said the following

‘The civil courts in common with the criminal courts exist to do justice and not to provide some practitioners with a forum in which, relying upon technical and wholly academic points, to attempt to prevent a court adjudicating upon the real issues.’

235. The respondent complains that the applicant keeps preventing the matter from proceeding to trial. It must always be borne in mind that the State decided not to prosecute the applicant in the Shaik matter five years ago on 23 August 2003, in the peculiar circumstances I have mentioned. That was after an exhaustive two year investigation, interviewing hundreds of witnesses in several countries and at great cost no doubt to the taxpayer. More than two years ago the State asked for an adjournment for the criminal trial against the applicant, which was correctly refused by Msimang J. So all the blame for delays is not to be attributed to the applicant.

236. It was said with commendable clarity and forthrightness in R v Hepworth 1928 AD 265 at 277 that:

'A criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and a judge's position in a criminal trial is not merely that of an umpire to see that the rules of the game are observed by both sides. A judge is an administrator of justice, he is not merely a figure head, he has not only to direct and control the proceedings according to recognised rules of procedure but to see that justice is done.'

237. The court has gained the impression that all the machinations to which I have alluded form part of some great political contest or game. For years the applicant is under threat of prosecution for serious corruption and yet never brought to trial. There is a ring of the works of Kafka about this. In addition I have mentioned the applicant’s threats of disclosure should he go down.

The applications to strike out

238. As I have mentioned the respondent and applicant have both brought applications to strike out allegedly offensive material in the affidavits of their opponents. The material in applicant’s founding papers, apart from excessive biographical material, which is really of no great moment, relates to his allegations of political meddling in his investigation and prosecution. The material concerning his tax charges flows from this allegation and must be considered with it. As appears from the above findings I am satisfied that political meddling cannot be excluded and I am of the judgment that it existed to a sufficiently egregious degree that it justified inclusion in the papers.

239. Put differently, if the applicant was not prosecuted for what appears to be some ulterior political motive, when he became entitled to make representations, he needed to know what had changed in the political thinking or circumstances that justified the new decision to prosecute him. The applicant needed to know why he was not prosecuted in a bilateral offence to understand why he was now being prosecuted.

240. I am of the view that the respondent’s application to strike out must be dismissed with costs.

241. The applicant’s striking out motion is aimed at allegations that his attacks on the political meddling in the prosecution were made without foundation and were scandalous and vexatious. As I have found they were relevant to establish the background and the basis for the first decision not to prosecute, the applicant was not prohibited from raising them. The respondent was not then entitled to attack the applicant and his legal team and their bona fides in including them. The applicant’s striking out application must be granted with costs.

The delay

242. It seems clear to me that the applicant cannot attack the Pikoli decision to prosecute him as that indictment became a nullity once Msimang J struck the matter off the roll. This was the view of the Constitutional Court in the letter of request appeal under case no CCT 90/07 where it said

[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 enrolled, it would start anew.’

243. The decision by Mr Mpshe to prosecute the applicant was therefore the reversal of the decision of Mr Ngcuka not to prosecute him. As PAJA is applicable the applicant was obliged to bring the application for review within six months and he has done so. Even if it is not applicable he was required to bring his application within a reasonable time. It seems to me that he has fulfilled that requirement. See Wolgroeiers Afslaers (Edms) Beperk v Munisipaliteit van Kaapstad 1978(1) SA 13 (AD).

244. The question remains whether all the charges should be declared to be invalid. At some levels the respondent has thrown the book at the applicant, so to speak, by including charges relating to tax evasion etc. These related to payments he had allegedly received from Mr Shaik or his companies and which should have been included in his tax return as gifts (bribes). Some of the payments would also date after the initial decision not to charge him. At some levels they are all interrelated and it does not seem to make practical sense to attempt some sort of severance exercise. In any event the offer to hear his representations probably covered any charges to be brought against him should the respondent decide to charge him.

The question of costs

245. As I have found these to be civil proceedings costs must follow the event. I am not inclined to grant attorney and client costs in any of the applications before me. In the main application I am of view that the costs of three counsel are justified. In the other applications relating to the striking out and admission of the Amicus Curiae I believe one counsel of junior status would have been sufficient.

246. I must repeat that this application has nothing to do with the guilt or otherwise of the applicant. It deals only with a procedural point relating to his right to make representations before the respondent makes a decision on whether to charge him again. Once these matters are cured the State is at liberty to proceed again against the applicant, subject to any further proceedings he may bring.

247. I therefore grant the following orders:

1. It is declared that the decision taken by the National Prosecuting Authority during or about 28 December 2007 to prosecute the applicant, a copy of which is annexed to the applicant’s founding affidavit as annexure “A” thereto is invalid and is set aside.

2. The respondent is ordered to pay the applicant’s costs of suit including those consequent upon the employment of three counsel.

3. On the respondent’s application to strike out certain paragraphs of applicant’s founding affidavit I make the following order:

‘The application is dismissed with costs.’

4. On the applicant’s application to strike out certain paragraphs of the respondent’s answering affidavit I make the following order:

‘The application is granted with costs.’

5. On the application of the Amicus Curiae, I make the following order:

‘aa. The application to join as an Amicus Curiae is refused.

bb. The applicant in the Amicus Curiae application is ordered to pay the respondent’s costs, incurred in opposing that application.’

_____

SCA 537/0 NDPP vs. Zuma, JA Harms

NOTE: the footnotes to these judgements have not copied across see full judgement.

http://www.supremecourtofappeal.gov.za/judgments/judgem_sca_2009.html,

THE SUPREME COURT OF APPEAL

REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 573/08

NATIONAL DIRECTOR OF

PUBLIC PROSECUTIONS Appellant

and

JACOB GEDLEYIHLEKISA ZUMA Respondent

(THABO MVUYELWA MBEKI and GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA intervening)

Neutral citation: National Director of Public Prosecutions v Zuma (573/08) [2009] ZASCA 1 (12 Jan 2009)

Coram: HARMS DP, FARLAM, PONNAN, MAYA AND CACHALIA JJA

Heard: 28 NOVEMBER 2008

Delivered: 12 JANUARY 2009

Updated:

Summary: (1) Criminal procedure – setting aside of indictment – s 179 of the Constitution – consultation by National Director of Public Prosecutions when reviewing a prosecutorial decision with accused. (2) Civil procedure – principles of deciding factual issues in motion proceedings restated. (3) Judiciary – the limits of judicial decision-making restated.

ORDER

On appeal from: High Court, Pietermaritzburg (Nicholson J sitting as court of first instance).

A The appeal is upheld with costs including the costs of three counsel.

B Paragraphs 1 to 4 of the order of the court below are set aside and replaced with the following:

‘1 The application is dismissed.

2 The applicant is to pay the respondent’s costs of suit including those consequent upon the employment of three counsel.

3 On the respondent’s application to strike out, the applicant is ordered to pay the costs on the attorney and client scale.

