IN THE HIGH COURT OF SOUTH AFRICA
NORTH GAUTENG HIGH COURT, PRETORIA
In the matter between:
DEMOCRATIC ALLIANCE Applicant
and
THE ACTING NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS First Respondent
THE HEAD OF THE DIRECTORATE OF SPECIAL OPERATIONS Second Respondent
JACOB GEDLEYIHLEKISA ZUMA Third Respondent
FOUNDING AFFIDAVIT
I, the undersigned,
JAMES SELFE
do hereby make oath and say that:
1. I am the chairperson of the Federal Executive of the Democratic Alliance ("the DA"), and represent it as a member of the National Assembly of the Parliament of the Republic of South Africa. My offices are at 242 Marks Building, Parliament, Cape Town. I am duly authorised to represent the DA in this matter. The DA has taken a resolution that it brings this application and that I am authorised to depose to affidavits on its behalf.
2. The facts herein contained are, unless the contrary appears from the context hereof, within my own knowledge and are in every respect true and correct. Where in this affidavit I make any legal submission, unless otherwise indicated, such submissions are made on the basis of advice given to the DA by its legal advisors and I believe such advice to be correct.
THE PARTIES
3. The DA is a duly registered political party with its main offices at 2nd Floor, Thebe Hosken House, c/o Breda and Mill Streets, Gardens Cape Town. A copy of the DA's federal constitution is attached as "JS 1", which establishes it as a body corporate with perpetual succession, capable of suing in its own name.
3.1. The DA enjoys extensive representation at national, provincial and local government levels. In the 2004 general elections the DA received 12.3% of the national vote (representing 1 931 201 votes) and at present holds 47 seats in the National Assembly. The DA also enjoys representation in every provincial legislature. In the 2006 local government elections the DA increased its representation and gained 16.3% of all votes cast.
3.2. Paragraph 1.2 of the DA's federal constitution makes it clear that the DA is founded on a vision of a prosperous, open opportunity society that is uniquely South African, in which every person is free, secure, and equal before the law; and enjoys an equal right to full participation in the life of the common South African society.
3.3. The principles of the DA include "equality before the law" (paragraph 1.3.5); the separation of legislative and executive power (paragraph 1.3.6); and establishing a "clear division between the ruling party and the state" (paragraph 1.3.11). These values, which reflect those in the Constitution of the Republic of South Africa, 1996 ("the Constitution"), are central to the relief sought in this application.
4. The First Respondent is the ACTING NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS ("the NDPP").
4.1. The office of the NDPP is currently held by Mokotedi Joseph Mpshe, in an acting capacity, with offices at VGM Building (Corner Westlake & Hartley), 123 Westlake Avenue, Weavind Park, Silverton, Pretoria.
4.2. The office of the NDPP is created in section 179(1)(a) of the Constitution and section 5 of the National Prosecuting Authority Act 32 of 1998 ("the NPA Act").
4.3. In terms of section 179(2) of the Constitution, the NDPP is the head of the single prosecuting authority, being the National Prosecuting Authority ("NPA"), which has "the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings". Section 20(1)(c) of the NPA Act further makes it clear that the prosecuting authority - acting through regional Directors of Public Prosecutions ("the DPP") - enjoys the power to discontinue criminal proceedings.
4.4. In terms of section 179(5)(d) of the Constitution and section 22(2)(c) of the NPA Act, the NDPP enjoys the power to review a decision by a DPP to prosecute or not to prosecute. This decision cannot however be taken before the NDPP consults with the DPP; and receives representations from the accused, the complaint and "any other person or party whom the National Director considers to be relevant".
4.5. In terms of section 22(4)(c) of the NPA Act, the NDPP "may consider such recommendations, suggestions and requests concerning the prosecuting authority as he or she may receive from any source".
4.6. The First Respondent is cited in that on 6 April 2009 he took a decision to discontinue a prosecution against the Third Respondent ("the decision"). The decision lies at the heart of this application.
5. The Second Respondent is the HEAD OF THE DIRECTORATE OF SPECIAL OPERATIONS ("the DSO" - commonly referred to as "the Scorpions"). The DSO was established in terms of section 7 of the NPA Act and falls under the NPA. Although the DSO is currently in the process of being disbanded, it has at all times been responsible for the investigation and prosecution of the Third Respondent.
6. The Third Respondent is JACOB GEDLEYIHLEKISA ZUMA ("Mr. Zuma"), an adult male citizen.
6.1. Mr. Zuma is the President of the African National Congress ("ANC"), a duly registered political party. Mr. Zuma is number 1 on the ANC's national electoral list for the national general elections scheduled for 22 April 2009. Based on previous experience and all current indications, it appears that the ANC will attain a majority in the national elections; and that the National Assembly will at its first sitting after the election elect Mr. Zuma as the President of the Republic of South Africa.
6.2. In terms of an indictment served on Mr. Zuma on 28 December 2007, he was accused of 18 serious criminal charges: including a charge of racketeering, 4 charges of corruption, a charge of money laundering and 12 charges of fraud. By virtue of the decision, taken on the brink of the general elections, the NDPP has effectively decided not to pursue these charges - even though there is on the NPA's own assessment at least a prima facie case against Mr. Zuma in the sense that the State would enjoy good prospects of success if the charges were pursued.
