The ruling by the Supreme Court of Appeal (SCA) that the ‘Spy Tapes' are to be released to the Democratic Alliance (DA), is an important decision for the rule of law. This brief tracks the case's history and explains what the next steps will be.

Introduction

The SCA's dismissal of Jacob Zuma's appeal against a decision of the North Gauteng High Court's (NGHC) order, that the so-called ‘Spy Tapes,' and other documents, used by the National Prosecuting Authority (NPA) to drop 783 charges of fraud and corruption against him, will go down as a high watermark in the country's legal and political history.

The SCA's order comes after an agreement was reached by both Mr Zuma and the DA finalising the matter. This agreement followed the breathtaking concession made by Mr Zuma's lawyer, Kemp J Kemp SC, during oral argument, that he had no grounds to make a case as to why the tapes and the documents should not be handed to the DA [1].

The rulings, taken together, confirm the principles of equality before the law, the supremacy of the Constitution, and the power of our Courts to ensure compliance with it. That this is only the first step in a long journey that the DA will take, should it want charges against Mr Zuma to be reinstated, should not detract from its importance.

Background: Dropping the Charges

In April 2009, two weeks before the South Africa's fourth democratic general election, then Acting National Director of Public Prosecutions (ANDPP), Mokotedi Mpshe announced that "it was neither possible nor desirable ... to continue with the prosecution of Mr Zuma" [2] [3].

This decision was, in part, motivated by representations made by Mr Zuma to the NPA, on a no-prejudice confidentiality basis, as to why the charges should be dropped. Part of these representations included a taped conversation between the then head of the Directorate of Special Operations (DSO, a.k.a. the Scorpions) [4], Leonard McCarthy, and then NPA head, Bulelani Ngcuka. Mpshe revealed what he believed to be an abuse of process: namely, an improper discussion between McCarthy and Ngcuka as to the timing of when the charges should be brought against Mr Zuma. Mpshe stated that this discussion indicated ulterior, political, motives for charging Mr Zuma (the charges were to be brought before the ANC's Polokwane Conference, at which Mr Zuma was contesting the ANC's Presidency), and amounted to "an abuse of process" [5] [6].

The result of Mpshe's decision was that Mr Zuma went on to fight, and win, the 2009 election as head of the ANC, becoming President of South Africa.

Reviewing the Decision: The High Court

The DA approached the North Gauteng High Court (NGHC) to institute review proceedings against the NPA [7]. As Ranchod J stated:

"The DA was unhappy about (the ANDPP)'s decision to discontinue the criminal prosecution against (Mr Zuma) and launched an application in (the NGHC) for the review and correcting or setting aside of the decision ... The review application was to be brought in terms of (the Promotion of Administrative Justice Act [PAJA] and the Constitution) ... (The DA) requested (the ANDPP and Mr Zuma) to deliver ... in terms of Rule 53(1) ... the record of the proceedings pursuant to which the (ANDPP)'s decision was taken ... (The NDPP) informed (the DA) that it could not do so as the record contained written and oral submissions made by (Mr Zuma) on a confidential as well as "without prejudice" basis." [8]

The NPA argued that it could not divulge the documents without the DA making a suitable undertaking of confidentiality or the waiver of confidentiality by Mr Zuma. Given that the DA was unwilling to give such an undertaking and Mr Zuma did not waive consent, the DA launched two interlocutory applications in the NGHC in order to compel the NPA to comply with obligations.

The NPA raised two points in limine in opposition to the DA's applications, namely: (1) the DA's (lack of) standing (locus standi); and (2) the (non-)reviewability of the NPA's decision to discontinue criminal proceedings [9].

Ranchod J dismissed the applications, with costs, on the ground that the DA lacked standing. Ranchod J found that the DA did not make out a case in terms of section 179(5)(d) of the Constitution (which allowed any interested party to make representations to the NPA); nor under PAJA (as it lacked a direct and substantial interest), nor under section 38 of the Constitution (which only pertained to the Bill of Rights). Ranchod J, in dismissing the applicatio, did not find it necessary to engage with the question of reviewability [10].

Reviewing the Decision: On Appeal - The Supreme Court of Appeal

The DA appealed Ranchod J's decision. On appeal [11], the DA raised both the issues that were brought before the NGHC. The SCA delivered a unanimous judgment in the DA's favour.