4 The applicant’s application to strike out is dismissed with costs on the attorney and client scale.’

C The application to intervene is dismissed.

JUDGMENT

HARMS DP (FARLAM, PONNAN, MAYA and CACHALIA JJA concurring):

INTRODUCTION

[1] This is an appeal against a judgment of Nicholson J, in which he set aside a decision by the National Director of Public Prosecutions (the NDPP) to indict the respondent, Mr Jacob G Zuma.¹ The appeal by the NDPP is with the leave of the court below. Mr Thabo M Mbeki (until recently the President of the country) and the Government of the RSA sought leave to intervene in the appeal on the ground that they have an interest in the appeal since many findings of the court below impinged on them negatively and they wish to have the record set straight.

[2] The litigation between the NDPP and Mr Zuma has a long and troubled history and the law reports are replete with judgments dealing with the matter.² It is accordingly unnecessary to say much by way of introduction and a brief summary will suffice.

[3] Mr Zuma was appointed as Deputy President of the RSA on 19 June 1999. He was, however, dismissed by Mr Mbeki during June 2005. During December 2007, he became the president of the governing political party, the African National Congress (the ANC), at the expense of Mr Mbeki, the incumbent and only other candidate for that position. It is common knowledge that subsequent to the judgment of the court below Mr Mbeki resigned as President of the country and that Mr Zuma is said to be the ANC’s candidate for that post after the 2009 general election. Mr Zuma regards the indictment as an impediment to his political future and the present case is an attempt by him to seek, on procedural grounds, closure of the criminal proceedings.

[4] On 23 August 2003, Mr Bulelani Ngcuka, the then NDPP, announced his intention to indict a certain Mr Schabir Shaik on two counts of corruption, but stated that he would not indict Mr Zuma, who was said to have been the recipient of alleged corrupt payments from Mr Shaik. I shall revert to the detail of the announcement, to which I shall refer as the Ngcuka decision. Mr Shaik was convicted and sentenced during June 2005,³ and Mr Zuma, who was implicated in the judgment, was dismissed by Mr Mbeki from the position of Deputy President as a consequence, not (as Mr Mbeki said) because he was guilty but (as Mr Mbeki implied) on the theory that Caesar’s wife should be above reproach.⁴

[5] A few days later, on 20 June, the newly appointed NDPP, Mr Vusi Pikoli, announced his decision to indict Mr Zuma. (This decision will be referred to as the Pikoli decision.) The matter came before Msimang J on 31 July 2006 for trial on two corruption counts which mirrored the two Shaik corruption counts. The prosecution applied for a postponement to complete its investigations and finalise the indictment. Msimang J refused the postponement and called on the prosecution to proceed with the trial. When the prosecution indicated that it was not ready to do so, he struck the matter from the roll.

[6] Mr Pikoli had in the interim been suspended by Mr Mbeki on an unrelated matter, and Mr Mokotedi Joseph Mpshe, the acting NDPP, decided on 27 December 2007 once again to indict Mr Zuma (herein called the Mpshe decision). That decision was followed by an indictment of 87 pages with 18 main counts of racketeering, corruption, money laundering, tax evasion and fraud. Much was based on the same subject matter that was dealt with in the Shaik trial but, according to the NDPP, the facts and circumstances differed materially because the evidence against Mr Zuma had become more compelling and the legal impediments to charging him had been reduced.

[7] In the application, which is the subject of this appeal, Mr Zuma sought an order declaring that both the Pikoli and the Mpshe decisions were invalid and, consequently, they were to be set aside. Nicholson J obliged by setting aside the latter decision (the former having lapsed). This brought the prosecution to an end – at least for the time being.

THE SCOPE OF THE CASE

[8] It would be naïve to pretend that we are oblivious to the fact that Nicholson J’s judgment has had far-reaching political consequences and that there may be an attempt to employ this judgment to score political points. It is accordingly necessary to state at the outset what the case is about as opposed to what it is not about. An applicant is required to set out his case in the founding affidavit. This Mr Zuma did. He asserted that his case for the setting aside of the two decisions to prosecute him was premised on two bases, something he confirmed in his replying affidavit.

[9] He relied in the main on s 179(5)(d) of the Constitution,⁵ which s 22(2)(c) of the National Prosecuting Authority Act 32 of 1998 (the NPA Act) repeats. It provides in summary that the NDPP may ‘review’ a decision to prosecute or not to prosecute, after consulting the ‘relevant’ Director of Public Prosecutions (the DPP) and after taking representations from the accused, the complainant and any other relevant person. His case in this regard was simple: the Pikoli and Mpshe decisions to prosecute amounted in each instance to a review of the Ngcuka decision not to prosecute him; they were made without his having been invited to make representations in fulfilment of a constitutional requirement and they were, consequently, invalid. It matters not that he was able, if he so desired, to make representations – his complaint was that he had to be invited to make them.

[10] The second and alternative ground on which he relied was that he had a legitimate expectation to be invited to make representations before any decision was taken to change the Ngcuka decision. In this regard he relied principally on s 33 of the Constitution, which deals with just administrative action. The expectation, according to the founding affidavit, arose from the content of Mr Ngcuka’s press release when he announced his decision not to prosecute him and from some other non-contentious facts that will be detailed in due course.

[11] From this it is apparent that Mr Zuma’s case depended, as far as the first ground is concerned, on an interpretation of the Constitution.⁶ In regard to the second it depended in essence on whether s 33 of the Constitution applied and, if so, on the meaning of the Ngcuka press statement. (The ultimate argument was somewhat different but does not affect the general purport of the point now under discussion.) These are all legal issues based on common cause facts.

[12] Mr Zuma made it abundantly clear that he did not wish to impugn the decisions themselves, and that his application was not concerned with the reasons and motives for the decisions: it related only to the procedural requirements for making them. He implied that he might attack the merits of the decisions in separate proceedings. In spite of this explicit statement of intent, Mr Zuma introduced a large number of facts that related to the merits of the decisions. The NDPP contended that they were irrelevant.

[13] It follows from this that, as the trial judge recognised, ‘political meddling’ was not an issue that had to be determined (para 229 of his judgment). Nevertheless, a substantial part of his judgment dealt with this question; and in the course of this discussion he changed the rules of the game, took his eyes off the ball and red-carded not only players but also spectators. Lest his judgment be considered authoritative it will be necessary to deal with these matters.

[14] However, it must be understood that this aspect of the judgment is not about the guilt or otherwise of Mr Zuma or whether the decision to prosecute him was justified. It is even less about who should be the president of the ANC; whether the decision of the ANC to ask Mr Mbeki to resign was warranted; or who should be the ANC’s candidate for President in 2009. More particularly, this aspect of the judgment is not about whether there was political meddling in the decision-making process. It is about whether the findings relating to political meddling were appropriate or could be justified on the papers.