6.3. A copy of these papers will be served on Mr. Zuma care of the ANC's main offices at Luthuli House, 54 Sauer Street, Johannesburg. A courtesy copy of the papers will also be served on Mr. Zuma's attorney, Mr. Hulley of Hulley & Associates, at 2nd Floor, Momentum House, corner Prince Alfred Street and Ordnance Road, Durban.
THE RELIEF SOUGHT
7. This application relates to the lawfulness of the NDPP's decision to discontinue criminal proceedings against Mr. Zuma pursuant to the indictment of 28 December 2007.
8. The decision falls within the definitional ambit of "administrative action" contained in section 33 of the Constitution and section 1 of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA"), and as such is reviewable by this Court either in terms of the Constitution or in terms of section 8(1)(c) of PAJA.
9. It is noted that while the definition of administrative action in PAJA excludes "a decision to institute or continue a prosecution" (sub-section (ff)), this does not extend to decisions to discontinue extant criminal prosecutions.
10. Based on the facts below, the NDPP's decision falls to be reviewed on the bases that:
10.1. The decision was not rationally connected to the information before the NDPP or the reasons given for the decision (sections 6(2)(f)(cc) and (dd) of PAJA) and unreasonable (section 6(2)(h) of PAJA). All indications confirm that the NDPP was and remains satisfied that a prima facie case existed against Mr. Zuma which would enjoy good prospects of success were it were to come before Court.
10.2. While public policy considerations may be relevant, those raised in the NDPP's decision (to which I return below) do not come near the level required in order to justify a decision to discontinue the prosecution.
10.3. Insufficient weight was given to relevant considerations (section 6(2)(e)(iii) of PAJA). The key consideration which was given insufficient weight by the NDPP was that a good case exists against Mr. Zuma and that there were compelling considerations of public policy warranting its prosecution, which far outweighed the any of the considerations relied upon by the NDPP for discontinuing the prosecution;
10.4. The decision was based on an ulterior motive (section 6(2)(e)(ii) of PAJA) and/or the unwarranted dictates of another person shaped the decision (section 6(2)(e)(iv) of PAJA). The considerations relied upon by the NDPP in making his decision - connected to alleged abuses of the process by the head of the DSO - are so inadequate and flawed that the irresistible inference is that the NDPP must have acted for some other motive or based on the dictation of some other person;
10.5. The decision is unlawful and unconstitutional (section 6(2)(i) of PAJA). In this regard the DA notes that in terms of section 179(4) of the Constitution and section 32(1)(a) of the NPA Act, the NDPP is obliged to "serve impartially and exercise, carry out or perform his ... powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law". In terms of section 32(2) of the NPA Act the NDPP took an oath in this regard. By acting in the manner set out in the paragraphs above, the NDPP has acted unlawfully;
10.6. The NDPP was not authorised to make the decision (section 6(2)(a)(i) of PAJA). In terms of the NPA Act the decision to discontinue proceedings is primarily that of the regional DPP. This reflects the practical consideration that the DPP will be best situated to assess whether a case with good prospects exists. The NDPP only has a power to review such a decision. In this case, no decision by any DPP has been made which could be subject to review by the NDPP; and
10.7. The NDPP can be reasonably suspected of bias (section 6(2)(a)(iii) of PAJA). The DA does not contend that any evidence exists that the NDPP is actually biased. The reasonable suspicion however exists that the NDPP, who is performing his functions in an acting capacity, was placed in an impossible situation to consider this matter fairly and properly. The NDPP's continuation in his role is dependent on appointment by the President. As the President who will make that decision will in all probability be Mr. Zuma, the inference necessarily arises that the NDPP was not in a position to consider Mr. Zuma's case impartially and fairly. The NDPP found himself in a position of fundamental conflict.
11. The rights and interests of the DA, its members and the public are adversely affected by the unlawfulness of the decision, in that:
11.1. They have a right to lawful administrative action, as enshrined in section 33 of the Constitution;
11.2. In the circumstances referred to hereafter the DA's interest in the decision was recognised by the NDPP and the DA was permitted to submit representations to the NDPP on why the prosecution should not be discontinued. The DA, accordingly, had a legitimate expectation that its representations would properly and fairly considered, as part of a process of lawful and regular administrative action;
11.3. A very substantial sum of public funds, by all reports amounting to some R60 million, has been spent by the NPA in investigating and progressing the prosecution of charges against Mr Zuma, and in resisting Mr Zuma's attempts to obstruct and delay this process. In addition, Mr Zuma's legal costs (almost certainly amounting to many millions of Rands) were also funded out of the public purse. In the result, the tax paying citizens of South Africa have a right that public expenditure of such magnitude should not be rendered futile as a result of unlawful administrative action;
11.4. The right to equality enjoyed by all South Africans is infringed (or will be infringed) when and if a powerful and influential State official or prominent figure in public life such as Mr Zuma is shown to have avoided prosecution by reason of his prominence, position and influence;
11.5. In the particular circumstances of this matter, the decision whether or not the prosecution should be discontinued was one which ought to have been determined by a court of competent jurisdiction. The DA, its members and the public have the right to have this issue or dispute resolved by the application of law, and decided in a fair public hearing before a court;
11.6. The crimes in respect of which Mr Zuma has been charged are crimes against the public. In particular, corruption on the part of high ranking public officials such as Mr Zuma is a particularly grave criminal offence in respect of which the public are the real victims. The public have a right that, where prima facie a good case has been established by the NPA, such case should not be withdrawn by the NDPP, save in accordance with the strict precepts of the law and the Constitution.
