IN THE HIGH COURT OF SOUTH AFRICA
NATAL PROVINCIAL DIVISION
Cases 8652/08 and CC273/07
In the matter between:
JACOB GEDLEYIHLEKISA ZUMA Applicant
and
THE NDPP Respondent
In re:
THE STATE
and
JACOB GEDLEYIHLEKISA ZUMA Accused No. 1
THINT HOLDING (SOUTHERN AFRICA)
(PTY) LIMITED Accused No. 2
THINT (PTY) LIMITED Accused No. 3
APPLICATION FOR LEAVE TO APPEAL
TAKE NOTICE that the above-mentioned respondent (hereinafter "the NDPP"), hereby applies for leave to appeal to the Supreme Court of Appeal against the whole judgment and all the orders of this Court delivered on 12 September
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2008 except for the parts relating to the application of the Society for the Protection of Our Constitution ("the Judgment").
TAKE NOTICE further that the grounds on which leave to appeal is sought, are the following:
A. INTERPRETATION OF SECTION 179(5)(d) OF THE CONSTITUTION
1. First ground of appeal:
This Court erred in holding that the NDPP had to request and consider representations from the applicant before the NDPP Vusumzi Pikoli and the then head of the Directorate of Special Operations Leonard McCarthy, who was a Deputy NDPP, decided to prosecute the applicant in June 2005 ("the Pikoli decision"); and before the current Acting NDPP Mokotedi Mpshe SC and Mr McCarthy decided to prosecute the applicant in December 2007 ("the current decision"). This Court erred in holding that the Pikoli decision and the current decision constituted exercises of the power of review of a decision not to prosecute conferred on the NDPP by section 179(5)(d) of the Constitution - under that section the taking of representations from the accused person is a pre-requisite for the valid exercise of that power (see especially paragraphs 68 to 76, 106, 120, 123 and 126 of the Judgment).
In amplification of this ground of appeal, but without limiting its generality, the NDPP asserts that:
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(a) the Pikoli decision reversed the decision of the former NDPP Bulelani Ngcuka and Mr McCarthy not to charge the applicant announced on 23 August 2003 ("the Ngcuka decision"), albeit not because Mr Pikoli decided that Mr Ngcuka's decision was wrong but because Mr Pikoli decided afresh, on the basis of the information available to him, which included information arising from the Shaik trial that was not available to Mr Ngcuka in August 2003, that the applicant should be prosecuted;
(b) instead of reversing the Ngcuka decision, the current decision was a fresh decision taken after the prosecution started by the Pikoli decision had been terminated by the order of Msimang J striking the matter from the roll in September 2006;
(c) when taking the current decision, Mr Mpshe and Mr McCarthy did not overrule or reverse a decision taken by anyone else in the NPA - on the contrary, they accepted a recommendation by the prosecution team that the applicant and the Thint companies (accused 2 and 3) be charged in accordance with the revised draft indictment that the prosecution team had prepared between 8 November 2007 and 11 December 2007 (see paragraphs 92 to 93 of the NDPP's answering affidavit);
(d) the Ngcuka decision was taken by the NDPP himself, with the concurrence of Mr McCarthy (cf. paragraph 68 of the Judgment);
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(e) the Ngcuka decision was not taken by a Director of Public Prosecutions ("DPP");
(f) the structure, language, context, purpose and history of section
179(5)(d) of the Constitution make it clear that it applies only when the NDPP overrules and reverses a prosecution decision of a DPP; and
(g) accordingly, section 179(5)(d) of the Constitution does not apply to the present case because it is not one where the NDPP has exercised his power of review to overrule and reverse a decision by a DPP.
2. Second ground of appeal:
This Court erred in holding that that section 179(5)(d) of the Constitution had to be interpreted to include reviews of decisions to prosecute or not to prosecute taken by the NDPP and/or a Deputy NDPP, otherwise there would be a "gross inequality" (paragraph 120 of the Judgment).
In amplification of this ground of appeal, but without limiting its generality, the NDPP asserts that:
(a) section 179(5)(d) is one of the NDPP's powers of control over the way in which the DPPs exercise their powers of prosecution - the others are described in the other paragraphs of section 179(5);
(b) the aim of section 179(5)(d) is to protect the DPPs' autonomy;
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(c) that is a legitimate purpose;
(d) the means by which section 179(5)(d) seeks to achieve this purpose is by ensuring that any reviews of the DPPs' decisions by the NDPP are taken openly, i.e. after consulting the relevant DPP and taking representations from at least the accused and the complainant;
(e) these means are rationally related to the end that section 179(5)(d) seeks to achieve;
(f) the rights to equality before the law and to equal protection and benefit of the law in section 9 of the Constitution, consequently do not require that section 179 be "interpreted" so as to "include" any "excluded" classes of reviews of prosecution decisions (cf. Harksen v Lane NO and Others 1998 (1) SA 300 (CC) para 43); and
(g) the basis of this Court's "gross inequality" finding, is its mistaken premise that the aim of section 179(5)(d) is to afford "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" (paragraph 106 of the Judgment). This premise is mistaken because, amongst other things:
· even in reviews which entail the substitution of a decision to prosecute for an earlier decision not to prosecute, section
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179(5)(d) does not apply if the NPA official undertaking the review is someone other than the NDPP, e.g. when a DPP reverses his own decision, or a DPP overrules a prosecutor's decision, or a prosecutor reverses his own decision;
· section 179(5)(d) requires consultation with the complainant before the NDPP reviews a DPP's decision not to prosecute, i.e. the NDPP decides to institute a prosecution (thereby "benefiting" the complainant); and
· section 179(5)(d) requires consultation with the accused before the NDPP reviews a DPP's decision to prosecute, i.e. the NDPP decides to stop a prosecution (thereby benefiting the accused).
3. Third ground of appeal:
This Court erred in holding that references to the NDPP and the Deputy NDPPs should be read into the National Prosecuting Authority Act 32 of 1998 ("the NPA Act") "to extend the group that presently appears to be limited to DPPs", because that "would be eminently consistent with the constitution and would define with sufficient precision the group involved"; and in apparently holding if that is done section 179(5)(d) of the Constitution will apply to reviews by the NDPP of decisions to prosecute taken by the NDPP himself, the Deputy NDPPs and the DPPs (paragraphs 125 and 126 of the Judgment).
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In amplification of this ground of appeal, but without limiting its generality, the NDPP asserts that:
(a) reading in is a constitutional remedy open to a court with constitutional jurisdiction which has found that legislation is unconstitutional and which can define with sufficient precision how the statute ought to be extended in order to comply with the Constitution (National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) paras 64 to 76);
(b) in the present case there was no attack on the constitutionality of the NPA Act and no finding that it was unconstitutional;
(c) in any event, an amendment to the NPA Act, by means of a reading in, to extend the class of DPPs to include the NDPP and the Deputy NDPPs, has no bearing on the interpretation of a provision of the Constitution (section 179), which is a different statute entirely - the interpretation of the Constitution cannot be affected by a "remedial" amendment of an ordinary Act of Parliament, even if it is one (like the NPA Act) which the Constitution required be enacted.