THE JUDICIAL FUNCTION

[15] It is crucial to provide an exposition of the functions of a judicial officer because, for reasons that are impossible to fathom, the court below failed to adhere to some basic tenets, in particular that in exercising the judicial function judges are themselves constrained by the law. The underlying theme of the court’s judgment was that the judiciary is independent; that judges are no respecters of persons; and that they stand between the subject and any attempted encroachments on liberties by the executive (para 161-162).⁷ This commendable approach was unfortunately subverted by a failure to confine the judgment to the issues before the court; by deciding matters that were not germane or relevant; by creating new factual issues; by making gratuitous findings against persons who were not called upon to defend themselves; by failing to distinguish between allegation, fact and suspicion; and by transgressing the proper boundaries between judicial, executive and legislative functions.

[16] Judges as members of civil society are entitled to hold views about issues of the day and they may express their views provided they do not compromise their judicial office. But they are not entitled to inject their personal views into judgments or express their political preferences. To illustrate the point I intend to refer to some instances where the court below in my view overstepped the limits of its authority.

[17] The ‘Society for the Protection of our Constitution’ sought to be admitted as amicus curiae, asking for an order which the court below charitably interpreted as one for the appointment of a commission of inquiry into the alleged violation of Mr Zuma’s constitutional rights. The court found, quite rightly, that it was beyond its competence to make such an order, but it then proceeded to add at length that a commission of inquiry into the so-called arms deal, which gave rise to some of the criminal allegations against Mr Zuma, should be appointed ‘to rid our land of this cancer that is devouring the body politic’ (para 33). Whether or not one agrees with these sentiments is beside the point. The point is that those personal sentiments concerning a political decision were, in the context of the judgment, unwarranted.

[18] Then there is its criticism concerning two of Mr Mbeki’s decisions. The first concerns his dismissal of Mr Zuma as Deputy President in terms of s 91(2) of the Constitution (para 155-158). The second relates to his decision to stand for re-election as president of the ANC with the knowledge that he could not serve another term as President of the country (para 171-173). The propriety and legitimacy of Mr Mbeki’s decisions were not issues in the case and he was never called upon to justify them. These matters are also not matters of law – they relate to purely political questions and, once again, whether or not one agrees with the learned judge’s sentiments is of no consequence: the findings were gratuitous.⁸

[19] The independence of the judiciary depends on the judiciary’s respect for the limits of its powers. Even if, in the words of the learned judge, the judiciary forms a ‘secular priesthood’ (para 161) this does not mean that it is entitled to pontificate or be judgemental especially about those who have not been called upon to defend themselves – as said, its function is to adjudicate the issues between the parties to the litigation and not extraneous issues.

JUDGING FACTS IN MOTION PROCEEDINGS

[20] I have already mentioned that the issues in this case are primarily legal and based on common cause facts but that is not how the court below approached the case. Instead it applied a novel approach to motion proceedings which, if left undisturbed, may serve as a dangerous precedent.

[21] Benevolently interpreted it would appear that the court, in the context of a striking out application brought by the NDPP, sought to determine whether the NDPP was influenced by the executive in deciding to prosecute.⁹

[22] The rule of court in question states that a court may strike out allegations from an affidavit that are ‘scandalous, vexatious or irrelevant’ provided the objecting party will be prejudiced if the allegations are not struck out (Uniform Rule r 6(15)). At this juncture it suffices to deal with the objection to allegations that are said to be irrelevant. The passages in Mr Zuma’s affidavit to which the NDPP objected dealt in the main with his allegations concerning a political conspiracy to prosecute him.

[23] The test for irrelevance is whether the allegations do not apply to the matter in hand or do not contribute one way or another to a decision of that matter.¹⁰ Inadmissible evidence is by its very nature irrelevant.¹¹ Mr Zuma said that he introduced the allegations to show that the decision not to ask for his representations was deliberate and politically motivated. Whether the failure to provide him with a hearing was deliberate or politically motivated has nothing to do with his causes of action. He was, as a matter of law, either entitled to a hearing or he was not. If he was entitled to one, the reason for the failure to afford him one is completely immaterial.

[24] The court below did not decide whether the allegations were relevant or not. Instead it sought to determine whether the allegations were ‘offensive because they insinuate that there is political meddling’ (para 41). To do that, it looked at the ‘merits’ (para 43), that is, whether there was merit in the allegations (para 238). The court accordingly analysed the allegations (and some of its own suppositions) to determine what factual ‘inference’ it could draw (para 191); what ‘the most plausible inference’ was (para 191, 206); and what ‘seemed’ to have happened (para 196, 209). It found that it ‘was not convinced that [Mr Zuma] was incorrect’ (para 216), and that political meddling could not be excluded (para 238).

[25] The court erred in its approach to striking out applications. It is correct that relevance has to be tested with reference to the merits of the case but that does not mean that relevance depends on the factual merit of the impugned allegations.¹² Whether they are true or not is of no moment; their relevance to the merits of the case is what is of consequence. As mentioned, the court did not consider this question.

[26] Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities. It is well established under the Plascon-Evans rule that where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant's (Mr Zuma’s) affidavits, which have been admitted by the respondent (the NDPP), together with the facts alleged by the latter, justify such order. It may be different if the respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers.¹³ The court below did not have regard to these propositions and instead decided the case on probabilities without rejecting the NDPP’s version.¹⁴

[27] The court below imposed an onus on the NDPP to prove a negative. This appears from the finding that it ‘was not convinced that [Mr Zuma] was incorrect’ in relation to political meddling (para 216). It reasoned that the question whether there had been political meddling fell within the peculiar knowledge of the NDPP and was difficult for Mr Zuma to prove; and so, it held, less evidence would suffice to establish a prima facie case (para 168-169).¹⁵ This rule of evidence, namely that if the facts are peculiarly within the knowledge of a defendant the plaintiff needs less evidence to establish a prima facie case, applies to trials. In motion proceedings the question of onus does not arise and the approach set out in the preceding paragraph governs irrespective of where the legal or evidential onus lies.¹⁶ In applying the ‘rule’ the court omitted to determine whether the NDPP had failed to adduce evidence on the particular issues; it used the ‘rule’ in spite of evidence to the contrary; and it did so in instances where no answer was called for because the allegations were either not incorporated into the founding affidavit or were inadmissible. Finally, the court failed to have regard to another principle, namely that the more serious the allegation or its consequences, the stronger must be the evidence before a court will find the allegation established.¹⁷

INDEPENDENCE OF THE NPA¹⁸

[28] Although it is generally accepted that any prosecution authority ought to be free from executive or political control, this was and is not necessarily the norm in Anglo-American countries. It depends on the position of the Attorney-General who, in many countries, is a political appointee – often at ministerial level. Nevertheless, an Attorney-General is required by convention to make prosecutorial decisions without regard to political considerations and may not subject his discretionary authority to that of government. He is also not responsible to government to justify the exercise of his discretion because this political office has judicial attributes.¹⁹