12. Furthermore, the decision to discontinue the prosecution has direct legal consequences for Mr Zuma and for this reason also, the DA has been advised that the decision qualifies as administrative action for the purposes of PAJA.
13. Even if the NDPP's decision is not "administrative action" as defined in PAJA, it is administrative action as contemplated by section 33 of the Constitution. Moreover, it is axiomatic that it is an exercise of public power, which is bound to accord with the principles of the doctrine of the rule-of-law enshrined in section 1(c) of the Constitution and implicit in the structure of the Constitution itself. As such the decision is reviewable for the same reasons as those above in that it is:
13.1. Irrational and arbitrary. In this regard the Constitution provides that the rule-of-law requires that all organs of state be held accountable for their actions; and
13.2. Unlawful and contrary to the provisions of the Constitution and the NPA Act.
14. It must be made clear that the DA does not assert that Mr. Zuma is guilty or that he should be treated as if he is guilty. The DA seeks no more than that which the Constitution and the NPA Act demand - namely that Mr. Zuma must face fair criminal proceedings in a court of law in which the case against him is presented; and in turn he is given an opportunity to provide an innocent explanation.
15. That presumption does not however excuse him from being called to answer charges backed by significant evidence. To continue with a prosecution does not amount to victimisation of Mr. Zuma. Mr. Zuma will enjoy the full panoply of fair trial rights contained in the Constitution, together with the best defence that the taxpayer's money can buy.
STANDING
16. In bringing this application, the DA acts:
16.1. In its own interests and the interests of its members and supporters (in terms of sections 38(a) and (e) of the Constitution), who all have an interest in the State acting lawfully and in accordance with the constitutional and statutory requirements; and
16.2. In the public interest (in terms of section 38(d) of the Constitution).
17. Mr. Zuma's alleged crimes of corruption are crimes against the public, particularly in that he is effectively accused of providing political patronage and protection in exchange for financial reward. As a political party the DA represents a significant portion of society. The DA has no other means to challenge the decision under review save by approaching this Court.
18. The interest of the DA is heightened for the following reasons:
18.1. The charges faced by Mr. Zuma include allegations that he failed to properly declare the proceeds of bribes to the Secretary of Parliament, during the period in which he was an MEC in KwaZulu-Natal and thereafter the Deputy President of South Africa. The DA as the official opposition in the National Assembly has a particular interest in the protection of the Parliament as an institution and the strict enforcement of its rules, which clearly required Mr. Zuma to report all sources of income.
18.2. Flowing from the Constitution and its own federal constitution, the DA has an interest as a political party in ensuring respect for the principle of the rule-of-law and legality.
18.3. As a political party, and as the official opposition in the National Assembly, the DA has a special constitutional role and interest in ensuring that those in power do not escape accountability for their actions. Indeed, the principles of accountability, responsiveness and openness are enshrined as foundational principles in section 1(d) of the Constitution.
18.4. The reality is that Mr. Zuma is likely to become the next President of South Africa. If he is allowed to avoid accountability for his actions on the eve of elections - even though the NDPP is satisfied that it has a strong case against him - the overwhelming impression will be that those in power can escape criminal prosecution. This will compromise the most foundational constitutional values and be a blight on the institutional reputation of the prosecuting authorities.
18.5. As will be dealt with further below, the NDPP received and accepted submissions from the DA which may have been considered alongside submissions from Mr. Zuma regarding the discontinuance of the criminal prosecution. In so doing it was implicitly accepted that the DA was considered to be a party in terms of section 179(5)(d)(iii) of the Constitution, and that its submissions should be considered before making any decision regarding the continued prosecution of Mr. Zuma. For the same reasons, it is submitted that the DA has a clear interest in seeking relief concerning the lawfulness of the decision.
18.6. Holding the NDPP to account would not occur but for this application.
18.7. If organisations like the DA do not take up this matter, the reality is that few citizens will have the means and motivation to expend their resources on this matter, even though the underlying issue is one of crucial interest.
18.8. In an appeal by Mr. Zuma pending before the Constitutional Court, the ANC was allowed to make submissions. This is a clear indication that political parties stand on a different footing to other voluntary associations, and have a clear interest in ensuring fairness and compliance with the prescripts of the rule-of-law.
19. The current case does not relate to abstract issues in which the DA has passing interest. This case goes to the heart of the Constitution and the rule-of-law, which will be stripped of all meaning if the law is perceived to be too weak to hold the most powerful members of society to account.
20. At the same time, while the issues may be particularly acute in the particular case of Mr. Zuma, the applicable principles are not limited to the circumstances of his case. There is a general interest in the manner in which prosecution policy is applied. This critically impacts upon the issue of crime prevention and detection, which is of interest to all right-minded South Africans, regardless of their political affiliation.
