JOHANNESBURG - Justice Conrad Seagroatt has suggested that acting National Director of Public Prosecutions, Moketedi Mpshe, was wrong to drop the charges against ANC President Jacob Zuma when he did.

Seagroatt is the now retired Hong Kong judge whose 2002 ruling Mpshe employed, without attribution, to provide the legal rationale for his decision to drop charges against the soon to be inaugurated South African president.

When initially contacted by the journalist Gill Moodie, Seagroatt had described Mpshe's plagiarism of his judgment as "sloppy and undisciplined" based the schedule of extracts published on Politicsweb.co.za. However, at that stage he had not seen the full Mpshe statement itself. In a further email to Moodie, published on the Grubstreet.co.za weblog, Seagroatt made four further criticisms of the NDPP's decision:

Firstly, he noted that his judgment had been overturned by the Court of Final Appeal in Hong Kong. "In the light of this Mpshe should not only have given proper attribution to the passages in my judgement upon which he obviously relied, but should have explained why he relied upon them in preference to the H.K.C.F.A's decision. There was certainly room for him to do so."

Secondly, he stated that the facts of the case he was dealing with were not really applicable to Zuma's situation. Mpshe's "own statement is so limited and sketchy" Seagroatt wrote, "that I find it impossible to identify why he was relying on my judgement. In the Hong Kong case the behaviour of the prosecution which I criticised was its failure to disclose material evidence in relation to an expert witness upon whom it relied as pivotal to its case. The first "whiff" of such evidence did not emerge until the jury were considering their verdicts and I had to stop the trial at that stage - a very rare event. The C.F.A. did not disagree with that decision; in effect they approved it."

Thirdly, and further to this point, Seagroatt notes that "What Mpshe seems to have taken as the justification for his decision was not a material aspect of the trial procedure but a decision made by some branch of the investigative process as to when and where Jacob Zuma should be charged on the basis of political considerations. That is an entirely different scenario. Many might argue that motivation in relation to timing of a charge is very different from manipulation of the evidence available."

Finally, Seagroatt observed, that such decisions are ones best left to a judge to decide. "It is very strongly arguable that [Mpshe] should have let the trial process begin before a judge, leaving the aspect which seems to have dominated his proper role as the prosecutor (the old adage being a ‘prosecutors' job is to prosecute) to be determined by the judge with the N.D.P.P. being entirely candid (as he should be) as to the conduct of the investigative and prosecuting agencies."

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