[29] Locally the pre-Union position was exemplified by Ordinance 1 of 1903 (T), which provided that the right and power of prosecution was ‘absolutely under [the Attorney-General’s] own management and control’ (s 6). At the time the Attorney-General was a cabinet minister.²⁰ The South Africa Act of 1909 had a similar provision (s 139) but the difference was that since Union Attorneys-General were civil servants.²¹ The position changed in 1926 when all powers, authorities and functions relating to the prosecution of crimes and offences were vested in the Minister.²² However, in terms of a notice published at the time in the Government Gazette the decision to prosecute or not to prosecute remained with the Attorneys-General and the Minister exercised an appeal or review function only.²³ As from 1935, Attorneys-General had to exercise their authority and perform their functions under the Criminal Procedure Act subject to the control and directions of the Minister who could reverse any decision.²⁴ The convention, apparently, remained as set out in the mentioned government notice.²⁵

[30] The independence of the Attorneys-General’s decision-making concerning prosecutions was reinstated by the Attorney-General Act 92 of 1992 although the Minister had to co-ordinate their functions and could request them for information or a report on any matter, and they had to submit annual reports to him (s 5). The interim Constitution also recognised that the authority to institute criminal proceedings vested in the Attorneys-General.²⁶

[31] Section 179 of the Constitution²⁷ creates a single national prosecuting authority (the NPA) consisting of a National Director, who is head of the prosecuting authority and a political appointee, and also DPPs and prosecutors. The NPA has the power to institute criminal proceedings on behalf of the State and to carry out any necessary functions incidental thereto. Although national legislation must ensure that the NPA exercises its functions without fear, favour or prejudice, the Minister must exercise final responsibility over the NPA and the NDPP must determine prosecution policy with the concurrence of the Minister.

[32] Accordingly, the Constitution on the one hand vests the prosecutorial responsibility in the NPA while, on the other, it provides that the Minister must exercise final responsibility over it. These provisions may appear to conflict but, as the Namibian Supreme Court held in relation to comparable provisions in its Constitution, they are not incompatible.²⁸ It held (I am using terms that conform with our Constitution) that although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.

[33] The NPA Act, the constitutionality of which is not under attack, shows that the court below overstated the position when it held without qualification that ‘there should be no relationship [between the NPA and] the Minister of Justice – certainly insofar as his decisions to prosecute or not to prosecute anybody from the Commissioner of Police downwards’ (para 207). (To the extent that the statement implies that there could be a relationship from the Commissioner of Police upwards it was probably unintended.)

[34] The Act requires members of the prosecuting authority to serve ‘impartially’ and exercise, carry out or perform their powers, duties and functions ‘in good faith and without fear, favour or prejudice’ and subject only to the Constitution and the law (s 32(1)(a)).²⁹ It further provides that no one may interfere ‘improperly’ with the NPA in the performance of its duties and functions (s 32(1)(b)). (‘Improperly’ may be tautologous because interference usually implies some or other impropriety.) It reaffirms that the Minister must exercise final responsibility over the NPA and obliges the NDPP, at the request of the Minister, to furnish the latter with information or a report with regard to any case and to provide the Minister with reasons for any decision taken (s 33(2)). More directly in point is s 22(2)(c), which is the counterpart of s 179(5)(d) of the Constitution and deals with the NDPP’s review function, read with s 22(4)(a)(iii). The latter provision states that, in exercising the review power to prosecute or not to prosecute, the NDPP may advise the Minister ‘on all matters relating to the administration of justice’, which is hardly compatible with the notion that there may be no relationship between them.

[35] The court below began its discussion of the legal issues implying in general terms that a decision to prosecute is an administrative action to which the audi principle (with its offspring the doctrine of legitimate expectation) applies (para 47-53). This has never been the law and, as the Constitutional Court held, it is not the law under the Constitution and the Promotion of Administrative Justice Act 3 of 2000 (PAJA).³⁰ Such a decision is not susceptible to review. There are policy reasons for this³¹ that need not be discussed because the constitutionality of the provision of PAJA,³² which excludes a review of a decision to prosecute,³³ is not under attack.³⁴

[36] This does not mean, and it was never argued otherwise, that a failure to comply with a constitutional or statutory requirement to hear a party is not justiciable under the principle of legality irrespective of whether or not PAJA applies.³⁵

[37] The court dealt at length with the non-contentious principle that the NPA must not be led by political considerations and that ministerial responsibility over the NPA does not imply a right to interfere with a decision to prosecute (para 88 et seq). This, however, does need some contextualisation. 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,³⁶ something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded.³⁷ The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal.³⁸ The same applies to prosecutions.³⁹

[38] This does not, however, mean that the prosecution may use its powers for ‘ulterior purposes’. To do so would breach the principle of legality. The facts in Highstead Entertainment (Pty) Ltd t/a ‘The Club’ v Minister of Law and Order⁴⁰ illustrate and explain the point. The police had confiscated machines belonging to Highstead for the purpose of charging it with gambling offences. They were intent on confiscating further machines. The object was not to use them as exhibits – they had enough exhibits already – but to put Highstead out of business. In other words, the confiscation had nothing to do with the intended prosecution and the power to confiscate was accordingly used for a purpose not authorised by the statute. This is what ‘ulterior purpose’ in this context means. That is not the case before us. In the absence of evidence that the prosecution of Mr Zuma was not intended to obtain a conviction the reliance on this line of authority is misplaced as was the focus on motive.⁴¹

[39] Courts have also interfered with decisions to prosecute in circumstances where the prosecuting authorities had given an undertaking not to prosecute or had made a representation to that effect in exchange for a plea or for co-operation.⁴² The prosecuting authority has been kept to its bargain. Interesting as the examples may be, they have no bearing on the facts before us.

THE NGCUKA DECISION

[40] I have already mentioned that during August 2003 Mr Ngcuka, in his capacity as NDPP, decided to prosecute Mr Shaik but not to prosecute Mr Zuma. He announced this decision at a press conference in the presence of the then Minister, Dr Penuel Maduna. In the press release Mr Ngcuka made two statements that are of consequence to Mr Zuma’s case. The one deals with the legitimate expectation argument, to which I shall revert under another heading. The second statement was this:

‘After careful consideration in which we looked at the evidence and the facts dispassionately, we have concluded that, whilst there is a prima facie case of corruption against the Deputy President, our prospects of success are not strong enough. That means that we are not sure if we have a winnable case.’