4. Fourth ground of appeal:
This Court erred in not considering and upholding the NDPP's alternative contention that the interpretation of section 179(5)(d) of the Constitution
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contended for by the applicant does not avail him for the following reasons:
(a) if the decision of the National Prosecuting Authority ("NPA") to prosecute the applicant constituted a review of the Ngcuka decision in terms of s 179(5)(d) of the Constitution (which, reasons given in paragraph 1(a) above, the NDPP does not concede), then it was in any event done by the Pikoli decision of June 2005. That was the decision which reversed the Ngcuka decision not to prosecute the applicant;
(b) the Pikoli decision was implemented but the resultant prosecution was terminated when Msimang J struck the case from the roll in September 2006;
(c) nothing remained of the Ngcuka and Pikoli decisions thereafter. The Ngcuka decision was overturned by the Pikoli decision. The Pikoli decision was in turn spent and no longer had any effect when the case was struck from the roll in September 2006;
(d) consequently, when the NPA again decided to prosecute the applicant in December 2007, it was a fresh decision taken de novo. It was not a review of an earlier decision to prosecute or not to prosecute. It was accordingly not a decision subject to s 179(5)(d) of the Constitution.
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5. Fifth ground of appeal:
This Court erred in holding that in August 2003 Mr Ngcuka and Mr McCarthy overruled the decision of the investigation team and that the investigation team was probably headed by a DPP (paragraph 117 of the Judgment); and that when Mr Mpshe consulted with the investigation team in the second half of 2007 it was headed by a DPP (paragraph 120 of the Judgment).
In amplification of this ground of appeal, but without limiting its generality, the NDPP asserts that:
(a) there was no evidence before this Court that the investigation team had the power to make a decision, or purported to make a decision in 2003, as to whether or not the applicant should be prosecuted;
(b) on the contrary, it was common cause between the parties that the investigation team made a recommendation to Mr Ngcuka and Mr McCarthy who in turn, contrary to that recommendation, decided that the NPA should not prosecute the applicant (cf. paragraphs 30 to 32 of the NDPP's answering affidavit; paragraph 20(a) of the applicant's replying affidavit);
(c) there was no evidence before this Court that the investigation team was headed by a DPP;
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(d) on the contrary, although the investigation was declared and extended from time to time by an Investigating Director, as required by section 28 of the NPA Act, it was common cause between the parties that Adv. W J Downer SC was the head of the investigation team (cf. paragraph 19 of the NDPP's answering affidavit; paragraph 18 of the applicant's replying affidavit) and there was no evidence that Adv. W J Downer SC was an Investigating Director;
(e) in fact, Adv. W J Downer SC is not an Investigating Director but a Deputy DPP in the Office of the DPP: Western Cape who has been designated as a member of the investigation team in this matter.
B. ADMINISTRATIVE ACTION
6. Sixth ground of appeal:
This Court erred in holding that the Pikoli decision and the current decision were administrative action justiciable under the Promotion of Administrative Justice Act 3 of 2000 ("PAJA") (paragraphs 48, 57 to 66 and 243 of the Judgment).
In amplification of this ground of appeal, but without limiting its generality, the NDPP asserts that:
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(a) PAJA specifically excludes from the ambit of "administrative action", "a decision to institute or continue a prosecution" (paragraph (ff) of the definition of "administrative action" in PAJA);
(b) the exclusion applies to every decision to institute or continue a prosecution irrespective of whether or not, but for its exclusion from the ambit of "administrative action", it would be liable to be set aside in proceedings for judicial review brought under section 6(1) of PAJA on one or more of the grounds specified in section 6(2) thereof (which include non-compliance with a mandatory and material procedure or condition prescribed by an empowering provision);
(c) it was common cause that the Pikoli decision and the current decision, were decisions to institute a prosecution against the applicant;
(d) in any event, the applicant expressly disavowed any reliance on PAJA, his counsel saying:
"I accept that this is not a review under PAJA, that's not the point, we're dealing with legality and the rule of legality, and that applies to the prosecution as well" (transcript page 40 line 25 to line page 41 line 2);
and
"We didn't bring an application under PAJA. You see no reference in our papers to PAJA, we don't tell you under which sections of PAJA we're complaining about. Our complaint is plain and simply a constitutional one and one that falls readily under section 106(1)(h) [of the Criminal Procedure Act 51 of 1977], that is, you've got no title to prosecute us" (transcript page 122 lines 14 to 18);
and
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"Our case that we brought is based on constitutionality and legality. And M'Lord will see that in paragraph 164 [of the applicant's founding affidavit] when we speak about a legitimate expectation et cetera, we make the point that even if that does not fit the mould or the conclusion that the decision to prosecute me was unlawful, such conclusion for purposes of section 33 of the Constitution remains sound based on the facts and circumstances relied upon hereinbefore the relief sought and the notice of motion is then still the appropriate relief, even on this basis. It was not lawful to make the decision to prosecute me without giving me an opportunity to make the ... (inaudible - voice drops). And M'Lord, that has got nothing to do with PAJA, that has to do with the principle of legality" (transcript page 124 line 24 to page 125 line 9).
7. Seventh ground of appeal:
This Court erred in holding that the audi alteram partem principle and the right to procedurally fair administrative action required that Mr Pikoli and Mr Mpshe give the applicant adequate notice of the nature and purpose of, and a reasonable opportunity to make representations in relation to, the proposed exercise of their discretion to change the Ngcuka decision not to charge the applicant to one prosecuting the applicant (paragraphs 47 to 52 of the Judgment).
In amplification of this ground of appeal, but without limiting its generality, the NDPP asserts that:
(a) the applicant cannot rely directly on the right in 33(1) of the Constitution to "administrative action that is ... procedurally fair" because section 33(3) provides that national legislation must be enacted to give effect to the right. Parliament has done so by the enactment of PAJA and Constitutional Court has repeatedly held that
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litigants must now bring their claims under PAJA and may no longer do so directly under section 33(1) of the Constitution (Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) paras 25 to 27; Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC) paras 99 to 100; Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC) paras 93 to 97 and 431 to 438; Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province, and Others 2007 (6) SA 4 (CC) paras 36 to 37);
(b) this Court erred in not considering and upholding the NDPP's argument that, in any event, the element of procedural fairness in question (the audi alteram partem principle) does not apply to a decision to prosecute, i.e. the prosecuting authority does not have to afford a suspect a hearing before deciding to prosecute him because that decision is merely a preliminary decision that leads to a full and formally organised hearing (the criminal trial) which must be fair and in which the accused has a full opportunity to participate (Wiseman v Borneman [1971] AC 297 (HL) 308E-G ([1969] 3 All ER 275 (HL) 277i to 278b); De Ville Judicial Review of Administrative Action in South Africa (2003) 241 to 242; Meyer v Law Society, Transvaal 1978 (2) SA 209 (T) 214F to H; Meyer v Prokureursorde van Transvaal 1979 (1) SA
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849 (T) 855G to 856E; Huisamen and Others v Port Elizabeth Municipality 1998 (1) SA 477 (E) 482E to F; Park-Ross v Director: Office for Serious Economic Offences 1998 (1) SA 108 (C) paras 23 and 24; Simelane and Others NNO v Seven-Eleven Corporation SA (Pty) Ltd and Another 2003 (3) SA 64 (SCA) paras 17 and 22 read with para 16).