21. The DA's federal constitution provides that its mandate extends to cases such as the present.
BACKGROUND FACTS
22.3. The various judgments considering the lawfulness of a letter of request sought by the NDPP under section 2(2) of the International Co-operation in Criminal Matters Act 75 of 1996 ("ICICM Act") addressed to the Attorney-General of Mauritius, regarding access to information held by Mauritian authorities pursuant to searches in that jurisdiction. These include the judgment of the KwaZulu-Natal High Court (per Levinsohn J); the SCA (reported as Zuma and others v NDPP 2008 (1) SACR 298 (SCA)); and the Constitutional Court (reported as Zuma v NDPP 2009 (1) SA 141 (CC)); and
22.4. The judgments in the prosecution of Mr. Schabir Shaik in the KwaZulu-Natal High Court (reported as S v Shaik and Others 2007 (1) SACR 142 (D)); the SCA (reported as S v Shaik and Others 2007 (1) SA 240 (SCA)); and the Constitutional Court (reported as S v Shaik and Others 2008 (2) SA 208 (CC)).
23. In light of this list of cases, it is striking that that while Mr. Zuma has consistently insisted on his innocence and welcomed his day in court, he has gone to extraordinary lengths to bring a range of interlocutory applications which have achieved little but delay the initiation of any criminal proceedings. The DA has no doubt that this was by design. In this regard the Constitutional Court (at paragraph 65 of its judgment in the search warrants case) expressed its disapproval of "preliminary litigation that appears to have no purpose other than to circumvent the application of" a fair trial at which evidence could be assessed in accordance with section 35(5) of the Constitution.
24. In order to provide this Court with the essential factual background, the DA has also referred to the extensive affidavits deposed to on behalf of the NDPP in previous proceedings, including:
24.2. An affidavit of Johan du Plooy of 13 December 2007, in his capacity as an investigator with the DSO. This affidavit was supplied in the appeal in the Constitutional Court against the judgment of the Supreme Court of Appeal referred to in paragraph 22 above.
24.3. An affidavit deposed to by George Dick Baloyi of 16 February 2009, in his capacity as a Deputy Director of the NPA seconded to the DSO for the investigation against Mr. Zuma. This affidavit was supplied in the appeal in the Constitutional Court against the judgment of the Supreme Court of Appeal referred to in paragraph 22 above.
25. To avoid unduly burdening these papers, these affidavits are not attached to these papers. The facts referred to have been widely reported and are largely common knowledge. Indeed the DA submits that this Court can and should take judicial notice of them. In any event, the affidavits are used primarily to indicate the NDPP's understanding of the relevant facts, which has formed the basis for its repeated assertions that it was proceeding with the charges against Mr. Zuma, not out of any malice or due to any political conspiracy, but solely because a good case existed.
26. To the extent required, copies of these affidavits shall be supplied to the Respondents and will be placed before this Court at the hearing of this matter.
27. The charges against Mr. Zuma arise, inter alia, out of alleged impropriety surrounding a process by the Department of Defence to acquire a range of military hardware, including corvette vessels; submarines; light utility helicopters; marine helicopters, ‘lead-in' fighter trainers; and advanced light fighter aircraft. The resulting "arms deal" (as it came to be known) was signed in December 1999 at great expense and amidst much controversy.
28. The actual allegations against Mr. Zuma and others originated in broad-ranging allegations in the National Assembly by an opposition politician, Ms. Patricia De Lille.
29. Investigations pointed to the possible involvement of the chief executive officer of a company known as Thomson Holding, Mr. Alain Thétard (Mr. Thétard), and Mr. Zuma. Mr. Thétard was also a director of Thomson (Pty) and a special purpose vehicle established to supply components of corvette vessels, known as African Defence Systems ("ADS").
30. In particular, Mr. Thétard's secretary, Ms. Sue Delique ("Delique"), indicated that he had travelled to Durban to meet with Mr. Zuma and Mr. Schabir Shaik ("Mr Shaik"). More recently Mr. Shaik has come to be known as Mr. Zuma's financial advisor. He was however also a director of ADS. This meeting took place 4 March 2000 and appears to have been necessitated by an article which appeared in the City Press newspaper in February 2000 alleging corruption in the acquisition of components from ADS.
31. The investigations established that at this meeting Mr. Zuma had given a coded indication - in a code previously established by Mr. Thétard - which led to agreement to the effect that Mr. Zuma would be paid R500 000 per annum until ADS started paying dividends. In exchange, Mr. Zuma would protect the Thomson group of companies from investigation, and lobby for their involvement in future deals. At this stage Mr. Zuma was the deputy President of the country (a position which he attained on 19 June 1999).
32. This agreement settled at this meeting was contained in a handwritten letter which Mr. Thétard handed to Ms. Delique. On his instructions she typed the letter in an encrypted form and forwarded copies to high ranking individuals in Thompson-group companies based in Mauritius and Paris. This has become widely known of the much feted "encrypted fax".
33. Delique initially couldn't find the original handwritten letter by Mr. Thétard. She however found it and handed it to investigators in June or July 2001.
34. This letter prompted a close examination by investigators of the relationship between Mr. Zuma and Mr. Shaik, which led to evidence that over several years Mr. Shaik had made payments to and on behalf of Mr. Zuma.
35. Considering Mr. Zuma's political status, investigators were cautious at this stage to name him in any documents. Mr. Zuma was simply referred to as "Mr X". The investigators also did not raid Mr. Zuma's offices and residences. The involvement of Mr. Zuma first came to light to the public in an article in the Mail & Guardian newspaper of 29 November 2002.
36. Mr. Zuma's legal team immediately sought confirmation that Mr. Zuma was being investigated. In July 2003 the DSO sent Mr. Zuma a list of 35 questions to which it required answers. Clearly no decision had been made to charge Mr. Zuma at this stage and the possibility was recognised that he may be able to supply an innocent explanation.