Mr Zuma expressed his dissatisfaction with this statement because, he said, it carried the gratuitous and offensive imputation, which he had to endure, that he was corrupt but had covered his tracks. Apart from this, Mr Zuma, as appears from his founding affidavit, was quite pleased with the announcement. Indeed, in his replying affidavit he made it clear that it was common cause that ‘after extensive and thorough investigations’, Mr Ngcuka and his deputy, Mr McCarthy, ‘took a carefully considered decision’ not to prosecute him.⁴³

[41] It is important to stress that Mr Zuma did not allege that this decision was politically motivated; he did not say that it was unjustified; and he did not allege that Dr Maduna had acted improperly by being present at the press conference. In spite of this, Nicholson J saw it as his duty to determine whether the decision was made from fear or favour (para 174) and said (para 175):

‘At first blush a decision not to prosecute the Deputy President of the country appears to be as a favour to the second highest ranking politician in the country. The applicant denies this and puts quite a different slant on the objective. He says it was all part of a political agenda that had as its objective the favouring of President Mbeki in his quest for a further term of office as ANC President.’

[42] The statements in the second and third sentences are puzzling. Mr Zuma was never called upon to deal with the supposition that the decision not to prosecute was a favour to him and, accordingly, he never sought to deny it. And although Mr Zuma perceived a political plot behind the Pikoli and Mpshe decisions, he did not say that the Ngcuka decision was part of the plot. The trial judge’s later statement that Mr Zuma maintained that there was a strategy to prosecute Mr Shaik and, when he was convicted, to dismiss him as Deputy President, does likewise not appear from the papers (para 196).

[43] Nicholson J also attacked the merits of the Ngcuka decision, finding that it was ‘bizarre’ and that it brought justice into disrepute (para 150 and 155). The merits of the decision were, once again, not before him and were irrelevant and in reaching this conclusion he in any event took no note of the NDPP’s explanation. It is correct that if there is prima facie evidence of a crime in the sense of reasonable prospects of success the NPA should, in the absence of other germane considerations, initiate a prosecution. But the term ‘prima facie evidence’ has more than one connotation and may mean, as Mr Ngcuka conveyed, that there may be evidence of the commission of a crime which is nonetheless insufficient to satisfy the threshold of a reasonable prospect of success, especially if regard is had to the burden of proof in a criminal case.⁴⁴ Although corruption involves two persons, the fact that the one may be guilty does not mean that the other is also guilty because the intention of each party must be decided separately, and evidence that may be admissible against the one may not be admissible against the other.⁴⁵ In other words, the fact that Mr Shaik was found guilty does not mean that Mr Zuma is guilty. Having said all of this, I must emphasise that I am not holding that the Ngcuka decision was right, simply because I do not have the material to judge what is in the context of this case a non-issue. Instead, I am simply holding that the court below had erred in this regard.

[44] I have already mentioned that Mr Zuma never accused Dr Maduna of having acted improperly, whether in connection with the Ngcuka decision or otherwise. Nicholson J, again, thought otherwise and without hearing Dr Maduna concluded that he had done so in attending the press conference. From this he deduced that there was a suggestion of political interference and then held that Dr Maduna played a ‘not insignificant part’ in planning the ‘strategy’ not to prosecute in order to have Mr Zuma dismissed as Deputy President on the conviction of Mr Shaik, and that this constituted a serious criminal offence (para 196).⁴⁶ Dr Maduna’s supposed machinations around the Ngcuka decision were then extrapolated to cover Mr Mbeki and the whole cabinet (para 213). (It is a matter of public record that Dr Maduna left cabinet after the 2004 general elections.) Once again, the ‘strategy’ involving Dr Maduna, Mr Mbeki and all the other members of cabinet as well as the causal connection between the Ngcuka decision and Mr Mbeki and the cabinet as found by the trial judge were not based on any evidence or allegation. They were instead part of the judge’s own conspiracy theory and not one advanced by Mr Zuma.⁴⁷ Further, the finding, by implication or otherwise, that a non-party may have committed a criminal act where this was not alleged, where it was not in issue and without hearing that party is incomprehensible.

THE PIKOLI DECISION

[45] It will be recalled that the Pikoli decision to indict Mr Zuma came to nought when Msimang J struck the case from the roll. This, according to the Constitutional Court, terminated the proceedings.⁴⁸ Having fallen away, the Pikoli decision was of mere academic interest and nothing was left to set aside. The court below realised this and, consequently, refrained from setting it aside (para 242).

[46] The court nevertheless proceeded to make findings about the decision that cannot be justified on the record and, once again, I would fail in my duty if I did not indicate briefly where the court overstepped the mark. It latched onto a paragraph in an annexure to the NDPP’s answering affidavit on which Mr Zuma had not relied (para 197-199). It was an answer by Mr Pikoli to an affidavit made by Mr Zuma in the proceedings before Msimang J. The NDPP alleges that the trial judge misunderstood the context of Mr Pikoli’s evidence and counsel for Mr Zuma did not dispute this. The court also relied on the contents of a newspaper article that speculated that the decision to prosecute was politically motivated (para 200-205). Mr Zuma had attached the article to his founding affidavit to indicate that he believed that his case was being reviewed by the NDPP. He did not rely on the contents of the article which, in any event, were no more than inadmissible speculation by a journalist.

[47] The trial judge, again, failed to comply with basic rules of procedure.⁴⁹ Judgment by ambush is not permitted. It is not proper for a court in motion proceedings to base its judgment on passages in documents which have been annexed to the papers when the conclusions sought to be drawn from such passages have not been canvassed in the affidavits. The reason is manifest ─ the other party may well be prejudiced because evidence may have been available to it to refute the new case on the facts. A party cannot be expected to trawl through annexures to the opponent’s affidavit and to speculate on the possible relevance of facts therein contained.⁵⁰ The position is no different from the case where a witness in a trial is not called upon to deal with a fact and the court then draws an adverse conclusion against that witness.⁵¹

[48] This criticism also applies in relation to the findings of the court below about the unrelated investigation concerning the Commissioner of Police, Mr Jackie Selebi. Its findings that (a) ‘there is no refutation that the Selebi warrants were cancelled by Mr Mpshe after political interference and that Pikoli was suspended because he refused to do so’ (para 205); that (b) ‘Mr Pikoli does not deal with the allegation that the issuing of the warrants against Selebi was not palatable to the President but the decision to prosecute the applicant was’ (para 206); and that (c) ‘the suspension of [Mr Pikoli] was a most ominous move that struck at the core of a crucial State institution’ (para 207) were all likewise based on unconfirmed newspaper speculation on which Mr Zuma did not and could not rely. Here again the court, without having all the facts, commented on matters that were not in issue or canvassed.

[49] Mr Zuma did not note a cross-appeal in relation to the dismissal of his claim for setting aside the Pikoli decision and, accordingly, the procedural correctness of this decision does not call for consideration.⁵² It is, however, necessary to say something about the allegation of political meddling with Mr Pikoli’s decision. This is because, although Mr Zuma made a general allegation of ‘political motives and stratagems’ in the decision to prosecute him, it is only in the case of the Pikoli decision that he tried to identify role players who were allegedly involved.