C. LEGITIMATE EXPECTATION
8. Eighth ground of appeal:
This Court erred in holding that the statement by Mr Ngcuka in paragraph 25 of his 23 August 2003 press statement (annexure "D" to the applicant's founding affidavit) - namely "...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" - obliged Mr Ngcuka's successors, Mr Pikoli and Mr Mpshe to afford the applicant an opportunity to make representations before deciding to prosecute him because Mr Ngcuka's statement gave the applicant a legitimate expectation of making representations before Mr Ngcuka's decision not to prosecute him was reversed (paragraphs 128 to 131, 138 to 147, 217, 223 to 231 of the Judgment).
In amplification of this ground of appeal, but without limiting its generality, the NDPP asserts that:
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(a) there is no general and free-standing rule of law which says that everybody with a legitimate expectation of a hearing is entitled to be heard for that reason alone;
(b) the requirement that people with a legitimate expectation be afforded a hearing, is one of the requirements of fair "administrative action";
(c) the requirements of fair administrative action are codified in s 3(1) of PAJA;
(d) PAJA has no application in the present case because the decisions to prosecute are not administrative action and the applicant specifically disavowed any reliance on PAJA;
(e) consequently, it is irrelevant whether the applicant had an expectation of a hearing or not;
(f) in any event, for an expectation to be legitimate, the representation underlying the expectation must be clear, unambiguous and devoid of relevant qualification (National Director of Public Prosecutions v Phillips and Others 2002 (4) SA 60 (W) para 28; South African Veterinary Council and Another v Szymanski 2003 (4) SA 42 (SCA) para 19);
(g) Mr Ngcuka's statement was not a clear and unambiguous representation that the applicant would be afforded a hearing before a decision to prosecute him was taken. It was an invitation to make
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representations coupled with an undertaking to consider any representations that might be made. It was not an undertaking not to take a decision to prosecute the applicant without first inviting him to make representations.
9. Ninth ground of appeal:
This Court erred in holding that on 12 October 2007 Mr Mpshe refused to consider any representations that the applicant might make (paragraphs 127 to 134 and 224 of the Judgment).
In amplification of this ground of appeal, but without limiting its generality, the NDPP asserts that:
(a) Mr Mpshe's letter of 12 October 2007 was a response to a written request made to him the previous day by the applicant's attorney that the applicant be afforded an opportunity to make representations during the conduct of the review of the applicant's case which, the applicant's attorney said, "it had been reported that your office is intent on engaging in";
(b) Mr Mpshe's response in his letter of 12 October 2007 was that that the applicant's case was not the subject of a review, that it was still being dealt with by the DSO (i.e. not by Mr Mpshe's office) and that it was
"undergoing further investigations [which is] the normal route for a decision to be taken";
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(c) this Court erred in holding that the "only implication" to be drawn from Mr Mpshe's letter of 12 October 2007 "is that it was a refusal to consider any representations";
(d) another, more natural, implication of the letter was that any representations that the applicant might decide to make should be addressed to the DSO, not to the office of the NDPP (Mr Mpshe's office);
(e) in any event, the applicant did not allege that Mr Mpshe's letter of 12 October 2007 was a refusal to consider any representations - instead, he described it as "laconic" and "at the very least ... enigmatic" and then when onto make the different allegation that it would "clearly have enhanced the credibility and impartiality of the decision to prosecute or not if it had been taken after hearing representations and if feasible prior to the Polokwane elections" (paragraph 125 of the founding affidavit p. 75);
(f) accordingly, the attention of the NDPP and his legal representatives was not directed to an allegation that Mr Mpshe's letter of 12 October 2007 was a refusal to consider any representations;
(g) had the point been spelt out in the founding papers, the NDPP, duly alerted, could have responded fully on fact and on law;
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(h) consequently, this Court should not have made any finding in relation to that matter (Administrator, Transvaal, and Others v Theletsane and Others 1991 (2) SA 192 (A) 195H to 197D; Government of the Province of KwaZulu-Natal and Another v Ngwane 1996 (4) SA 943 (A) 948J-949D).
D. FINDINGS IN RELATION TO THE NATIONAL EXECUTIVE
10. Tenth ground of appeal:
This Court committed an irregularity, alternatively erred, in holding that:
10.1. there should be a commission of enquiry into the allegations of widespread corruption relating to the arms deal involving very senior figures in the government from the then President of the Republic of South Africa Thabo Mbeki downwards (paragraphs 24 to 36 of the Judgment);
10.2. the decision of Mr Mbeki to dismiss the applicant from his office as Deputy President of the Republic of South Africa was unfair and unjust because the applicant had not been given a chance to defend himself in a court of law (paragraphs 155 to 158 of the Judgment); and/or
10.3. the decision of Mr Mbeki to stand for the leadership of the African National Congress ("ANC") at the ANC's December 2007
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conference in Polokwane was, "at its lowest", "controversial and not in accordance with the Westminster system we espouse in this country" (paragraphs 170 to 173 of the Judgment).
In amplification of this ground of appeal, but without limiting its generality, the NDPP asserts that:
(a) none of the findings described in paragraphs 10.1 to 10.3 above were issues raised for decision by the parties;
(b) none of those issues were material to the resolution of the case;
(c) this Court was accordingly not acting in pursuance of its duty to resolve the dispute between the parties.
11. Eleventh ground of appeal:
This Court committed an irregularity, alternatively erred, in making the findings referred to in paragraphs 10.1, 10.2 and 10.3 above and in making the further findings:
11.1. that the involvement of the former Minister of Justice Penuell Maduna in the events leading to the August 2003 decision by the former NDPP Bulelani Ngcuka not to prosecute the applicant despite there being a prima facie case of corruption against the applicant, and in the events leading to Mr Ngcuka's May 2004 decision to withdraw the charges against Thomson-CSF (Pty)
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Ltd (now Thint (Pty) Ltd), was most regrettable and constituted a serious criminal offence (paragraphs 187 to 196 of the
Judgment);
11.2. that the engagements of the NPA and the prosecution team with the Director-General in the Presidency Frank Chikane are a "cause for concern given the constitutional imperative of independence" (paragraphs 197 to 199 of the Judgment);
11.3. that there was political interference from Mr Mbeki during December 2007 when the current Acting NDPP Mokotedi
Mpshe SC was contemplating charging the applicant (paragraphs 200 to 210 of the Judgment); and/or
11.4. in effect, that Mr Ngcuka and Mr McCarthy decided not to prosecute the applicant in August 2003, that Mr Ngcuka's
successor as NDPP Mr Pikoli and Mr McCarthy decided to prosecute the applicant in June 2005 and that Mr Mpshe and Mr McCarthy decided to prosecute the applicant in December 2007, because of "political meddling" by Mr Mbeki and members of his Cabinet, namely Dr Maduna and the current Minister of Justice Ms Mabandla (see especially paragraphs 174 to 175, 187 to 210, 213 to 216, 218 to 220, 229 and 237 to 241 of the Judgment).