On standing, the SCA, referring to appropriate developments in our constitutional jurisprudence, found that the DA could litigate in its own interest, and the public's, to review the decision to drop the charges. The equal application of, and respect for, the rule of law is of fundamental importance to the functioning of our constitutional democracy. It is of little surprise that a political party, irrespective of its opposition status, would not be moved to litigate on that principle. That a liberal approach to standing may open the floodgates is of little consequence [12].

On reviewability, the SCA held the NPA's decision to be reviewable on the principle of legality. Thus, even though there some doubt as to the applicability of PAJA, the issue was ultimately irrelevant. The Constitution itself could be relied upon where PAJA failed to adequately cater to the circumstances being reviewed. The SCA pointed out that PAJA's existence did not detract from, nor replace, the rights of review that a person would have under the Constitution [13].

The SCA, thus, held that the record, which was to including the tapes and any other documents/materials relevant to the ANDPP's decision, was to be handed to the DA - barring any representations that would violate the NPA's ‘no prejudice' agreement with Mr Zuma [14].

Back to the High Court

After repeated attempts to get Mr Zuma's legal team to comply with the SCA order, the DA approached the NGHC for a second time [15]. In seeking to enforce the SCA's order, it raised three issues, namely whether: (a) the NPA should hand over the tapes and the transcripts; (b) the NPA should produce the relevant internal documents; and, (c) the NPA was in contempt of court for failing to act.

The High Court ruled in favour of the DA on the first two issues but spared the NPA on the third.

Although Mr Zuma was joined as an interested and affected party, he did not refute each claim raised by the DA. Rather, he argued that confidentiality - which was agreed to by him and the NPA - attached to tapes, and all documents, and, thus, excluded it from delivery [16]. It was on this basis that the NPA (incorrectly) interpreted the SCA's order and, thus, (incorrectly) frustrated the DA's attempts to gain access [17].

On the tapes, Mathopo J held that the

‘‘submission by (Mr Zuma) that the transcripts are inextricable and (form) part of the entire representation is rejected. Equally untenable is the submission that producing the transcripts would infringe (Mr Zuma's) right to fair trial. No cogent or plausible evidence has been advanced ... to show that ... the conduct of the (NPA) ... is irresponsible if regard is had to the fact that it ... is obliged to file the record. Adopting a neutral position is akin to abdicating its duties and responsibilities [18].''

On the documents, Mathopo J found that

‘‘The documents sought by (the DA) will assist in enquiring into the rationality of the decision ... It simply cannot be that all the documents submitted ... are covered by privilege. That would amount to stretching the duty of privilege beyond the realms of common sense and logic ... any concerns raised by (Mr Zuma) ... can be dealt with [19].''

The Court went on to say that

‘‘where confidentiality is claimed both parties will be required to set out the basis why those particular documents should not be disclosed. To deny (the DA) the remedy in this case would ... be contrary to the spirit and purport of the SCA order. (This) approach ... will take into account (Mr Zuma)'s right to privilege and confidentiality in relation to specific documents [20].''

On contempt, Mathopo J found that the conduct of Mr Zuma and the NPA did not meet the ‘deliberate and wilful contempt' threshold. Mathopho J found that the NPA did raise a reasonable, though incorrect, doubt with respect to affording Mr Zuma an opportunity to raise his concerns about what should be divulged to the DA, as he was entitled to do in terms of the SCA order [21].

Mathopo J ordered all the tapes and documents to be delivered to the DA, save those confidential aspects which would otherwise prejudice Mr Zuma [22].

Back to the Supreme Court of Appeal (Again)

After losing in the NGHC, Mr Zuma appealed to the SCA. The SCA, in a unanimous judgment, dismissed the appeal with costs [23]. The SCA's ruling is noteworthy for several reasons.

In finding for the DA with respect to the tapes and the documents, endorsing the findings of the NGHC, the SCA said the following:

"It is important to note the following in relation to the audio recordings. First ... the audio recordings do not constitute written representations ... it is clear that the ANDPP herself saw them as distinct from the written representations. Second, the audio recordings came into existence long before Mr Zuma made his representations. Third, it was accepted by counsel for Mr Mr Zuma that the gist of those recordings ... was made public in 2009 by Mr Mpshe ... Fourth, it was accepted on behalf of Mr Mr Zuma, as reflected in the public statement made by Mr Mpshe ... The NIA declassified the information and if any privilege at all attached to the audio recordings, it may be that it could only be claimed by the NIA.

Importantly, the audio recordings cannot by any stretch of the imagination, or by a process of deduction, be said to reveal Mr Mr Zuma's confidential representations ...