[50] The sequence of events was the conviction of Mr Shaik, a visit to Chile by Mr Mbeki and Mr Pikoli, Mr Mbeki’s dismissal of Mr Zuma, and Mr Pikoli’s decision to prosecute him. From this Mr Kemp (for Mr Zuma) sought to infer an implied instruction by Mr Mbeki to Mr Pikoli to prosecute Mr Zuma. That was the high watermark of the ‘evidence’ on political meddling.

[51] Once again, without deciding that there was or was not political meddling, fairness requires that these facts and accusations should be put in their proper perspective. The judgment of the trial judge in the Shaik matter found, albeit not in those words, that a generally corrupt relationship (to use Mr Kemp’s words during argument) existed between Mr Shaik and Mr Zuma. He added, quite appropriately, that his judgment did not hold that Mr Zuma was guilty. I have already mentioned what the basis of Mr Mbeki’s reaction was and it is difficult to see how Mr Pikoli could, in the light of the Shaik judgment, have failed to prosecute Mr Zuma. The evidence about the trip to Chile is clear and Mr Zuma knew this in advance: Mr Pikoli did not accompany Mr Mbeki although they were on the same mission. They did not meet and did not discuss the matter. Whether Mr Zuma believes this or not is another matter; courts are duty-bound to deal with proven facts.

THE MPSHE DECISION

[52] The legality of the Mpshe decision is the crux of this appeal. Unfortunately, the court below subjected Mr Mpshe to the same treatment that it had inflicted on others. It also used the newspaper report referred to above to make a similarly unfounded finding against Mr Mpshe (para 200-205). Having done this, the court went on to assume that Mr Mpshe complied with the supposed instructions of Mr Mbeki to prosecute Mr Zuma fearing that he, like Mr Pikoli, might be suspended or dismissed should he assert his prosecutorial independence (para 207). All this was gratuitous and not based on any evidence.⁵³

[53] The court below set aside the Mpshe decision and the indictment that followed because of his failure to (a) comply with s 179(5) of the Constitution and (b) accord Mr Zuma a hearing in the light of his legitimate expectation that arose, firstly, because of the Ngcuka announcement (para 223-224) and, secondly, in view of a letter written by Mr Zuma’s attorney, Mr Hulley, shortly before the decision was made and Mr Mpshe’s response to it (para 132-133, 230).⁵⁴

[54] It is necessary to stress that the NDPP never refused to afford Mr Zuma a hearing. Mr Zuma knew from June 2005 that he was the subject of an investigation. He was soon thereafter served with ‘interim’ indictments. He had been told in the Ngcuka press release that he could make representations under s 22(4)(c) of the NPA Act and that the NDPP was duty-bound to consider them. He did nothing of the sort. Instead, he resisted all attempts by the NPA to further their investigation. This case is accordingly not about the opportunity to be heard – it is about Mr Zuma’s alleged right to be invited to make representations and, concomitantly, a right to a statement setting out the criteria that were applied in not prosecuting him and how these had changed. In other words, he requires with the invitation an analysis of the case against him as considered by Mr Ngcuka against the facts in possession of Mr Mpshe.

SECTION 179(5)(d) of the CONSTITUTION

[55] The full text of s 179 appears earlier in a footnote but it is convenient at this juncture to quote the relevant part of sub-sec (5):

‘The National Director of Public Prosecutions—

. . .

(d) may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:

(i) The accused person.

(ii) The complainant.

(iii) Any other person or party whom the National Director considers to be relevant.’

[56] The main issue between the parties is whether the requirement of ‘taking representations’ from Mr Zuma applies to the facts of this case. The NDPP argues that the provision applies only to reviews of decisions of DPPs and their prosecutors while Mr Zuma contends that it also applies when the NDPP reconsiders one of his own decisions.

[57] Before dealing with the wording of the provision it must be placed in context. Section 179 is to be found in chapter 8 of the Constitution, which deals with ‘Courts and Administration of Justice’. This chapter does not purport to deal with rights of accused persons – they are contained in chapter 2, the Bill of Rights, more particularly s 35. I accept that the chapter must be so interpreted that it promotes the spirit, purport and objects of the Bill of Rights and fits seamlessly into the Constitution as a whole.

[58] As mentioned before, s 179 created a new prosecutorial structure where, instead of having a number of Attorneys-General, each with their respective areas of jurisdiction, one now has an NDPP who is a presidential (political) appointee at the apex of a single NPA and below him DPPs and prosecutors who are not.

[59] Against this background sub-sec (3)(b) states that DPPs are to be ‘responsible’ for prosecutions in their specific jurisdictions, subject to the contentious sub-sec (5). ‘Responsible’, as Mr Kemp argued, means in this context ‘answerable, accountable; liable to account’.⁵⁵ By virtue of the cross-reference to sub-sec (5), this implies that DPPs are answerable to the NDPP. Paragraphs (a)-(c) proceed to deal with three functions of the NDPP in his capacity as head of the NPA and his control over DPPs and the prosecutors for whom they are in turn responsible. They are to determine prosecution policy; to issue policy directives; and to intervene in the prosecution process when policy directives are not complied with.⁵⁶

[60] Sub-section (5)(d) deals with the procedure that the NDPP must follow in reviewing a prosecutorial decision. This requires prior consultation with ‘the relevant’ DPP and prior representations from the accused, the complainant and any other relevant person.

[61] The dictionary meaning of ‘review’ includes the review of an own decision but as the court below correctly pointed out ‘the concept of a review or reconsideration assumes a role somewhat elevated to and distant from the person whose decision is being reviewed’ (para 106).⁵⁷ It is also in the ordinary course of events done on the existing record and the facts that were before the person whose decision is being reviewed. Support for this can be found in legislation such as s 302 of the Criminal Procedure Act 51 of 1977, s 24 of the Supreme Court Act 59 of 1959, the various statutes dealing with courts of the same status as the high courts, PAJA and the Uniform Rules of Court r 53. It is accordingly wrong to argue, as did Mr Kemp, that regard must simply be had to the dictionary meaning of ‘review’. Dictionary meanings are only a guide to meaning because the meaning of words depends on context.⁵⁸

[62] In the context of sub-sec (5), the power to review can only be an ‘apex’ function, in other words, a function of the head of the NPA qua head. Paragraph (d) accordingly deals only with the review of a decision by the ‘relevant’ DPP – it does not include a reconsideration of the NDPP’s own decisions. Once this is accepted, the reference to the ‘relevant’ DPP does not, as submitted by Mr Kemp, refer to the DPP who is affected because the case may fall within his jurisdiction.

[63] Mr Kemp also submitted that para (d) is an empowering provision, meaning that the NDPP’s power to review decisions derives solely from its terms. The corollary of his argument is that the consultation and representation requirement applies to decisions of the NDPP or else the NDPP would not be entitled to revisit his own prosecutorial decisions. In the light of the finding in the preceding paragraph that the provision is an ‘apex’ provision that deals with the control of the NDPP over the DPPs, the premise of the argument falls away.