In amplification of this ground of appeal, but without limiting its generality, the NDPP asserts that:
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(a) the applicant sought the orders reviewing and setting aside the decisions to prosecute him taken in June 2005 (the Pikoli decision) and December 2007 (the current decision) and the indictment served on him in December 2007, on limited grounds. His grounds of attack were based on and limited to legal submissions arising from the common-cause fact that the NDPP did not take representations from him before taking those decisions. His causes of action were as follows:
· the applicant contended that the Pikoli decision and the current decision were decisions of the NDPP taken on review within the meaning of s 179(5)(d) of the Constitution and s 22(2)(b) of the NPA Act, but that the NDPP failed to follow the procedures prescribed by those sections (paragraphs 8 to 9, 58, 99 and 157 of the founding affidavit);
· the applicant contended in the alternative that the NDPP's failure to afford him an opportunity to make representations before the current decision, "was unlawful, unreasonable or procedurally unfair within the parameters of s 33 of the Constitution, alternatively offends the principle of legality". He contended that he had a legitimate expectation that he would be afforded a hearing before the current decision was taken (paragraphs 10, 90 to 95, 160 and 164 of the founding affidavit);
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(b) in his founding affidavit the applicant expressly disavowed any reliance on accusations or inferences of political interference (which necessarily imply bad faith) for the relief he sought:
· "...I am not at this stage impugning the (current) decision itself based on inter alia the reasons and motives for the decision; that will be addressed in another application if needs be" (paragraph 10 of the founding affidavit); and
· "In dealing with [the events leading up to the present prosecution] I shall endeavour to steer away in so far feasible from contentious issues such as the political motives and stratagems which I verily believe were and are the driving forces behind many of the actions of the prosecuting authorities and those who influence these. This avoidance must not be construed in any manner as an acceptance by myself that the process was regular and not tainted by political motives, stratagems, considerations and undertones. Should the present application not result in a positive outcome in respect of a re-appraisal of the decision to prosecute, a permanent stay application will be brought in which these issues and the impact on my fair trial rights will be addressed in detail" (paragraph 18 of the founding affidavit);
(c) despite this disclaimer and the limited factual and legal bases for the application, the founding affidavit contained numerous accusations of bad faith which were not only entirely irrelevant to the applicant's causes of action but in many instances were based on hearsay evidence or no evidence at all. The NDPP consequently brought the application to strike out those parts of the founding affidavit (to which the applicant responded with, amongst other things, an application to strike out certain of the allegations in the affidavit supporting the NDPP's application to strike out);
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(d) the applicant's counsel thereafter delivered written submissions in relation to the application as a whole in which, for the most part, they did not seek to make anything of the accusations of bad faith. The only submission based on the accusations of bad faith was the rather muted claim that the Pikoli decision and the current decision "took place against an implied Presidential instruction" and consequently a "call for representations [from the applicant before those decisions were taken] would at least in some measure have promoted the freedom from political influence required" (paragraph 106(a) of the applicant's written submissions);
(e) in the NDPP's written submissions in relation to the application to strike out, the NDPP's counsel submitted that there was no evidence to support the applicant's counsel's incorrect submission that the NPA decided to prosecute the applicant because of "an implied Presidential instruction" (paragraph 4 of the NDPP's written submissions). The NDPP's counsel then said:
"If the oral argument to be presented by Zuma's counsel is consistent with their written submissions as far as the allegations of bad faith are concerned, it will not be necessary for this Court to determine and make any order in relation to the application to strike out. It can simply ignore the allegations of bad faith. If however in oral argument Zuma's counsel change tack and seek to rely on any of the allegations of bad faith, the state will renew the application strike out and argue it as a whole or, if the situation permits it, those aspects of the application which are necessary to deal with the submissions of bad faith advanced by Zuma's counsel" (paragraphs 5 and 6 of the NDPP's written submissions);
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(f) shortly before the start of the hearing of this application on 4 August 2008, the applicant delivered supplementary written submissions in relation to the application as a whole. The parts of these submissions directly relating to the accusations of bad faith are as follows: "The Prosecution must act fairly and within the constraints of the Constitution, the NPAA, the Code, the Policy, the Guidelines and the common law in exercising a discretion to prosecute. This is especially the case where such discretion requires the reversal of a decision of the ilk of the 2003 decision. That decision was left to stand undisturbed for 2 years. It was then reversed in circumstances which smack of political pressure (without contending that it was actually inspired by that)" (paragraphs 33(a) to (c) of the applicant's supplementary written submissions, emphasis added).
"Zuma's insistence on political motives influencing the decision making of the NPA and especially the NDPP as evidenced by the timing and content of his dismissal by his political rival President Mbheki (sic) and the Pikoli decision. They are engaged in a bitter political battle at this time for the political leadership of the country.
Political influence in prosecutorial decisions must be avoided as a matter of law (see: UN Guidelines). In short, if there is ever a time to demonstrate this, this is the time" (paragraph 33(i)(iv) of the applicant's supplementary written submissions).
"The NDPP Mpshe has been appointed in the place of the suspended Pikoli following a fall-out with the Government of President Mbheki (sic) as to his prosecution of Mr Selebi. He is a direct appointee of the very President with whom Zuma is engaged in a struggle for the leadership of the ANC. Some time shortly after Zuma wins the political leadership of the ANC at Polokwane in mid-December, Mpshe decides to prosecute him and announced this to the world by charging him on 28 December 2007. At no stage from October 2007 till 28 December 2007, does he invite or inform Zuma to make representations as Zuma requested. There is no explanation for this.
It is submitted that in these circumstances there was a clear legal obligation on the NPA to allow Zuma a hearing before reversing the 2003 decision of Ngcuka" (paragraphs 33(i)(vi) to 35 of the applicant's supplementary written submissions).
"The duty to act fairly and without political influence in a manner so as to instil confidence in the prosecution process required that Zuma be given the hearing he asked for prior to the Mpshe decision being taken in the light of the facts and circumstances set outlined (sic)
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above" (paragraph 40 of the applicant's supplementary written submissions);
(g) at the hearing of this application on 4 and 5 August 2008, the parties were agreed that it was not necessary for this Court to determine the correctness of the applicant's allegations of bad faith. The relevant parts of the oral argument addressed to this Court were as follows:
· shortly after starting his main address, the applicant's counsel said the following in relation to the applications to strike out (which was his only submission in relation to that application):
"Now M'Lord, the striking out applications have now actually been laid to rest between us on the basis that M'Lord will consider all the material and if there's anything that M'Lord after hearing the arguments considers to be irrelevant or that shouldn't be there, M'Lord, will simply disregard it in making M'Lord's decision" (transcript page 3 lines 10 to 14);
· during the course of his address, the applicant's counsel only argument in relation to his client's allegation of a political conspiracy against him was the following:
"One firstly has here, that the decision not to prosecute was left undisturbed for two years. It was reversed in circumstances which we contend may readily give the impression that there was political influences at work. And, M'Lord, we do not contend in this matter that it necessarily had an effect on the decision, we're simply saying that is what the situation was and you must decide the right to a hearing also I (sic, "in") the light of that circumstances. Those we say are simply relevant circumstances. We say the mere existence of the whole political conspiracy, the whole political pressures scenario that existed, is relevant. We're not saying in this application that it did happen. So M'Lord, I just want to make
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that very clear, that wasn't the case we're making out. And, M'Lord, if one looks at one happens is, Mr Shaik is convicted in early June 2005, Mr Zuma gets dismissed as Deputy President by the President on, I think, 14 June or somewhere there, in the statement the President says that it is for him to have his day in court, six days later the decision comes that he's going to be prosecuted. Now, M'Lord, all that I'm saying to M'Lord is, one can see how from a certain perspective one draws a link between those events. Because what if he is not going to be prosecuted, what was he then dismissed for? He's not going to have a day in court. And, M'Lord, what he's saying is, one must now decide in the light of all of this, whether the code requires a hearing or not. Because M'Lord will recall that the code and the - I think the policy and indeed the United Nations Guidelines was also part of it, they all say obviously that decisions of this ilk(?) should be made free of political influence and pressures. All that we're saying is, if you look at the circumstances, and M'Lord let's use the test when one talks about bias, not actual bias but can it perhaps that - to be a reasonable apprehension. Now what we then see is that Mr Zuma is then charged in all haste and the indictment that he's charged with which is served on him in November, four/five months later, it's exactly the same as the Shaik one, same witnesses, et cetera. And then Mr Justice Msimang holds in a judgment that can either mean one of two things, one, you charged him when you shouldn't have charged him because you were not ready, or you should not have charged him at all, so - at that stage.
