IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 19577/2009
In the matter between:
ACTING NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS - First Applicant
THE HEAD OF THE DIRECTORATE OF SPECIAL OPERATIONS - Second Applicant
and
DEMOCRATIC ALLIANCE - Respondent
In Re:
DEMOCRATIC ALLIANCE - Applicant
and
ACTING NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS - First Respondent
THE HEAD OF THE DIRECTORATE OF SPECIAL OPERATIONS - Second Respondent
JACOB GEDLEYIHLEKISA ZUMA - Third Respondent
THE SOCIETY FOR THE PROTECTION OF OUR CONSTITUTION - Amicus Curiae
FIRST AND SECOND RESPONDENTS’ APPLICATION FOR LEAVE TO APPEAL
BE PLEASED TO TAKE NOTICE THAT the First and Second Applicants (First and Second Respondents in the Main Application) intend to apply to the above Honourable Court, on a date and time to be arranged by the Registrar, for leave to appeal to the Supreme Court of Appeal against the whole of the Judgment and Order of the Full Bench of this Honourable Court delivered on 29 April 2016.
TAKE NOTICE FURTHER that the findings of fact and/or rulings of law appealed against as well as the grounds of appeal are the following. For ease of reference the parties are henceforth referred to as they were in the Main Application.
1. FIRST GROUND
1.1. It is submitted that the Court erred in finding that Mr Mpshe, by not referring the complaint of abuse of process and the related allegations against Mr McCarthy to Court, rendered his decision irrational (judgment, paras 64-65 & 71). In effect, the Court found that Mr Mpshe acted ultra vires his powers as vested in section 179(5)(d) of the Constitution and section 22(2) of the National Prosecuting Authority Act 32 of 1998 (“the NPA Act”).
1.2. In the foreign case referred to by this Court, namely HKSAR v Lee Ming Tee, case FACC no.1 (2003), the Hong Kong Court conceded that the question is “debatable” and went no further than expressing what it considered to be “the better view”.
1.3. As a matter of logic, there seems no reason why the head of the prosecuting service may not take it upon himself to determine that the abuse was so egregious as to warrant discontinuation, even in the absence of a direct causal nexus between the abuse and the prospects of a fair trial. The National Director of Public Prosecutions (“NDPP”) has taken an oath to protect and defend the Constitution. His duty is to protect the institutional integrity of the institution; it is he that is best positioned to weigh the seriousness of abuse within his own hierarchy. If, as here, the NDPP misconducts himself in the internal review of prosecution, it is always open for the matter to be taken on review.
1.4. It is a trite principle that a prosecutor is vested with a very broad discretion. The public interest must always factor in his determinations – to the extent that it is not obligatory that every person he considers guilty must be charged.
1.5. In argument on behalf of the First and Second Respondents, reference was made to Regina (Corner House Research & another) v Director of the Serious Fraud Office.[1] One finds reference there to the principle that there is no rule that criminal offences must automatically be the subject of prosecution. In line with the principles of the common law, there is no principle of compulsory prosecution: prosecutors always have a discretion whether or not to institute a prosecution and, if so for which offence.
1.6. It is emphasised that in the present case the senior management of the NPA formed the view that it was not in the public interest to proceed with the prosecution in light of the conduct of Mr McCarthy. It would be artificial and make no sense for the prosecutor who has formed the view that the prosecution should not be proceeded with, to wait for the accused to bring an application to stay the prosecution and to then acquiesce.
2. SECOND GROUND
2.1. The Court found (judgment, para 92) that the envisaged prosecution against Mr Zuma was not tainted by the allegations against Mr McCarthy. It is respectfully submitted that the Court should have found that the prosecutorial process was tainted and that it was not irrational to decide to discontinue the prosecution.
2.2. The Court stated that Mr Zuma should face the charges as outlined in the indictment. It is submitted that the Court erred in this regard. This finding is an inappropriate transgression of the separation-of-powers doctrine. The doctrine precludes the courts from impermissibly assuming the functions that fall within the domain of the executive. In terms of the Constitution, the NDPP is the authority mandated to prosecute crime. A court can only be allowed to interfere with this constitutional scheme on rare occasions and for compelling reasons. It is submitted that none exist in this matter.
3. THIRD GROUND
3.1. The Court referred to Mr Mpshe’s reference in his media address to the case of R v Latif,[2] in which the Court stated that the Judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried against the competing interest in not conveying the impression that the Court will adopt the approach that the end justifies any means. Judgment, para 63).