[64] There is a more compelling reason why the submission cannot be sustained. Section 179(2) is the empowering provision. It empowers the NPA to institute criminal proceedings, and to carry out ‘any necessary functions incidental to instituting criminal proceedings’. The power to make prosecutorial decisions and to review them flows from this.⁵⁹ If it were necessary specially to empower any member of the NPA to make such decisions and to revisit them, one would have expected the Constitution to have said so. It would be incongruous to require a special provision to empower the head of the NPA to review matters but to assume that other members of the NPA of a lower rank have the power of review by implication. One would have expected that at the lower level there is greater need for these requirements but, significantly, the drafters of the Constitution, conscious of the existing practice, and for good reason, did not think it necessary to include such safeguards.⁶⁰

[65] Mr Kemp further argued that the purpose of the provision was to protect the legitimate reliance an accused and a complainant may place on a duly considered and announced prosecutorial decision, and that it limits arbitrary changes of prosecutorial decisions at the NDPP level. This means that any decision reviewed by the NDPP is subject to the consultation and representation requirements of the sub-section. The reason, he said, is to be found in the fact that the NDPP is a political appointee and, consequently, the object of the consultation and representation requirement is to control the NDPP’s political mindset in decision-making.⁶¹

[66] There are several counters to this argument. First, although the NDPP is a presidential appointee it is fair to assume that the drafters of the Constitution took it for granted that the NDPP would, as would Attorneys-General in common-law countries who are also political appointees, act independently and not take political considerations into account in making prosecutorial decisions. I have dealt earlier with this aspect. Second, if the object was to prevent the NDPP from taking decisions without the input of DPPs in order to prevent him from taking politically motivated decisions, the provision would not have limited the consultation and representation requirement to cases of review, but would have extended it to all his prosecutorial decisions. In order to give the submitted rationale sense, counsel had to introduce a limitation into the text of the Constitution, namely that the decision under review must have been announced. There is nothing to justify such a limitation.

[67] Mr Kemp also relied on the equal protection clause in the Constitution. The argument amounts to this: all accused persons should be treated equally; and the right to be invited to make representations in the case of a review of a prosecutorial decision should accordingly be so interpreted as to accrue to all reviews and not only those of the NDPP’s subordinates. The presumption of equal treatment in statutory interpretation has always been with us and now has a special status by virtue of the Bill of Rights.⁶² The question is whether it is ousted by other considerations in the circumstances of this section of the Constitution. I am of the view that it is. The underlying purpose of the provision is not to protect the accused or the complainant: it is to define the procedure for the exercise of the power of control of the NDPP. It would be strange to find such an important right, which is not known in comparable jurisdictions or in our common law, in a chapter of the Constitution that deals basically with structures concerned with the administration of justice and not rights. The Bill of Rights deals in great detail with the rights of accused persons, and is silent about the right to be invited to make representations concerning prosecutorial decisions. The main problem though is that s 179 on any interpretation ‘discriminates’ in the sense that the right to be invited does not extend to most prosecutorial reviews like those by a DPP or a prosecutor. These considerations trump in my view the presumption and Mr Kemp’s reliance on the equal protection clause of the Bill of Rights is, accordingly, misplaced.

[68] Both parties pointed to anomalies flowing from the other’s interpretation. Mr Trengove (for the NDPP) pointed to these: Why protect an accused when an earlier prosecution decision is reversed but not when the first prosecution decision is taken? Why protect him when the NDPP reverses an earlier prosecution decision but not when the DPP or the prosecutor does so? Who is the relevant DPP with whom the NDPP must consult when the earlier decision was his own? Why must the NDPP consult with the accused if he wishes to withdraw and with the complainant if he wishes to prosecute? Mr Kemp had a shorter list of anomalies. The first can be disposed of immediately. He suggested that to avoid a review by the NDPP, a DPP may dishonestly have a prosecutor make the decision to prosecute.⁶³ This is not so: the ‘relevant’ DPP is the one who is ‘responsible’ for the prosecution under ss (3)(b). The second concerns the case where the NDPP reviews a decision of a DPP after hearing representations but then at the request of one of the affected parties decides to reconsider his decision without hearing anyone. This reductio ad absurdum is but another formulation of one of Mr Trengove’s anomalies and, as he said, anomalies will remain irrespective of which interpretation is adopted.

[69] The last aspect that needs mentioning in relation to the interpretation of para (d) concerns the use by the court below of the ‘reading in reading out’ method of interpretation (para 123-126). This method is a constitutional remedy which is used to prevent a finding that legislation is unconstitutional.⁶⁴ This case is concerned with the interpretation of the Constitution itself and not with its constitutionality and the use of the ‘reading in reading out’ mechanism by the court was inappropriate.

[70] I therefore conclude that s 179(5)(d) does not apply to a reconsideration by the NDPP of his own earlier decisions but is limited to a review of a decision made by a DPP or some other prosecutor for whom a DPP is responsible.

[71] Mr Kemp sought to argue on the facts that the Ngcuka decision was not one by the NDPP but was taken jointly by the NDPP and the head of the Directorate of Special Operations (the DSO) who, he submitted, was a DPP and, accordingly, that the Ngcuka decision was one by a DPP. 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 DSO.⁶⁵

[72] A further aspect of the Ngcuka decision that requires consideration is its scope. The decision was made in a particular context. The context was the two counts of corruption levelled against Mr Shaik, Mr Zuma being the recipient of the alleged bribes. It was not a decision not to prosecute Mr Zuma for any crimes whenever committed. Mr Ngcuka made it clear that if circumstances were to change in the sense that more or better evidence became available the decision not to prosecute would be revisited and reconsidered. This means that the Ngcuka decision was not intended to be final; it depended on the then available evidence; and it was limited to the mirror images of the Shaik corruption counts.

[73] The Mpshe decision, on the evidence of the NDPP, was not a review of the Ngcuka decision. The Ngcuka decision had been overtaken by events. There was the impact of the evidence and judgment in the Shaik trial; there was the availability of additional evidence which, apart from strengthening the prima facie case, placed a different complexion on the corruption counts and in the mind of the NDPP justified the addition of counts of money laundering and racketeering; there are now four main corruption counts; and there is evidence about further crimes, such as tax evasion and fraud on Parliament.⁶⁶

[74] There is another consideration flowing from the differences between the counts underlying the Ngcuka decision and the indictment that was ultimately before Nicholson J. Even on his interpretation of s 179(5)(d) he was obliged to excise the good from the bad. However, he held that the ‘offer [by Mr Ngcuka] to hear [Mr Zuma’s] representations probably covered any charges against him should the [NDPP] decide to charge him’ (para 244). As a finding of fact it is wrong because Mr Ngcuka’s alleged offer was not open-ended and it also overlooks the fact that a review by the NDPP of a decision not to prosecute under s 179(5)(d) has nothing to do with any prior ‘offer’ to hear representations.

[75] In addition, as held by the Constitutional Court, 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.⁶⁷ The effect of this is that what went before the Mpshe decision was spent and a new decision to prosecute was required. The Mpshe decision 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.