So, M'Lord, those are the circumstances and that is what is held when we come to court. It then states, the NPA then says, "Well you know, we're not sure whether we're going to charge you or not.", M'Lord has seen the excepts that we've put from the litigation, where the NDPP says, "Well I may charge you or I may not charge you, I'm - I don't know, I'm still making up my mind.". Then, M'Lord, shortly before Polokwane, in October, Mr Zuma writes a letter and he says, in the last sentence of that, "Well you know, we want to make representations.". M'Lord must read that in the light also of the fact that the prosecution now ... (indistinct) that he asserts firstly, that he's got a right to be heard. And secondly, that the Msimang judgment considered the earlier decision to be premature and perhaps not carefully enough made. The prosecution no doubt also, M'Lord, is aware of the sentiments expressed like in the ATTORNEY-GENERAL v BLOM case, where it says that a hearing after the decision is no substitute for the hearing before the decision. That all they know, they know about the fact that Mr Zuma has consistently said that he is of the view that there is a political agenda behind his
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prosecution, and they are also aware, M'Lord, that he has contended that there are no actual real pieces of evidence that has emerged since 2003. And, M'Lord, once again, one doesn't have to go into the issue whether he's right or wrong
about it, what I'm putting to M'Lord, this is now the circumstances in which you have to comply with the code..."
(transcript page 41 line 17 to page 43 line 21, emphasis added);
· in his address, the NDPP's counsel made extensive submissions to the effect that neither the common law, nor the rights to administrative justice or a fair criminal trial in sections 33 and 35 of the Bill of Rights in the Constitution, nor the Promotion of Administrative Justice Act 3 of 2000 ("PAJA"), gives an accused a right to be heard before a decision is taken to prosecute him or her (transcript page 55 line 15 to page 61 line 23);
· in his address, the NDPP's counsel also made extensive submissions to the effect that the applicant's claim that he had a legitimate expectation was bad in law and bad on the facts (transcript page 61 line 24 to page 68 line 24);
· however, like the applicant's counsel, the NDPP's counsel did not make any submissions about the correctness of the accusations of bad faith (the alleged political conspiracy) in the applicant's founding affidavit;
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· the NDPP's counsel concluded his address with the following statements in relation to costs, including the costs of the
applications to strike out:
"M'Lord, there's lastly the question of costs. We agree that it is not necessary to consider and decide the application to strike out, because the defence made nothing of the material to which we objected. We do submit, however, that the fact that nothing is made of that material, illustrates and highlights our contention that the allegations were scurrilous and irrelevant to the causes of action raised by the defence, raised by the accused. Those allegations are very serious allegations and they are raised again and again, apparently for public consumption, because they have no bearing on causes of action and they are not relied upon when the causes of action are argued. So that we do not ask - we do not suggest that it is necessary for the Court to determine the application to strike out, but we do submit that the Court should firstly award the State not only the costs of the main application, but also the costs of the application to strike out. And, M'Lord, we submit that the objectionable material and their inclusion in this application for the - I don't know how often it's been done before, but in every application these allegations get repeated whether relevant or not, they deserve review and we suggest that the Court should, with respect rebuke the applicant for including his application quite unnecessarily and apparently for ulterior purpose, the serious allegations often based on no evidence at all" (transcript page 108 line 13 to page 109 line 7);
· in his reply, the applicant's counsel's made no submissions concerning the alleged political conspiracy, and his only submissions in relation to the applications to strike out were the following:
"M'Lord, my learned friend has mentioned some hurt feelings about some certain things that were said, M'Lord, M'Lord we say that those things are germane, we tried to establish why they were - why we say they're germane in the heads, we will
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not travel that road again. There have also been things said on the other side which we look upon less than kindly, but there is no point in having a squabble about this - that in this court, M'Lord" (transcript page 129 lines 4 to 9);
(h) at the meeting in chambers with Nicholson J on 15 August 2008 concerning the timetable for the further conduct of this matter, following an enquiry from Nicholson J and a brief discussion, the parties' legal representatives agreed that they could not settle their differences concerning the applications to strike out;
(i) none of the issues described in paragraphs 10.1 to 10.3 above or paragraphs 11.1 to 11.4 above were issues canvassed by counsel in their written or oral submissions to this Court, save for the limited submissions by the applicant's counsel in relation to their client's allegation of a political conspiracy against him quoted in paragraphs (d), (f) and (g) above;
(j) together, the findings described in paragraphs 10.1 to 10.3 above and paragraphs 11.1 to 11.4 above constituted a substantial portion of this Court's judgment;
(k) this Court did not first invite counsel to submit argument either for or against the making of such findings;
(l) it is undesirable for a Court to deliver a judgment with substantial portions containing issues never canvassed by counsel (cf. Kauesa v Minister of Home Affairs and Others 1996 (4) SA 965 (NmS) 973IZUMA SECTION 179 REVIEW: APPLICATION FOR LEAVE TO APPEAL
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974A; Welkom Municipality v Masureik and Herman t/a Lotus Corporation and Another 1997 (3) SA 363 (SCA) 371G-H; Groenewald NO and Another v Swanepoel 2002 (6) SA 724 (E) 726F-I; Creative Car Sound and Another v Automobile Radio Dealers Association 1989 (Pty) Ltd 2007 (4) SA 546 (D) para 15);
(m)such findings are based on or amount to inferences of misconduct and bad faith on the part of the NDPP;
(n) this Court violated the audi alteram partem principle by drawing inferences of misconduct or bad faith against the NDPP without affording him an opportunity to respond to them; and
(o) in any event, such findings are irrelevant both to the substantive relief sought and to the dispute about the applications to strike out that remained at the end of the oral argument:
· In relation to the substantive relief sought, the only question for decision was whether the applicant had a right to a hearing before a decision was taken to charge him. He either had such a right or not. The fact of political interference could not give him such a right if he did not have one anyway. Where a person has a right to be heard, he is entitled to a hearing whether or not he has anything to say which might influence the decision (Administrator, Transvaal, and Others v Zenzile and Others 1991 (1) SA 21 (A) 37C-F). The converse should
[31]
also be true. Even if a person has a lot to say, he does not by virtue of that fact alone acquire a right to be heard.