The high court rightly concluded that the order of this court in the first appeal did not envisage a blanket prohibition of disclosure and that it excluded only matters that Mr Mr Zuma could rightly consider confidential. The high court reasoned that absent specificity in relation to claims of privilege, there is an obligation to disclose. In order to protect legitimate claims of confidentiality by framing an appropriate order, the high court relied on the decision of this court in Tetra Mobile Radio (Pty) Ltd v MEC, Department of Works 2008 (1) SA 438 (SCA). At para 14 of that case, this court was concerned with achieving a balance between the rights of access to documentation and confidentiality. Mathopo J accordingly made the order as quoted in para 24 above.

As undertaken, the parties reported to this court within a week concerning their discussions and attempts to reach agreement about a suitable senior counsel or retired judge to be the final arbiter of confidentiality. They reached agreement concerning an order to replace the second part of the order made by the court below. During argument before us, we were assured that the parties were agreed that there should now be finality and it was in that spirit that the agreement was reached. The order in substitution of the second part of the order of the court below as it appears hereafter in the main follows the agreement reached by the parties. [24]''

The new order of the SCA, as agreed to by the parties, is that the tapes will be handed over and the internal documents would be too, after being evaluated by Mr Justice Hurt who will determine whether or not the identified parts infringe on Mr Zuma's right to confidentiality [25]. The SCA also had harsh words for the NPA as to how they have conducted themselves throughout this period [26].

Conclusion

After five years of litigation, it looks as if the DA will finally gain access to the tapes and documents. Even though it has gained such access, that does not guarantee that the purpose for which these were sought - namely to review the decision to drop the charges against Mr Zuma, and ultimately have him recharged - will be successful. However, we can take solace in the fact that our courts have reaffirmed the preeminent status of the rule of law, as espoused by our Constitution. Although ‘justice' may have been delayed, it certainly has not been denied.

References

[1] EWN report, August 15 2014

[2] M&G report, August 24 2014

[3] Mpshe is presently serving as an Acting Judge on the Land Claims Court.

[4] Many commentators suggest that this incident formed part of the rationale of the ANC under Mr Zuma to shut down the Scorpions.

[5] Note 2 above.

[6] Ibid. This claim has subsequently been challenged by former crime intelligence boss Mulani Mphego who told the Sunday Independent that "(he) could not reconcile what he was saying with what (he) knew." Mphego's revelation adds credence to the DA's claim that the decision to drop the charges against Mr Zuma was irrational, unlawful, and invalid.

[7] Judgment. Discussion as to the standing of Richard Young and CCII Systems is omitted as they were found to have no standing on appeal.

[8] Ibid. Paragraphs 3 - 5.

[9] Ibid. Paragraphs 6 and 11. There was some dispute between the parties about whether the in limine points should be heard together with the responses of the respondents in the main application. The DA suggested that its approach (that the respondents should follow normal procedure) was correct. The Court, however, found against the DA and held that in this case the normal procedure, as laid down by Corbett J in Standard Bank of SA Ltd v RTS Techniques & Planning (PTY) Ltd 1992 SA 432 (TPD) at 440, could be dispensed with and that the respondent did not have to file a reply because the in limine points, as they were raised, were akin to an exception. The Court was of the opinion that to find otherwise would be to entitle the DA to access a substantive answer that it did not have the standing to acquire in the first place, and that conducting the matter in this way would result in a duplication of effort and unnecessary costs. This approach was severely criticised in the SCA (Note 12, Paragraphs 48 - 49).

[10] Ibid. Paragraphs 19 - 37 and 55.

[11] Judgment

[12] Ibid. Paragraphs 38 - 47.

[13] Ibid. Paragraphs 23 - 37.

[14] Ibid. Paragraph 52.

[15] Judgment

[16] Ibid. Paragraph 12.

[17] Ibid. Paragraph 17, read with the judgment as a whole.

[18] Ibid. Paragraphs 31 - 32.

[19] Ibid. Paragraph 43.

[20] Ibid. Paragraph 45.

[21] Ibid. Paragraphs 47 - 50.

[22] Ibid. Paragraph 51.

[23] Judgment  

[24] Ibid. Paragraphs 30, 31, 36, 37, and 40.

[25] Ibid. Paragraphs 42

[24] Ibid. Paragraph 41.

Kameel Premhid, Researcher, Helen Suzman Foundation

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