LEGITIMATE EXPECTATION

[76] I now turn to consider the argument based on legitimate expectation, which is an alternative cause of action. I found it difficult to come to grips with Mr Kemp’s argument on both the expectation and its legitimacy.

[77] The argument underwent a metamorphosis and ultimately it was that Mr Zuma ought to have been given an opportunity (more accurately, to have been invited) to make representations, not about the reversal of the Ngcuka decision but about the ‘effective decision not to afford [him the opportunity] to make representations which could or would relate also to issues which have nothing to do with the merits of the criminal trial’. This sleight of hand was apparently due to a tacit recognition that decisions to prosecute are not covered by ‘specialised legislative regulation of administrative action’,⁶⁸ and that they are not reviewable on the ground of legitimate expectation by virtue of PAJA. The problem with this argument is that there is nothing on the papers to suggest that the NDPP decided not to afford Mr Zuma the opportunity to make representations. To dissect any administrative decision into discrete sub-decisions as counsel would have it is contrived since, as Mr Trengove said, any procedural unfairness would then imply a prior decision, whether express or tacit, not to follow the correct procedure.

[78] It is to be noted that Mr Kemp scuppered the case as presented to and found by Nicholson J. He no longer sought to rely on the Ngcuka announcement or on the Hulley/Mpshe correspondence as having created any expectation because, as he said, he could not point to any representation in them. To indicate how valueless the Ngcuka announcement was for purposes of extricating from it a promise to invite representations, it is worth quoting:

‘We have never asked for nor sought mediation. We do not need mediation and we do not mediate in matters of this nature. However, we have no objection to people making representations to us, be it in respect of prosecutions or investigations. In terms of section 22(4)(c) of the [NPA] Act, we are duty bound to consider representations.’

As said, Mr Zuma never purported to make representations under the NPA Act.

[79] Mr Kemp sought to rely on an accumulation of facts namely that (a) the Ngcuka decision was preceded by a careful investigation; (b) during that investigation Mr Zuma, instead of being subjected to a warning statement, was asked to answer written questions, some of which he did; (c) the NDPP knew that Mr Zuma suspected political meddling and strenuously denied that there was any real new evidence; (d) Mr Zuma asserted that s 179(5)(d) applied and Mr Hulley by implication had requested the NDPP to comply with s 179(5)(d) and the NDPP refused; and (e) the NPA is bound by its policy directives. If I have omitted any it is because the written and oral argument on this aspect of the case was rather opaque.

[80] An expectation can be legitimate only if it is based on a practice of or a clear and unambiguous representation by the administrator.⁶⁹ Instead of relying on any representation, Mr Zuma relies on self-created expectations based on his own perceptions of the law and the facts, which have always been in dispute. As to practice, the best Mr Kemp could do was to quote at length from the NPA’s prosecution policy without pointing to any provision that established any practice or contained a representation on which Mr Zuma relied.

THE STRIKING OUT

[81] I have already referred to the impugned allegations in the founding affidavit which were completely irrelevant. It is not necessary to analyse the allegations objected to by the NDPP because it makes no sense to strike them out at this late stage of the proceedings. The damage has been done. This does not mean that the order of the court below should stand. Most of the allegations were not only irrelevant but they were gratuitous and based on suspicion and not on fact. The excuse for including them was unconvincing especially in the light of the disavowal of any intention to rely on them. The prejudice to the NDPP was manifest. Instead of having a short and simple case, the matter not only ballooned but burst in the faces of many. There may well be reason to hold that many of the allegations were vexatious and scandalous but, once again, it is not necessary to do so for present purposes.

[82] An order on the scale of attorney and client is fully justified, especially since it is not the first occasion on which Mr Zuma has insisted on including such irrelevant allegations.⁷⁰ One cannot escape the impression that the founding affidavit was cut and pasted from other court papers and that in response the NDPP followed suit. Mr Kemp submitted that we could not interfere because the court below had exercised its discretion. However, the court did not exercise any discretion and to the extent that it purported to do so it relied on incorrect principles and had the facts wrong.

[83] Mr Zuma’s unusual application to strike out the affidavit in support of the NDPP’s application to strike out was, in the light of this, ill-conceived and should not have succeeded in the court below.

THE INTERVENTION APPLICATION

[84] It ought to be apparent by now that Mr Mbeki and other members of Government had ample reason to be upset by the reasons in the judgment which cast aspersions on them without regard to their basic rights to be treated fairly. It is not necessary to revisit those issues since they have been dealt with in sufficient detail. However, they make the applicants’ desire to intervene at the appeal stage understandable.⁷¹

[85] Nevertheless, to be able to intervene in proceedings a party must have a direct and substantial interest in the outcome of the litigation, whether in the court of first instance or on appeal.⁷² The basic problem with the application is that the applicants have no interest in the order but only in the reasoning. They are in the position of a witness whose evidence has been rejected or on whose demeanour an unfavourable finding has been expressed. Such a person has no ready remedy, especially not by means of intervention. To be able to intervene in an appeal, which is by its nature directed at a wrong order and not at incorrect reasoning, an applicant must have an interest in the order under appeal.⁷³ The applicants do not have such an interest.

[86] They also sought leave to join as amici curiae. In the light of the NDPP’s argument their intervention in this regard was not required since it did not add anything new.

[87] In the result the application stands to be dismissed. The question of its costs remains. Mr Zuma filed a lengthy answering affidavit which was unnecessary and inappropriate. Since Mr Kemp fairly conceded that the court below had no grounds for making (most, if not all) the impugned findings, Mr Zuma’s opposition is not understood. He had no legal interest in upholding the denigration of the applicants and in opposing the intervention because it did not affect the order he sought to uphold. The submission that we should not reconsider these findings because they are not appealable is cynical. He should therefore bear his own costs in this regard.

THE ORDER

[88] In the light of the foregoing the following order is made:

A The appeal is upheld with costs including the costs of three counsel.

B Paragraphs 1 to 4 of the order of the court below are set aside and replaced with the following:

‘1 The application is dismissed.

2 The applicant is to pay the respondent’s costs of suit including those consequent upon the employment of three counsel.

3 On the respondent’s application to strike out, the applicant is ordered to pay the costs on the attorney and client scale.

4 The applicant’s application to strike out is dismissed with costs on the attorney and client scale.’

C The application to intervene is dismissed.

_______________

L T C HARMS

DEPUTY PRESIDENT

For Appellant: W Trengove SC

B Downer SC

G Baloyi

A Breitenbach

A Steynberg

Instructed by: Deputy Director of Public Prosecutions

Durban

The State Attorney

Bloemfontein

For Respondent: K J Kemp SC

M D C Smithers

A A Gabriel

Instructed by: Hulley & Associates

Durban

Honey Attorneys Inc

Bloemfontein

Advocates for Interveners:

M T K Moerane SC

P Coppin SC

L Gcabashe