· The dispute about the applications to strike out that remained at the end of the oral argument and after the later discussion in Nicholson J's chambers, was confined to whether or not this Court should award the NDPP the costs of the applications and rebuke the applicant for including in his founding affidavit numerous accusations of bad faith, while disavowing in his affidavits and argument before this Court any reliance on the correctness of those allegations as a basis for the substantive relief sought.
12. Twelfth ground of appeal:
This Court erred in holding that the decision by Mr Ngcuka not to prosecute the applicant despite there being a prima facie case of corruption against the applicant, and Mr Ngcuka's public statement to that effect on 23 August 2003, were bizarre and unconstitutional and brought justice into disrepute (paragraphs 147 to 155 of the Judgment).
In amplification of this ground of appeal, but without limiting its generality, the NDPP asserts that:
(a) a decision to prosecute may be taken only if it is reasonable to conclude from the evidence that can be adduced by the State that the
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accused is probably guilty of the offence charged (Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) 135-6, as approved and applied in, amongst others, Prinsloo and Another v Newman 1975 (1) SA 481 (A) 495H and S v Lubaxa 2001 (4) SA 1251 (SCA) para 19);
(b) consequently the NPA's Prosecution Policy provides:
"In deciding whether or not to institute criminal proceedings against an accused, prosecutors should assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution. There must indeed be a reasonable prospect of a conviction, otherwise the prosecution should not be commenced or continued" (see also paragraph 4(a) of the Prosecution Policy (annexure H to the applicant's founding affidavit));
(c) Mr Ngcuka's explanation of his decision in the 23 August 2003 media statement - namely "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" - is capable of an interpretation consistent with that principle, namely that notwithstanding the existence of a prima facie case against the applicant (as set out in the draft indictment which would soon be in the public domain), Mr Ngcuka decided that there was not a reasonable prospect of a successful prosecution against the applicant;
(d) this Court incorrectly failed to consider, alternatively incorrectly rejected out of hand without giving any reasons for doing so, the following explanations in the respondent's papers for Mr Ngcuka's decision and his 23 August 2003 media statement:
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"The investigation team recommended that the NPA should also prosecute the applicant. Mr Ngcuka and Mr McCarthy however took a different view. They decided and Mr Ngcuka announced on 23 August 2005 (sic) that, notwithstanding the existence of a prima facie case against the applicant, there was not a reasonable prospect of a successful prosecution against him. Mr Ngcuka made it clear, however, that this decision would be reconsidered should further evidence come to light" (paragraph 30.2 of the respondent's main answering affidavit by Senior Special Investigator Johan du Plooy, emphasis added).
"After having been given a detailed briefing by the investigation team, Ngcuka stated that whilst there was a prima facie case of corruption against Zuma the NPA's ‘prospects of success are not strong enough.
That means that we are not sure if we have a winnable case'. Ngcuka tested his decision with a senior counsel in private practice who is very skilled in these types of matters, and he concurred with the decision.
In view of the fact that Zuma is now to be tried for corruption and a more detailed explanation in this affidavit of Ngcuka's reasons for the decision may prejudice the prosecution, I shall refrain from saying anything further about those reasons" (paragraph 31 of Mr Du Plooy's affidavit, quoting paragraph 53 of Adv Leonard McCarthy's affidavit in the 2006 stay of prosecution and postponement proceedings, emphasis added).
"... [T]he outcome of the investigation became, as Accused No 1 notes in his affidavit, a matter of intense public speculation. In light of his then position of Deputy President, it was also a matter of national interest. I therefore deemed it necessary to publicly announce and explain the decision to which I had ultimately come, after long and anxious
consideration."
and
"I knew that this document [the draft indictment against Shaik] would be in the public domain when the draft charge sheet was served on Shaik on the following Monday. What I felt obliged to explain to the public, therefore, was the reason why, despite the prima facie case disclosed by the indictment, I had nevertheless come to the conclusion that I was not able to prosecute Accused No 1" (paragraph 32 of Mr Du Plooy's affidavit, quoting paragraphs 32 and 34 of Mr Ngcuka's affidavit in the 2006 stay of prosecution and postponement proceedings, emphasis added);
(e) as the applicant was seeking final relief in motion proceedings and none of the respondent's explanations is far-fetched, clearly untenable
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or palpably implausible, this Court should have accepted respondent's allegations and rejected the applicant's contentions to the contrary.
The respondent's explanations, read together, show, first, that Mr Ngcuka applied the correct test when deciding not to prosecute the applicant, secondly, that Mr Ngcuka gave the "prima facie but not winnable case" explanation in his 23 August 2003 media statement (quoted in paragraph (c) above) in order to explain why the applicant was not being prosecuted despite what was alleged in the draft indictment, which would soon be in the public domain and, thirdly, that Mr Ngcuka was constrained as to what he could say in that explanation by the fact that a more detailed explanation may prejudice the prosecution of Mr Shaik;
(f) an example of the sort of difficulty that influenced M Ngcuka's decision not to prosecute the applicant with his co-conspirators - doubt about the admissibility of evidence against the applicant - is mentioned by Mr Du Plooy in paragraph 196 of his answering affidavit in this matter.
It was also mentioned as a possible reason for the Ngcuka decision by Mr Du Plooy in paragraph 55.2.7 of his answering affidavit for the respondent in the application brought by Mr Shaik for leave to appeal to the Constitutional Court (case number CCT 86/06) against the Supreme Court of Appeal's decisions on his appeals against his conviction and sentence in the Durban and Coast Local Division of the High Court:
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"One of the factors that a prosecutor is enjoined to take into account in considering whether any reasonable prospects of a successful prosecution exist, is the admissibility of evidence (see the NPA's Policy Directives ... para 4(b) s.v. ‘Will the evidence be admissible?'). Take, for instance, the so-called ‘encrypted fax', which was an important piece of evidence for the State, and was drafted by Thétard. Thétard fled to France and was not available to be called as a witness. It consequently constituted hearsay against the other suspects.
However, it also formed part of the company records kept by Thomson-CSF (Pty) Ltd and would accordingly be admissible against the company and its directors (including [Shaik]) in terms of section 332 of the CPA. The same applies to numerous other Nkobi and Thomson group documents. This ground of admissibility would not have applied in respect of Zuma, which would have rendered the admissibility of these documents vis-à-vis Zuma less certain in the eyes of the NDPP at that time. As it transpires, the ‘encrypted fax' was held to be admissible by the High Court as an ‘executive statement' and the SCA found that it was admissible on a different basis (i.e. in terms of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 (‘the Evidence Amendment Act'). On either basis it now appears that it would also be admissible against Zuma. This demonstrates one of the many imponderables that the NDPP was required to consider and predict in coming to his decision."
13. Thirteenth ground of appeal:
This Court erred in holding that the involvement of Dr Maduna in the events leading to Mr Ngcuka's August 2003 decision and in the events leading to Mr Ngcuka's May 2004 decision to withdraw the charges against Thomson-CSF (Pty) Ltd, was most regrettable and constituted a serious criminal offence (paragraphs 187 to 196 of the Judgment).