37. After several exchanges, Mr. Zuma attempted to respond to the interrogatories by attempting to refute the case against him and denying any bribe.
38. The DSO investigation team considered Mr. Zuma's answers and disputed his protestations of innocence. The investigators were instead of the mind that the evidence tended to confirm the contents of the encrypted fax; and that Mr. Shaik and Mr. Zuma had a corrupt relationship, in that the payments made by Mr. Shaik to and on behalf of Mr. Zuma were for corrupt purposes. The investigators therefore recommended that charges should be laid against Mr. Zuma.
39. The NDPP at the time, Mr. Bulelani Ngcuka ("Mr. Ngcuka"), and the head of the DSO at the time, Mr. McCarthy, did not however accept the investigators' recommendation in respect of Mr. Zuma. On 23 August 2003 Mr. Ngcuka held a press conference together with the then Minister of Justice, Mr. Penuell Maduna, in which the former made the controversial statement while a prima facie case existed against Mr. Zuma, he would not be charged. The reason for this was that the "prospects of success are not strong enough. That means that we are not sure if we have a winnable case."
40. Mr. Ngcuka explained that charges would be pursued against Mr. Shaik and several companies in which he was involved (known as the Nkobi group of companies); and that the issue of Mr. Zuma's failure to declare gifts and income would be referred to Parliament. Mr. Ngcuka also suggested that a prolonged investigation would not be pursued against Mr. Zuma, but in answer to a question from a journalist, stated that the situation would be reviewed if further evidence against Mr. Zuma arose.
41. On 25 August 2003 Mr. Shaik was presented with a draft charge sheet which referred to benefits given to Mr. Zuma by Mr. Shaik and companies under his control.
42. On 30 August 2003 Mr. Zuma launched an application in this Court (under case 24517/2003) for access to the handwritten version (by Mr. Thétard ) of the encrypted fax. That application was never pursued as the evidence was tendered in the trial of Mr. Shaik.
43. On 30 November 2003 Mr. Zuma also laid a complaint with the Public Protector about the manner in which allegations against him had been handled. In a report of 28 May 2004 the Public Protector found that Ngcuka's press statement infringed Mr. Zuma's dignity.
44. Following lengthy negotiations with the Thomson group of companies, Mr. Thétard deposed to an affidavit on 20 April 2004 confirming that he was the author of the encrypted fax. This clearly firmed up the case against Mr. Shaik and Mr. Zuma. However, in a further affidavit of 10 May 2004, Mr. Thétard attempted to back-track, suggesting that the fax was a "rough draft of a document in which I intended to record my thoughts on separate issues in a manner which was not only disjointed but also lacked any circumspection". Mr. Thétard also suggested that the fax had never been transmitted but was crumpled up and discarded. This revised version was, quite correctly, viewed by the investigators and the NPA as being untruthful.
45. The trial against Mr. Shaik commenced on 11 October 2004 before Judge Squires in the KwaZulu-Natal High Court and ran for 75 days. On 2 June 2005 Mr. Shaik was convicted for fraud and corruption and sentenced to 15 years imprisonment.
46. In his judgment, Squires J noted that the State's case was that between the years from 1994 to 1999 a total sum of R1 340 078 was paid by Mr. Shaik and companies under his control to and on behalf of Mr. Zuma. The State further alleged that this was done corruptly, "the object being to influence Mr. Zuma to use his name and political influence for the benefit of Mr. Shaik's business enterprises or as an ongoing reward for having done so from time-to-time."
47. Squires J further accepted that Mr. Zuma had as a matter of fact intervened on several occasions to try and assist Mr. Shaiks's business interest. This illustrated a "readiness in both Shaik to turn to Mr. Zuma for his help, and Mr. Zuma's readiness to give it." Mr. Zuma's help was described by the Court as "the influence and weight of his political office". The Court found that this "mutually beneficial symbiosis" must have "generated a sense of obligation in the recipient".
48. Squires J found that Mr. Shaik embarked on a "never ending series of payments" when he realised Mr. Zuma's indebtedness and the fact that Mr. Zuma was living beyond his means. He also "realised the possible advantages to his business interests of providing the means to retain Mr. Zuma's goodwill by helping him to support a lifestyle beyond what he could afford on a Minister's remuneration."
49. On 14 June 2006, the then President of the country, Mr. Thabo Mbeki, dismissed Mr. Zuma from the position as Deputy President, based upon the finding by the KwaZulu-Natal High Court that the relationship between Mr. Zuma and Mr. Shaik was unsavoury.
50. In the wake of the trial of Mr. Shaik, on 17 June 2005 the prosecution team briefed Mr. McCarthy and the new NDPP, Mr. Vusi Pikoli ("Mr. Pikoli"). Thereafter, on 20 June 2005 Mr. Pikoli announced that a decision had been made to charge Mr. Zuma. Both Mr. Zuma and Mr. Mbeki had been forewarned of this announcement.
51. The reasons given for this new decision can be summarised as follows:
51.1. Most of the evidence against Mr. Shaik was documentary. Each piece fitted a "comprehensive puzzle" supporting the State's case.
51.2. When Mr. Ngcuka made his decision not to prosecute Mr. Zuma, the State had been unable to obtain confirmation of the documents from Mr. Thétard and Mr. Shaik. When Mr. Shaik testified he had confirmed many of these documents.
