In justifying his decision to discontinue the prosecution of ANC President Jacob Zuma on fraud, corruption and racketeering charges, acting National Director of Public Prosecutions Mokotedi Mpshe cited an alleged "abuse of process" by Scorpions head Leonard McCarthy as the basis for his decision (see here). In essence, Mpshe alleged that McCarthy and former prosecutions boss Bulelani Ngcuka had conspired with regard to the timing of the laying of charges against Zuma. In Mpshe's view, this abuse of process fatally compromised the integrity of the prosecution and therefore warranted its wholesale abandonment.
In reaching this decision, Mpshe placed particular reliance on a 1991 House of Lords decision, R v Latif, in which the English Court explained the circumstances in which policy considerations relating to the integrity of the criminal justice system would justify the staying of a prosecution (see here). The statement released by Mpshe announcing and accounting for the discontinuation of the prosecution of Zuma paraphrases the reasoning of the House of Lords in Latif and endorses the Court's approach to this issue. Although it has recently emerged that this precedent was reached indirectly - through a 2002 judgment from Hong Kong - a close analysis of Latif itself reveals that Mpshe's reliance on the case as a judicial justification for discontinuing the prosecution of Zuma is misplaced and misleading.
In Latif, it had been alleged by the appellants that the conduct of various law enforcement and customs officials involved in the investigation of the transportation of a heroin consignment from Pakistan to the United Kingdom had effectively amounted to entrapment. The appellants had argued that a Pakistani informer acting for British law enforcement officials had encouraged the first appellant to commit the statutory offence of importing illegal drugs into the United Kingdom. The appellants had also alleged that a British customs official had himself contravened the statutory provision in respect of which the appellants had been charged, in that the customs official had brought the heroin consignment into the United Kingdom. The appellants contended that the conduct of the various officials in each instance amounted to an abuse of process which justified the staying of the prosecution.
Thus, the key issue in Latif was whether the conduct of the law enforcement and customs officials in question constituted an abuse of process which was sufficiently egregious as to justify the court staying the prosecution on the grounds of policy, notwithstanding the fact that the prosecution had a strong case against the appellants.
The House of Lords held that, in deciding this issue, a judge must weigh the public interest in seeing that an accused person is prosecuted with the court's obligation to protect the integrity of the criminal justice system:
"If the court always refuses to stay such proceedings, the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies. That would undermine public confidence in the criminal justice system and bring it into disrepute. On the other hand, if the court were always to stay proceedings in such cases, it would incur the reproach that it is failing to protect the public from serious crime. The weaknesses of both extreme positions leaves [sic] only one principled solution. The court has a discretion: it has to perform a balancing exercise. If the court concludes that a fair trial is not possible, it will stay the proceedings. That is not what the present case is concerned with. It is plain that a fair trial was possible and that such a trial took place. In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system. The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and required the criminal proceedings to be stayed."
The House of Lords also made reference to Reg. v Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 AC 2. The House of Lords pointed out that in that case the Court had held that a stay of prosecution was appropriate because a defendant had been forcibly abducted and brought to the United Kingdom to face trial in disregard of extradition laws:
"The speeches in Bennett conclusively establish that proceedings may be stayed in the exercise of the judge's discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means."
In Latif, the House of Lords carried out the balancing exercise and ultimately found that the irregularities in the execution of the investigation did not outweigh the public interest in ensuring the prosecution of the accused. The court accepted that the conduct of the law enforcement and customs officials in question to some extent constituted entrapment (and therefore compromised the integrity of the criminal justice system), but held that in the circumstances the irregularity was not sufficiently egregious to justify staying the prosecution on policy grounds. In addition, the House of Lords held that the unlawful conduct of the customs officer was not so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed. The Court also took into account the fact that the criminal behaviour of the customs officer was venial compared with that of the first appellant.
The Latif case is clearly distinguishable on the facts from the matter before Mpshe. In Latif, the Court was dealing with the conduct of law enforcement and customs officials, not prosecutors. Thus, the judgment relates to the conduct of officials involved in the investigation of crime, not the manner in which prosecutorial authorities manage a prosecution. In addition, whereas in the matter before Mpshe the key issue was the allegation that various officials in the NPA were acting with an ulterior motive in respect of the timing of the charging of Zuma, or else were using their powers for an improper political purpose, in Latif the officials in questions were not using their powers for an improper purpose, but had conducted themselves in a manner which could be regarded as unfair or unethical, the allegation being that they had essentially lured or tricked the accused into committing an offence, or else had encouraged the commission of an offence. Thus, it is questionable whether the facts in Latif and the matter under consideration by Mpshe are sufficiently congruent to justify a wholesale application of the reasoning of the House of Lords to the Zuma matter.