In amplification of this ground of appeal, but without limiting its generality, the NDPP asserts that:
(a) the serious criminal offence to which this Court referred is that described in section 41(1) of the NPA Act, which makes it an offence,
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punishable by a fine or to imprisonment for a period not exceeding 10 years or to both, to contravene section 32(1)(b) (paragraphs 91 and 92 of the Judgment). The latter section provides: "Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions" (emphasis added);
(b) section 179(6) of the Constitution provides in effect that the Cabinet member responsible for the administration of justice (Dr Maduna at the time) must exercise final responsibility over the prosecuting authority;
(c) section 33(2) of the NPA Act provides that to enable the Minister of Justice to exercise his or her final responsibility over the prosecuting authority, as contemplated in section 179 of the Constitution, the NDPP shall, at the request of the Minister, amongst other things: furnish the Minister with information or a report with regard to any case, matter or subject dealt with by the NDPP or a DPP in the exercise of their powers, the carrying out of their duties and the performance of their functions; and arrange meetings between the Minister and members of the NPA;
(d) the applicant did not allege that the involvement of Dr Maduna in the events leading to Mr Ngcuka's August 2003 decision and in the events
[37]
leading to Mr Ngcuka's May 2004 decision to withdraw the charges against Thomson-CSF (Pty) Ltd, was regrettable or constituted a serious criminal offence - the only allegation concerning Dr Maduna made by the applicant is that Mr Ngcuka was "flanked by" him at the press conference on 23 August 2003 (paragraph 36 of the founding affidavit p. 31);
(e) accordingly, the attention of the NDPP and his legal representatives was not directed to either the involvement of Dr Maduna in the events leading to Mr Ngcuka's August 2003 decision or the involvement of Dr Maduna in the events leading to Mr Ngcuka's May 2004 decision to withdraw the charges against Thomson-CSF (Pty) Ltd - because of the absence of any allegations concerning those matters the affidavit Dr Maduna made in the 2006 postponement and permanent stay proceedings was not placed before this Court or quoted in the NDPP's answering affidavit in the present proceedings;
(f) had the points been spelt out in the founding papers, the NDPP, duly alerted, could have responded fully on fact and on law;
(g) consequently, this Court should not have made any findings in relation to either of those matters;
(h) in any event, the papers before this Court support entirely different factual findings and inferences to the adverse factual findings and inferences which this Court made and drew, namely that:
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· a detailed report on the evidence and the facts of the investigation had been handed to Dr Maduna in terms of section 35(2)(b) of the NPA Act (as stated in paragraphs 2 and 11 to 13 of Mr Ngcuka's press statement);
· Mr Ngcuka and Dr Maduna believed that the unstinting support and political leadership Mr Ngcuka referred to at the end of his press statement on 23 August 2003 (annexure "D" to the applicant's founding affidavit)) was permitted by section 179(6) of the Constitution and section 33(2) of the NPA Act; and
· Dr Maduna's role in the events leading to Mr Ngcuka's August 2003 decision and in response to Thint's approaches was not, and was not intended by him to be, an improper interference with, hindrance or obstruction of the NPA in the exercise of its powers.
14. Fourteenth ground of appeal:
This Court erred in holding that the engagements of the NPA and the prosecution team with Mr Chikane are a cause for concern (paragraphs 197 to 199 of the Judgment).
In amplification of this ground of appeal, but without limiting its generality, the NDPP asserts that:
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(a) the statement by Mr Pikoli in paragraph 30 of his affidavit in the 2006 stay of prosecution and postponement proceedings, quoted by this Court in paragraph 197 of the Judgment, is a response to paragraph 30 of the applicant's founding affidavit in the 2006 stay of prosecution proceedings, which must be read with paragraph 29 thereof;
(b) paragraphs 29 and 30 of the applicant's founding affidavit in the 2006 stay of prosecution proceedings read as follows:
"29. Honourable President Mbeki was in his position as the then Deputy President and member of the Cabinet, very much involved in the Arms Deal process. He took an active interest and part in it. He engaged with various of the role-players and other interested parties.
He has been scurrilously accused of being party to improprieties in this regard. I annex a recent report to this effect hereto, and mark it "J".
I distance myself from these and condemn the accusations as false.
However, he is a person who is ideally and obviously suited to depose to the absence of corruption in the award process. Once again, if he does so the prosecution must revisit and rethink the allegations that I was bribed to protect the French interests against exposure for corruption in the arms deal.
30. There is no statement from the President in the docket contents handed to us. Nor is he on the list of witnesses. I have every respect for the office of the President and the need to avoid embroiling the incumbent in litigation. I heed the admonitions of the Constitutional Court in this regard. It is thus the more unfortunate that the prosecution has seen fit not to approach the Presidency to eliminate these areas of accusation from the litigation.";
(c) Mr Pikoli's response thereto (in paragraph 30 of his affidavit in the 2006 stay of prosecution and postponement proceedings) reads as follows:
"It is denied that the prosecution has not approached the Presidency about the matter. The NPA and the prosecuting team have in fact been
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engaging with the Director - General in the Presidency in this regard since February 2006."
(d) consequently, when Mr Pikoli's response is read in context, what he said was that the NPA was trying to obtain a statement from Mr Mbeki about the arms deal process for inclusion in the docket;
(e) in any event, the applicant did not allege that the engagements of the NPA and the prosecution team with Mr Chikane are a cause for concern;
(f) accordingly, the attention of the NDPP and his legal representatives was not directed to the engagements of the NPA and the prosecution team with Mr Chikane;
(g) had the point been spelt out in the founding papers, the NDPP, duly alerted, could have responded fully on fact and on law;
(h) consequently, this Court should not have made any finding in relation to that matter.
15. Fifteenth ground of appeal:
This Court erred in holding that there was political interference from Mr Mbeki at the time Mr Mpshe was contemplating charging the applicant (paragraphs 200 to 210 of the Judgment).