51.3. Mr. Shaik was the person best placed to provide an innocent explanation for much of the documentary evidence. His explanations however were found to lack credibity (for instance, the suggestion that payments to Mr. Zuma were loans). The lack of an innocent explanation by Mr. Shaik confirmed the State's case.
51.4. New evidence provided by Mr. Shaik also supported the State's case and confirmed forensic evidence of payments made to and on behalf of Mr. Zuma as part of a deliberate agreement to keep Mr. Zuma in politics.
51.5. The Court had ruled on the admissibility of the encrypted fax and the credibility of the state's witnesses. The Court had also found a corrupt relationship with Mr. Zuma and that the bribe as recorded in the encrypted fax was true.
52. I would also note that in a subsequent appeal by Mr. Shaik to the Constitutional Court (reported as S v Shaik and Others 2008 (5) SA 354 (CC) at para 44), it is noted that Mr. Shaik's legal representatives "very properly conceded in argument that, given the criminal conviction of Mr Shaik, it must be accepted for the purpose of these proceedings that Mr Shaik did pay bribes to Mr Mr. Zuma."
53. The upshot of all of the above factors was essentially that the NDPP at this stage was satisfied on a conspectus of all the evidence a prima facie case did exist, in the sense that a "winnable" case against Mr. Zuma could now be made out.
54. On 29 June 2005 Mr. Zuma was summonsed to, and appeared in the Durban Magistrates' Court, at which stage the matter was postponed to 11 October 2005 for further investigation. This was necessary as the DSO extended the investigation to include fraud in Mr. Zuma's false declarations to Parliament's register of members' interests, the secretary of Cabinet and the South African Revenue Services ("SARS"). The investigation also included a contravention of the Income Tax Act 58 of 1962.
55. The investigation also continued in that on 12, 15 and 18 August 2005 a series of search warrants were attained from the Judge President of this Court of various premises, including Mr. Zuma's residences and offices, and the offices of associates. These searches were carried out on 18 August 2005. The DSO believed that these searches were necessitated because previously attempts had been made to avoid searching premises associated with Mr. Zuma. Furthermore, Mr. Shaik had testified that the payments to Mr. Zuma were on-going, although he refused to give any details. Fresh searches were required to attain evidence of these further payments.
56. These searches led to a plethora of proceedings challenging the search warrants, including the following:
56.1. One of Mr. Zuma's attorneys, Julekha Mahomed, brought an application in the Johannesburg High Court (under case number 19104/05). This application was upheld on 14 September 2005, although leave to appeal to the SCA was granted.
56.2. On 10 October 2005 Mr. Zuma launched proceedings in the KwaZulu-Natal High Court (under case number 14116/05) to set aside the search warrants of his premises and those of his principal attorney, Mr. Hulley. This application was upheld by Judge Hurt on 15 February 2006, although leave to appeal to the SCA was granted;
56.3. On 14 October 2005 Mr. Shaik and his business interests launched similar proceedings in the KwaZulu-Natal High Court (under case 14550/05);
56.4. On 17 November 2005 one Jurgen Kogl and a company, Cay Nominees (Pty) Ltd, launched proceedings in this Court. This case was answered and the Applicants never pursued.
57. These proceedings slowed down the progress of the investigators. Furthermore, it was necessary to sift through 93 000 pages of documents and computer information which had been seized, and to conduct a forensic audit into Mr. Zuma's financial situation and his relationship with Mr. Shaik in the period after that considered in Mr. Shaik's trial.
58. On 3 November 2005 a provisional indictment was supplied to Mr. Zuma, which was set down for 31 July 2006. It was clear that this would be amended before the envisaged trial date.
59. In December 2005 the State also applied to the KwaZulu-Natal High Court for a letter of request to the Attorney General of Mauritius for assistance in attaining the documents seized in that jurisdiction in October 2001. This application was made in terms of section 2(1) of the ICICM Act. This was necessary as the Supreme Court of Mauritius ordered the Mauritian authorities not to release the information unless an approach was made with the sanction of the South African courts. Furthermore existing requests did not specify to whom the documents should be handed.
60. On 22 March 2006 the KwaZulu-Natal High Court (per Combrink J) ruled that any determination in this matter had to be made by the criminal court hearing the case against Mr. Zuma.
61. These various challenges meant that the admissibility of much of the evidence remained disputed. Notwithstanding this fact, on 25 May 2006 an instruction was given to auditors KPMG Services (Pty) Ltd to conduct a forensic audit of the documents seized on 18 August 2005.
62. In the circumstances, the State - because of, inter alia, Mr. Zuma's court challenge - was plainly not in a position to proceed with criminal proceedings against Mr. Zuma on 31 July 2006. The State thus sought a postponement, which Mr. Zuma opposed. He also brought an application for the permanent stay of proceedings.
63. The postponement application came before Msimang J in the KwaZulu-Natal High Court in Pietermaritzburg. On 20 September 2006 he handed down a judgment refusing the postponement application. When the State could not proceed, the matter was struck off the roll.
64. On 12 December 2006 the State again applied for a letter of request to the Mauritian authorities - this time in terms of section 2(2) of the ICICM Act. This application was again opposed by Mr. Zuma. This application was granted by Levinsohn DJP (as referred to in paragraph 22.3 above). This decision was appealed by Mr. Zuma to the SCA, but the State was granted leave to execute the letter of request pending the appeal (per Hugo J, reported as National Director of Public Prosecutions v Zuma and Others 2008 (1) SACR 243 (D)).
