The article by Jeff Radebe ("NPA's integrity remains intact" Sunday Times April 12) makes interesting reading. He was the Minister of Transport when he wrote it, and he is now the Minister of Justice, and writing from Luthuli House as the ANC's head of policy he offered a lawyer's-eye account of the issues surrounding the decision by the NPA to withdraw the case against Jacob Zuma. He refers - as lawyers do - to various legal rules and decided cases which he quotes as authorities for his conclusions. What he says is worth examining.

Politicians have an absolute and inviolable duty to understand and to respect the basic rules of our constitution and law, and criminal law and procedure in particular. The burden of disadvantage in South Africa demands that this duty must be honoured with little short of obsessive care, for fear of misleading those who are less well-informed and who trust those addressing them for guidance and leadership. However, there is an emerging culture in the ANC that this understanding and respect for rules matters little because - apparently - all one needs to be right is political passion or the semblance of it: just say something loudly, forcefully, and often enough and it will be correct and truthful.

Radebe seeks to show that it is improper in law to apply for any review of the decision of the Acting National Director of Public Prosecutions to discontinue the case against Jacob Zuma. He cites cases which, he claims, show that a review would be against the law.

It would be sufficient to reply merely by drawing attention to the Promotion of Administrative Justice Act (Act 3 of 2000). This enables a review of a decision not to proceed with a prosecution, and it is thus entirely legal to make an application accordingly and the court would consider it on its merits. Whether the application would succeed is, of course, another matter and would depend on whether or not the court concludes that the NPA's decision is based on sound principles of administrative law.

This response to Radebe cannot be left at that, however, because it is deeply troubling that what purports to be an authoritative statement of the law fails to take this statute into account. Why is this?

What causes such concern is Radebe's statement that: "It is incumbent upon all of us, in fighting our political or other battles, not to put into disarray our constitutional democracy, lest we invite chaos and anarchy merely for the expediency of narrow political gain".

This is sinister, for it quite simply equates any threat of a criminal prosecution of Jacob Zuma, and the implications of this for the ANC, with the safety and security of South Africa. Worse still, it is an attempt to cast those who use the rights accorded to all South Africans as the villains of South African political life. Accordingly, his arguments need fuller examination.

Radebe makes the point more than once: "The constitution enjoins us to respect the judiciary, and that includes the acting national director of public prosecution's decision to withdraw the case against Zuma. Therefore, to challenge the rulings of the judiciary, including those of the NPA, outside the due avenues of law is to invariably undermine its independence and hegemony in society. In essence, it is to invite anarchy".

This is nonsense. The judiciary does not include any member of the NPA, acting or otherwise; our Constitution is clear on this point, for it is one of the consequences of the separation of powers which our Constitution enshrines. The NPA lies within the executive arm of the state and not the judicial, and Radebe - a minister and a part of the executive, and a leader in the ANC - has no business brushing this fact aside. It is fundamental to the criminal justice system.

Judges and prosecutors do different things, and their relationships with the state are accordingly defined in different ways which must never be disregarded when discussing their roles. Accordingly, when Radebe writes, as he does, that "Our constitution provides for the independence of the director ..." he misleads those who rely on his words. The sound reasons, the word "independent" appears in neither section 179 of the Constitution which establishes the NPA, nor in the NPA Act which the Constitution requires to give effect to the section. Both require the prosecuting authority to exercise its functions "without fear, favour, or prejudice". The word "independent", for sound reasons explained below, does not appear there.

In contrast, the judicial authority - vested in the courts - is established by section 165 of the Constitution. This prescribes that "The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice". The oath or solemn affirmation made by judges reflects this.

The difference in wording is essential because a prosecutor, as an official within the executive arm of the state, cannot decide on guilt or innocence; and a judge in court cannot decide whether or not a person shall be put on trial. As a result, the prosecutor and the judge must take different matters into account when discharging their duties -- the prosecutor, whether someone should be arraigned (ie, brought to trial); and the judge thereafter whether that person is guilty as charged.

Moreover, judges cannot decide what cases come before them. On the other hand, even in cases where it is thought that a prosecution might succeed, prosecutors may have to allow themselves to be influenced in their final decision by factors which might not appear in the dossier as explained in their Policy Directives: matters such as the nature, seriousness, and prevalence of the offence, the attitude of victims, and the interests of the victim and the broader community.

The NPA is bound by these Directives which set out the policy it must use when taking decisions. Though legally enforceable and of the utmost importance to any understanding of what prosecution entails, the NPA stubbornly refuses to made them readily available (and, from bitter experience, does not even acknowledge requests for them), unlike the prosecution services and authorities elsewhere in the Commonwealth which are bound by similar policy Directives and Manuals. The relevant passages in all of them use similar words to state that a prosecution should normally be decided if there is a reasonable prospect that it will be successful.

This is not a judicial decision, but an administrative one and it is possible to take it on review to the High Court. Summarising cases on the point, the question before the court will be whether the person taking the decision to prosecute complied with the requirements of the rules of natural justice: those who take such decisions must apply the correct criteria, not act capriciously or in bad faith, nor take into account irrelevant considerations or ignore relevant ones; and not take a decision so grossly unreasonable as to suggest that there had indeed been a failure to apply one's mind to it.

The difference between this process and what a judge does is crucial. It reflects the difference between the prosecutor's decision that a case should go to trial, and a judge's decision that guilt has been proved beyond all reasonable doubt: decisions to prosecute have to be based on material in the dossiers involved, none of which has been tested in cross-examination and scrutiny in court nor even ruled to be admissible as evidence.