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In amplification of this ground of appeal, but without limiting its generality, the NDPP asserts that:
(a) this Court gave two main reasons for concluding - as the "most plausible inference" (paragraphs 206 and 210 of the Judgment) - that there was political interference from Mr Mbeki at the time Mr Mpshe was contemplating charging the applicant, namely:
· first, Mr Mbeki's suspension of Mr Pikoli as NDPP on 23 September 2007, Mr Mbeki's appointment of Mr Mpshe as the Acting NDPP and the respondent's failure to respond to the allegations in a newspaper article published in the Mail & Guardian on 5 October 2007 (which was one of four newspaper articles attached as annexure Q to the applicant's founding affidavit at pp. 386-7) to the effect that shortly after his appointment Mr Mpshe reviewed South African Police Service Commissioner Jackie Selebi's case because it was politically unpalatable to Mr Mbeki, Mr Mpshe did not do the same with the applicant's case because it was politically palatable to Mr Mbeki and Mr Mpshe cancelled the arrest warrant for Mr Selebi after political interference from Mr Mbeki; and
· secondly, "most unfortunate" "timing of the indictment by Mr Mpshe on 28 December 2007, after the President suffered a political defeat at Polokwane";
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(b) as regards the first reason:
· the allegations in the newspaper article which this Court said the NDPP should have answered, were not made by the applicant or incorporated in his affidavit by reference. The applicant attached the newspaper article to make a different point, namely that the article reported that his case was one of those under "review" by Mr Mpshe and it would be odd and constitute unequal and discriminatory treatment if his case were not "reviewed" and no representations were called for (paragraph 161(f) of the founding affidavit). The NDPP answered this point (paragraphs 260 and 261 of the answering affidavit);
· a respondent in motion proceedings like the present cannot be expected to deal with everything stated in annexures to the applicant's affidavit. A case is not made out by an applicant in motion proceedings by way of allegations in an annexure to the founding affidavit to which the attention of the respondent has not specifically been directed (Port Nolloth Municipality v Xhalisa and Others; Luwalala and Others v Port Nolloth Municipality 1991 (3) SA 98 (C) 111B);
· this Court proceeded on the incorrect bases that an annexure to an affidavit in motion proceedings is an integral part of that affidavit, that there is no obligation upon a party to spell out to his
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adversary any legal inferences or conclusions to be drawn from the facts set out in the annexure and that a party may rely on inadmissible hearsay in a newspaper report;
(c) as regards the second reason:
· the respondent's answering affidavit shows that Mr Mpshe and Mr McCarthy took the decision to prosecute the applicant on 27 December 2007, 16 days after he and Mr McCarthy had received a revised draft indictment, which had been compiled by the prosecuting team after the Supreme Court of Appeal's judgments of 8 November 2007 in favour of the state in the appeals concerning the searches during August 2005 of the premises of the applicant, his attorney Michael Hulley and the Thint companies. These judgments removed the obstacle to proceeding with the prosecution identified by Msimang J in his 2006 judgment refusing the state's request for a postponement;
· another inference, which is at least as plausible as the adverse one drawn by this Court, is that Mr Mpshe and Mr McCarthy took the decision as soon as practically possible after receiving the (complex) indictment;
· in his founding affidavit the applicant specifically refrained from commenting "on the timing and the reasons for the decision by the acting NDPP in December 2007 to prosecute me", saying that
[44]
"[t]his will be addressed in a permanent stay application if required" (paragraph 153 of the founding affidavit);
(d) consequently, this Court should not have drawn any inferences from or made any findings in relation to the fact that Mr Mpshe did not review the applicant's case shortly after his appointment in September 2007 and the fact that he announced the NPA's decision to prosecute the applicant shortly after the applicant's election as President of the ANC at its conference in December 2007;
(e) in any event:
· the papers before this Court contain an emphatic denial that Mr Mpshe and Mr McCarthy took the decision to prosecute the applicant because of political influence from Mr Mbeki. In response to the allegation by the applicant concerning the current decision that "[t]he only reasonable inference to be drawn is one of a grim resolve, irrespective the facts and circumstances, to prosecute me and so prevent my Presidency since the earlier strategy to denounce me in public as a crook did not have this desired effect" (paragraph 154 of the founding affidavit), Mr Du Plooy (the NDPP's deponent) said: "This paragraph is completely unsubstantiated and vehemently denied. It is also entirely irrelevant to the present proceedings" (paragraph 248 of the answering affidavit - Mr Mpshe made an affidavit confirming
[45]
the contents of Mr Du Plooy's affidavit insofar as they related to him); and
· the papers before this Court also show that Mr Mpshe and Mr McCarthy took the decision to prosecute the applicant as soon as practically possible after receiving the revised indictment from the investigating team on 11 December 2007, thus avoiding any unnecessary delay.
16. Sixteenth ground of appeal:
This Court erred in holding, in effect, that Mr Ngcuka and Mr McCarthy decided not to prosecute the applicant in August 2003, that Mr Ngcuka's successor as NDPP Mr Pikoli and Mr McCarthy decided to prosecute the applicant in June 2005 and that Mr Mpshe and Mr McCarthy decided to prosecute the applicant in December 2007, because of "political meddling" by Mr Mbeki and members of his Cabinet, namely Dr Maduna and the current Minister of Justice Ms Mabandla (see especially paragraphs 174 to 175, 187 to 210, 213 to 216, 218 to 220, 229 and 237 to 241 of the Judgment).
In amplification of this ground of appeal, but without limiting its generality:
(a) as regards Mr Ngcuka, the NDPP asserts that:
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· as appears from paragraph 32 of Mr Du Plooy's answering affidavit, in the 2006 stay of prosecution and postponement proceedings the NDPP delivered an affidavit by Mr Ngcuka, part of which was directed at answering an allegation by the applicant that the taking and announcement of the decision to not prosecute the applicant during August 2003 was proof of an ulterior motive on Mr Ngcuka's part, namely that he was a party to an alleged political conspiracy with the sole aim to destroy the applicant's political career and prevent him from becoming president of the country;
· as appears from paragraph 170 of Mr Du Plooy's answering affidavit, the NDPP denied that either the NPA or Mr Ngcuka is part of any political conspiracy against the applicant, as he suggested at p. 883 of the excerpt from his evidence at his trial on a charge of rape (annexure ‘B' to the founding affidavit);
· in the present proceedings Mr Ngcuka made an affidavit confirming the contents of Mr Du Plooy's affidavit insofar as they related to him;
(b) as regards Mr Pikoli, the NDPP asserts that:
· as appears from, amongst others, paragraphs 56, 182 and 188 to 195 of Mr Du Plooy's answering affidavit and from annexure "JDP2" thereto, in the 2006 stay of prosecution and postponement
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proceedings the NDPP delivered an affidavit by Mr Pikoli (annexure "JDP2"), part of which was directed at answering an allegation by the applicant that the taking and timing of the announcement of the decision to prosecute the applicant during June 2005 was proof of an ulterior political motive on Mr Pikoli's part;
· as appears from those paragraphs and from Mr Pikoli's affidavit, the NDPP and Mr Pikoli categorically deny that Mr Pikoli colluded with or briefed Mr Mbeki before deciding to prosecute the applicant and that the charges against the applicant were part of a political conspiracy to remove him as a role player in the ANC;
· in the present proceedings Mr Pikoli made an affidavit confirming the contents of Mr Du Plooy's affidavit insofar as they related to him;
(c) as regards Mr Mpshe, the respondent reiterates paragraph 15 above;
(d) this Court incorrectly failed to consider, alternatively incorrectly rejected out of hand and without giving any reasons for doing so, the emphatic rejections by Mr Ngcuka, Mr Pikoli and Mr Mpshe of the applicant's allegations of a political conspiracy concerning them and their decisions about the applicant's prosecution;
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(e) as the applicant was seeking final relief in motion proceedings and none of those emphatic rejections is far-fetched, clearly untenable or palpably implausible, this Court should have accepted them and rejected the applicant's contentions to the contrary.
TAKE NOTICE that the NDPP seeks the following further relief in this application:
(a) if this application for leave to appeal is granted either wholly or in part, an order that this Court direct that the costs of this application be costs in the appeal; and
(b) such further and/or alternative relief as this Court may deem appropriate.
DATED AT THIS DAY OF SEPTEMBER 2008.
__________________________
A L J STEYNBERG
Deputy Director of Public Prosecutions
Directorate of Special Operations
21st Floor Southern Life Building
88 Fields Street
DURBAN
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c/o The Director of Public Prosecutions
High Court Building
PIETERMARITZBURG
TO: THE REGISTRAR
High Court Building
PIETERMARITZBURG
AND TO: HULLEY & ASSOCIATES
Applicant's Attorneys
2nd Floor Momentum House
Cnr Prince Alfred Street and Ordinance Road
DURBAN
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