65. The investigations continued at the same time, as well as proceedings in the search warrant case and the appeal against the letters of request.
66. Of relevance for the current application, in an affidavit of 13 December 2007 in the Constitutional Court (referred to in paragraph 24.2 above), the DSO's investigator, Johan du Plooy, stated that:
"The accumulation of all the new evidence obtained as a result of the 2005 searches and the further investigation pursuant to the new documents and perspectives, together with the consequent re-analysis of the old documents and evidence, provides a firm basis for the institution of prosecution."
67. On 27 December 2007 the current acting NDPP again reconsidered the case against Mr. Zuma and again decided to recharge him. In so doing he had clearly determined that a prima facie case existed against Mr. Zuma and that on a conspectus of all the available evidence a good case existed against Mr. Zuma, which enjoyed good prospects of success.
68. By this stage the KPMG audit must have been completed. It follows from the NDPP's decision of 27 December 2007 that it either supported the State's extended case; or at least did not detract from the existing evidence against Mr. Zuma.
69. On 28 December 2007 an indictment with 18 charges was served on Mr. Zuma. Many of these charges were new and materially different from those against Mr. Shaik, and extended beyond the period covered in the Mr. Shaik trial. This again is a clear indication that the new evidence collected supported the State's case.
70. The potency of the State's case thereafter only increased, in that in judgments of 31 July 2008, the Constitutional Court (referred to in paragraphs 22.2 and 22.3 above) effectively: (a) dismissed the challenges to the search warrants of August 2006; and (b) upheld the letter of request made under section 2(2) of the ICICM Act. While the admissibility of evidence obviously remains an issue that can be raised in the trial court, these judgments removed significant obstacles placed in the path of the State's case.
71. Matters were however complicated when on 12 September 2008 the KwaZulu-Natal High Court, per Nicholson J (referred to in paragraph 22.1 above), effectively set aside the NDPP's decision of 27 December 2008 to proceed with charges against Mr. Zuma. The Court however highlighted (at paragraph 19 of its judgment) that the matter had "nothing to do with the guilt or otherwise of [Mr. Zuma] on the charges brought against him. They deal with the disputed question of a procedural step that the State was required to comply with prior to instituting proceedings against [Mr. Zuma]. If there are defects, at best for [Mr. Zuma], the present indictment may be set aside. Once the defects are cured, subject of course to any other applications that are brought, the State is at liberty to proceed with any charges they deem meet."
72. The judgment of Nicholson J did thus not detract at all from the strength of the case against Mr. Zuma. His findings and orders were also subsequently comprehensively dismissed by the SCA in its judgment of 12 January 2009 (referred to in paragraph 22 above). This judgment and order effectively reinstituted the indictment against Mr. Zuma.
73. Although this application is subject to a further appeal in the Constitutional Court (under case number CCT04/09), which is scheduled to be heard on 12 May 2009, the fact remains that as matters stood after 12 January 2009 the case against Mr. Zuma existed and remained strong. The fact that the NDPP pursued the appeal to the SCA and opposes the application to the Constitutional Court with such vigour is a clear indication that it remained committed to its case against Mr. Zuma.
74. On 4 February 2009 Mr. Zuma appeared in the KwaZulu-Natal High Court. In terms of an agreement, attached as "JS 2", it was noted that Mr. Zuma wished to bring an application for a permanent stay of proceedings. The criminal proceedings were thus postponed provisionally to 25 August 2009; and timetables were set for the permanent stay proceedings. The permanent stay proceedings by Mr. Zuma is scheduled to be heard on 25 August 2009, subject to the qualification that if the Constitutional Court upheld Mr. Zuma's appeal against the SCA finding (under case CCT04/09), the need for the permanent stay application would obviously fall away.
75. An indication was also given before the SCA's judgment that Mr. Zuma's legal representatives would submit representations to the NDPP to reconsider the prosecution of Mr. Zuma.
76. Mr. Zuma's legal representatives made submissions on 10 February 2009 to the NDPP to reconsider the prosecution. By agreement a hearing was scheduled for 20 February 2009.
77. In a letter of 18 March 2009, a copy of which is attached as "JS 3", the DA's leader, Ms. Helen Zille ("Ms. Zille"), expressed her concern to the NDPP regarding press reports that charges against Mr. Zuma were to be dropped. Ms. Zille thus called on the NDPP to deny the reports about the proposed withdrawal of charges immediately and unequivocally. No denial was forthcoming by the NDPP.
78. In a further letter to the NDPP of 19 March 2009, a copy of which is attached as "JS 4", Ms. Zille sought an opportunity to make submissions for consideration alongside those made by Mr. Zuma.
79. In a response of 20 March 2009, a copy of which is attached as "JS 5", the NDPP answered that the DA was "most welcome to make written representations" to him as long as they were received before 27 March 2009.
80. In a letter of 22 March 2009, a copy of which is attached as "JS 6", Ms. Zille sought a copy of the submissions made by Mr. Zuma's legal representatives. Clearly the DA's ability to make submissions to the NDPP would be compromised if it was unaware of the bases on which Mr. Zuma motivated the discontinuance of his prosecution.