In addition, Latif was concerned with the discretion of a court, as opposed to a prosecuting authority, to decide whether to discontinue a prosecution. The Latif case therefore impliedly indicates that decisions regarding whether or not to stay a prosecution on the ground of an alleged abuse of process is one which only a court is properly entitled to make. Thus, the approach adopted by the House of Lords in Latif indicates that Mpshe should have left it to a court to determine whether it would be inappropriate to proceed with the prosecution, and should not have prejudged the issue himself.
However, even if one accepts that the principles espoused by the House of Lords in Latif are applicable by analogy to the Zuma matter, in deciding to drop the charges against Zuma Mpshe exercised his discretion wrongly, by elevating policy considerations above the public interest in seeing to it that persons accused of grave crimes are prosecuted for such offences. In terms of the reasoning employed by the Court in Latif, Mpshe was required to balance policy considerations against the public interest in allowing the prosecution to proceed. If the public interest in seeing Zuma prosecuted outweighed the policy issues associated with the criminal justice system, Mpshe ought to have proceeded with the prosecution notwithstanding the existence of the irregularities.
It goes without saying that the South African public has a substantial and compelling interest in seeing that Zuma is prosecuted for his alleged corrupt activities relating to the arms deal. This is especially so given that Zuma is almost certain to become the head of state in the next few weeks and will then be granted extensive executive powers in terms of the Constitution, including the power to appoint judges. If Zuma's culpability is not formally and finally disposed of by a court, it is possible that a person guilty of serious crimes of dishonesty will ascend to the highest public office in the land. It is unconscionable that any politician should assume this position of power and influence where there is a strong prima facie case of corruption against him. Accordingly, in the circumstances the public interest in ensuring that those charged with grave crimes are tried for such offences dictated that that the prosecution be continued notwithstanding prima facie indications that those involved in the prosecution may have acted improperly or unlawfully.
This is especially so when one considers that the countervailing policy considerations against which Mpshe was required to balance the public interest issues are in the circumstances technical and relatively trifling. Even if one accepts that McCarthy and Ngcuka acted unlawfully and with an ulterior political motive with regard to the timing issue, this misconduct is only incidental to the decision to recharge Zuma, as it does not have any bearing on the merits of the decision to charge. As such, it cannot and does not taint the entire prosecution with illegality, thereby justifying a discontinuation of the prosecution. In addition, McCarthy and Ngcuka's alleged actions have not caused Zuma any demonstrable prejudice. Furthermore, there are indications that Mpshe himself took the ultimate decision regarding when to recharge Zuma. Accordingly, it is not clear that McCarthy and Ngcuka's alleged unlawful actions had any tangible impact on manner in which the prosecution was conducted.
Given the overwhelming public interest in continuing with the prosecution, allowing the prosecution to proceed would not in the circumstances convey the impression that the NPA was adopting the approach that the end justifies any means, thereby compromising the integrity of the criminal justice system. Indeed, the NPA's failure to proceed with the prosecution in circumstances where vast amounts of public money have been expended on it, where it is clear that there is a strong prima facie case against Zuma, and where the justification for its abandonment appears technical and insubstantial is itself damaging to the credibility and integrity of the criminal justice system.
Had Mpshe properly applied the approach of the Court in Latif, Mpshe would have decided to proceed with the prosecution on the grounds of the public interest in seeing to it that Zuma's culpability was properly determined by means of a formal legal process. In the circumstances, it was not possible for policy considerations to outweigh the public interest in proceeding with the prosecution. Indeed, there are strong policy considerations which militate against a discontinuation of the prosecution, including the fact that a court would be better placed to determine the authenticity of the audio tapes in question and the extent to which the alleged abuse of process had contaminated the prosecution.
When viewed in this light, Mpshe's reasoning appears contrived, disingenuous and self-serving, and raises questions about whether he applied his mind to the matter impartially and in good faith.
James Linscott is a lawyer and a former Commonwealth Scholar at St. John's College, Cambridge
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