The court, on the other hand, has first to decide whether the testimony offered by the prosecution is admissible and not excluded by the rigorous tests which seeks to ensure that it is as reliable as possible and not, for example, hearsay; and thereafter the court must hear the evidence and the cross-examination of the witnesses giving it, and then decide on its credibility. This explains why, in the accusatorial system we use, a prosecutor does not pass judgment and a judge does not prosecute.

This has a direct bearing on the two cases Radebe cited in his article to explain why there should be no review of the Acting National Director's decision to stop the prosecution of Zuma He says that the first, State v Dubayi 1976 (3) SA 110, rules that "our courts are not to interfere with the bona fides of the prosecution authority, because it would be irregular to do so".

It appears that Radebe did not read the case himself but relied on someone else to find an authority and explain it, for nowhere in this case do these words appear - even the case-name and reference Radebe gives for it are so wrong that it took a flash of inspired genius by a skilled law librarian to identify it. The case was a review in the Transkeian High Court of a conviction before a magistrate and it arose out of a mess of improper and unprocedural fumbling by both the magistrate and prosecutor: the prosecutor wanted to drop assault charges against an accused, but the magistrate, after hearing some evidence but before the accused had pleaded, overruled the prosecutor and decided that the case should continue - as it did, to a conviction which was duly set aside by the reviewing court.

It is true that the reviewing judges said that "The question arises what right the magistrate had to instruct the prosecutor to proceed against the accused and the answer is absolutely no right whatsoever". Presumably, this is what Radebe is relying on; however, this has nothing whatever to do with the situation in Zuma's case -- it just confirms that what happened in Dubayi's case was wrong; to the extent that the case shows anything, it is that in court, when a trial starts, only prosecutors and not presiding magistrates (or judges) may prosecute.

The case has not the remotest bearing on the review proceedings in Zuma's case, where the outcome of the application will depend on whether the High Court decides that Mokotedi Mpshe used his administrative discretion properly as explained above. In any event, Dubayi was decided under the old apartheid constitution when there was no separation of powers. Tedious as this article may already be to non-lawyers, it would be even more so if one were to consider here the far-reaching consequences of this significant fact.

The second case Radebe relies on (also apparently unread by him, as the reference he gave is meaningless) is Sanderson v Attorney-General, Eastern Cape 1998 (1) SACR 227 (CC) - a decision of our modern Constitutional Court. In his own words, Radebe claims that this case stated that "Our courts, as a rule, also cannot interdict the prosecution authorities from prosecuting when the latter have decided against it and cannot, as a rule, compel the prosecution authority to prosecute".

There seems to be some sort of verbal error in what Radebe writes, but nowhere in the law report is there a passage even remotely similar to these words nor one that provides any helpful insight into what he is trying to get at. In any event, the case is irrelevant.

The Constitutional Court was not dealing with a review of a decision not to prosecute, but something quite unrelated: an application for a permanent stay of prosecution on the grounds of delay in starting the trial. Assuming that Radebe means that a court cannot overrule the prosecution's decision on whether to proceed or not, he is utterly wrong: the law report makes it clear that the courts are perfectly willing to listen to an application to stop a prosecution and will grant or refuse such an order on the merits of the case, but this has absolutely nothing to do with the merits of an application for a review of a decision by the prosecution not to prosecute. The question of "compelling the prosecution authority to prosecute" was simply not being considered.

There is no point in this context of predicting the outcome of the application for a review of the NPA's decision to stop the prosecution of Jacob Zuma, though it seems to be quite unsupported on the facts and the critical analyses by other lawyers is convincing.

However, there is an element of unsavoury lawyering coming from the NPA. The reference to, and adapting and paraphrasing of, foreign judgments is unproblematic if their reasoning is helpful for it happens often that excellent circular wheels have been developed in the jurisprudence of other countries. With due care they can be used on the roads through our law - indeed, a vast amount of South Africa's excellent corpus juris and jurisprudence has developed from comparative studies and imports and conscious influences, and some of the criticism of the NPA for using a Hong Kong case is downright silly.

However, proper attribution must be given for every source - no matter whence it comes - which is quoted or which has been paraphrased or adapted and has influenced a decision. This is something first year law students have drummed into them. This is not merely a matter of showing respect for another's work; it is a fundamental of honest scholarship because it is essential for critical study of the reasoning.

The NPA's conduct in this respect is not just a clumsy oversight and an unfortunate fumble, as Tlali Tlali on behalf of the NPA would have us accept, but grubby: it comes from Mpshe himself - a senior advocate who should not even have to think consciously about the meticulous and scrupulous use of resources. If for no other reason, Mokotedi Mpshe's explanation for what he has decided is a shoddy piece of work that should embarrass the NPA.

Jeff Radebe's attempt to "explain" and defend what the NPA has done is deeply worrying. The impression is given that the ANC deeply fears the outcome of an application for review. The ANC, with its noble history of struggle and successful leadership in laying the basis for a free and democratic society and country, now fears what it itself has played a part in creating. Radebe's article reflects what is happening: the ANC has come off the tracks of its own history, and is now thus unable to offer coherent leadership.

We need to relaunch our movement - and there is no time to delay.

Mervyn Bennun is an Honorary Research Associate in the Law Faculty at the University of Cape Town; he is a long-standing member of the ANC.

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