3.2. The Court referred to the “balancing of two imperatives”, and said that Mr Mpshe omitted to consider or deal with the second imperative in his media release (namely, protecting the public from serious crime) (judgment, para 66).
3.3. It is submitted that the Court erred in finding that Mr Mpshe did not balance the two imperatives.
3.4. In Mr Mpshe’s media statement, under the heading “Background” (annexure JS10, Vol 1-B, page 120), Mr Mpshe stated that the NPA had received representations pertaining to the following issues:
· The substantive merits
· The fair trial defences
· The practical implications and considerations of continued prosecution
· The policy aspects militating against prosecution
3.5. Mr Mpshe continued:
“I need to state upfront that we could not find anything with regard to the first three grounds that militate against a continuation of the prosecution, and I therefore do not intend to deal in depth with those three grounds. I will focus on the fourth ground which I consider to be the most pertinent for purposes of my decision .....”.
3.6. It is submitted that it is therefore clear that Mr Mpshe did consider the merits. But for the manipulation of the process, the prosecution would have continued on the merits.
3.7. Mr Mpshe made clear that he considered that the public interest factor outweighed the continued prosecution of Mr Zuma, notwithstanding that the prosecutors felt firmly about the merits of the case.
3.8. It is emphasized that the NDPP is vested with a discretion which is his alone to exercise provided he is not mala fide. Even if his decision is not one which someone else or the Court would have taken, and even if it was unreasonable, it is not a basis to set it aside, absent irrationality. In R v Latif,[3] Lord Steyn said:
“It is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system”.
3.9. The Court found (judgment, para 88), that once Mr Mpshe had said the alleged conduct of Mr McCarthy had not affected the merits of the charges against Mr Zuma, cadit quaestio; there was no rational connection between the need to protect the integrity of the NPA and the decision to discontinue the prosecution against Mr Zuma. It is submitted that the Court erred in this regard. It is submitted that where the rule of law is undermined, it may be rational to stop the prosecution.
3.10. There is ample authority to the effect that conduct amounting to an abuse of process is not confined to that which precludes a fair trial; and this proposition is also a necessary indicant of the rule of law.
4. FOURTH GROUND
4.1. It is respectfully submitted that the Court erred in finding (judgment, para 50), that “the essence” of the argument on behalf of the First and Second Respondents was that, having regard to the Browse Mole report criticising Mr McCarthy’s conduct in leaking information to the media, and the contents of the transcript of certain telephone conversations, Mr Mpshe was justified in deciding to discontinue the prosecution of Mr Zuma and that his decision was rational. In this regard the following submissions are made.
4.2. It was rather the First and Second Respondents’ case that, contrary to the NPA’s statutory obligation to make independent prosecutorial decisions, Mr McCarthy influenced and made decisions related to the timing of the prosecution that were intended to harm Mr Zuma’s chances of successfully challenging then-President Mbeki at the Polokwane electoral conference for the position of ANC President, and boosting President Mbeki’s prospects of retaining his tenure as such.[4]
4.3. The NPA process had been abused for political reasons. Mr McCarthy and Mr Ngcuka manipulated the NPA to assist President Mbeki in his battle against Mr Zuma. The impugned decision to discontinue the prosecution was intended, inter alia, to send a clear message that political interference in the work of the NPA would not be tolerated.
4.4. In essence the First and Second Respondents case was that the conduct of Mr McCarthy, who, qua Director of Special Operations, was in effect the head of the prosecution authority for purposes of the case against Mr Zuma, was so egregious, and the process so tainted, that it was not in the public interest to pursue the prosecution. Even to the extent that the Honourable Court might have differed as to the particular manner in which Mr Mphse exercised his discretion, it was not open to displace his determination, namely, that it was more important to restore and maintain the integrity and independence of the prosecution authority than to pursue the conviction of a single individual, no matter how prominent.
4.5. The main reason for opposing the application (as found by the Court (judgment, para 7)), was that Mr McCarthy unduly influenced and interfered with the service of the indictment for political reasons. This found its way into Mr Mpshe’s address to the media on 6 April, when he referred to Messrs McCarthy and Ngcuka having manipulated the timing of the envisaged service of the indictment to Mr Zuma for political reasons. (Judgment, para 39).
4.6. Far from being, as erroneously found by the Court a quo, to be the essence of the case of the First and Second Respondents, the Browse Mole report was simply evidence to demonstrate that Mr McCarthy had for some time followed an agenda to besmirch Mr Zuma, with a view to cementing the position of President Mbeki. It is emphasized that it was Mr McCarthy who instituted an investigation against Mr Zuma in terms of section 28(1)(a) of the NPA Act.[5] The Browse Mole report simply demonstrated the unethical conduct of Mr McCarthy.
5. FIFTH GROUND
5.1. It is submitted that the Court erred in finding that the form of censure Mr Mpshe chose, by discontinuing the prosecution, failed to demonstrate a connection or linkage to the alleged conduct of Mr McCarthy (Judgment, para 54).
5.2. The principle of legality requires that the exercise of public power must be rationally related to the purpose for which the power was given.
5.3. It is submitted that Mr Mpshe, as the Acting NDPP, had the power to discontinue the prosecution; the Court erred in finding that he did not.
5.4. His decision was indeed rationally related to the purpose for which the power was conferred. The purpose of that power in this context may be to guard against manipulation, and ensure that all persons who are the subject of a prosecution, are dealt with in a manner which is fair, and by an independent authority not suborned or manipulated for political needs; further that the prosecution process is not in any way manipulated for an extraneous purpose unconnected to the actual prosecution.
5.5. It is submitted that this establishes the link required for rationality. The aforementioned must be seen in the light of the Court’s finding that the alleged conduct of Mr McCarthy as appears from the transcript of the recorded conversations, if proven, constitutes a serious breach of the law and prosecutorial policy. (Judgment, para 52).
6. SIXTH GROUND
6.1. It is respectfully submitted that the Court erred in its findings in paragraphs 76 to 79 of the judgment, in which it failed to appreciate the true reason for the decision of Mr McCarthy and Mr Ngcuka to delay the service of the indictment. In this regard: -
6.1.1. It is common cause that Mr McCarthy and Mr Ngcuka were bent upon ensuring that the indictment was served after the Polokwane conference, where President Mbeki and Mr Zuma would be vying for the Presidency of the ANC.
6.1.2. Hofmeyr states in his affidavit[6]:
“Before the Polokwane conference, Ngcuka and others opposed to Zuma, debated amongst themselves whether or not Mbeki’s chances of retaining the ANC Presidency would be strengthened by delaying the prosecution. Correctly or incorrectly, they believed that Mbeki’s chances of defeating Zuma would be strengthened if the prosecution were to be delayed. McCarthy did as he was asked to do although it was clear that at times, he did not agree with Ngcuka’s instructions. Ultimately, McCarthy ensured that the prosecution was delayed. He did so for one reason only, to bolster Mbeki’s chances of successfully defeating Zuma”.
6.1.3. It is clear that Mr McCarthy and Mr Ngcuka believed that the service of the indictment shortly before the Polokwane conference would provoke a reaction and backlash from persons attending the conference who would consider that this was being done in order to besmirch Mr Zuma and to advantage President Mbeki. That would, so they believed, move delegates to rally around Mr Zuma. That they may have miscalculated does not detract from the fact that Mr McCarthy persuaded Mr Mpshe to delay service of the indictment which he believed would disadvantage President Mbeki if the NPA did not hold back.
6.2. It was against this background that Mr Mpshe decided that Mr Zuma’s continued prosecution would be untenable.
7. CONCLUSION
7.1. There is considerable public interest at stake in this matter. The issues in this application for leave to appeal are of great constitutional import. It concerns the powers of the National Director of Public Prosecutions. This is a case which impinges upon vital constitutional questions of peculiar public interest.
7.2. It is submitted that there is a reasonable prospect of success and the First and Second Respondents accordingly seek leave to appeal to the Supreme Court of Appeal.
HILTON EPSTEIN SC
HAMILTON MAENETJE SC
ANTHEA PLATT
Counsel for the First
and Second Respondents
Chambers,
23 May 2016
Footnotes:
[1] [2008] 3 WLR 568
[2] [1996] 1 WLR 104
[3] Supra, 112 F
[4] Answering affidavit of William Hofmeyr, page 163, para 35.
[5] AA, Vol 3, page 191, para 78.
[6] Answering affidavit, page 175, para 30.
Issued by the NPA, 23 May 2016