81. On 23 March 2009, in a letter attached as "JS 7", the NDPP responded that he was "not at liberty to disclose the representations made by the legal team representing Mr. Zuma as representations are considered confidential and made without prejudice by a representing party." The DA strongly disagreed with this stance.
82. The need for proper disclosure is heightened even further in light of press reports at the time suggesting that Mr. Zuma's representations included what is referred to as the "Sampson Option" - i.e. that if he is prosecuted, he will bring down with him a range of others, including former President Mbeki, the NPA and members of the judiciary. The DA understands this to mean that Mr. Zuma holds evidence of complicity and / or impropriety by others in similar matters to the charges which he faces, which he will release unless prosecution is discontinued.
83. The DA has had no insight into Mr. Zuma's representations. However, if it is true that Mr. Zuma has presented evidence of criminal activity by others, then the clear requirement is that the police and prosecuting authorities must investigate and prosecute those involved.
84. The DA's submissions why the prosecution should not be discontinued were forwarded to the NDPP on 26 March 2009, a copy of which is attached as "JS 8". A copy of a covering letter which accompanied the submissions is attached as "JS 9". A simultaneous press release summarising the DA's submissions was also released.
85. The content of these submissions has largely been dealt with above. In essence four main points are made:
85.1. The first was to remind the NDPP of the constitutional injunction that he and the prosecuting authority to act without fear, favour or prejudice. This is an incident of the rule-of-law, of which the NPA should be the staunchest defender. The reality is that if the NPA discontinues proceedings, there is no realistic possibility that an accused would have to answer for their actions in a court. This does not mean persecuting the accused, but merely bringing the accused before a fair court.
85.2. The second was that the presumption of innocence is not a protection from criminal proceedings, but an incident of a fair trial in a court. There is no substitute for a court making a finding on criminal charges.
85.3. The third related to the legitimacy of the criminal justice system. In this regard it was noted that after extensive investigations the NPA had consistently stated that it had compiled a serious case against Mr. Zuma. If the NPA withdraws charges, the inescapable inference will be that it has kow-towed to those in positions of power. This will undermine public confidence in institutions of justice.
85.4. The last was that the continuance of proceedings does not violate Mr. Zuma's constitutional rights. His rights are protected and guaranteed by fair proceedings.
86. In conclusion it was noted that -
"If the criminal trial is discontinued for whatever reasons, the following negative consequences will occur:
37.1 The NPA will be failing in its constitutional duty to bring an accused person to trial;
37.2 Public faith in the institutions of justice will be weakened, with resultant negative effects on the rule of law and the fight against crime in South Africa;
37.3 Mr Mr. Zuma himself will not get the opportunity to clear himself.If the criminal trial "
87. The date for the NDPP's decision was postponed on several occasions. On Friday, 3 April 2009, the NDPP's office announced that the decision would be known on Monday, 6 April 2009.
88. It was however also widely reported that the NDPP had already made a decision and had on Thursday, 2 April 2009 already informed Mr. Zuma's legal representatives that the charges against Mr. Zuma would be dropped. This information was obviously passed on to Mr. Zuma's supporters, who celebrated in the streets outside the ANC's headquarters in Johannesburg.
89. In announcing the decision to discontinue the prosecution against the Third Respondent, the NDPP released a comprehensive statement. I annex a copy thereof marked "JS 10" ("the statement"). In the statement the NDPP furnished his reasons for the decision. Such reasons may be summarised as follows:
89.1. Insofar as representations were received on the questions of the substantive merits of the prosecution, on the so-called fair trial defences and on the practical implications and considerations of continued prosecution, the NDPP was satisfied that there was nothing which militated against the continuation of the prosecution. The decision to discontinue the prosecution was, accordingly, based solely upon policy aspects militating against prosecution;
89.2. As demonstrated by the content of certain communications referred to in the statement, Mr McCarthy as the former head of the DSO, had used the legal process for a purpose outside and extraneous to the prosecution itself, that is to say for a collateral and illicit purpose. This amounted to an abuse of process, offending against the NDPP's sense of justice and having the result that it would be unfair as well as unjust to continue with the prosecution.
90. Significantly, however, the NDPP felt compelled to add that "the prosecution team itself had recommended that the prosecution should continue even if the allegations are true, and that it should be left to a court of law to decide whether to stop the prosecution".
91. The recordings referred to by the NDPP consisted of the following:
91.1. What were described as "Calls about manipulating the timing of charges for other purposes". In this connection recordings of three telephone conversations between Mr McCarthy and Mr Ngcuka were referred to;
91.2. What the NDPP referred to as "Calls about manipulating the filing of papers in the Constitutional Court for other purposes", four telephone conversations between Mr McCarthy and Mr Ngcuka were referred to, and four SMS exchanges; and
91.3. Under the heading "Apparent political affiliation" a voicemail from Mr McCarthy to one F Davids was referred to, while two SMS exchanges between Mr McCarthy and one Luciano (described as being a person in the private intelligence industry) were referred to under the heading "Discussions about seemingly political solutions to NPA cases".
92. The NDPP's reasons for his decision were however narrower. With reference to these communications the NDPP found that there had been and abuse of process which consisted of the timing of the charging of Mr Zuma and he concluded that Mr. McCarthy's conduct so offended his sense of justice that it would be "unfair as well as unjust to continue with the prosecution".
93. The conclusion that Mr McCarthy's conduct, as revealed in these communications, was of such a character so as to render it "neither possible nor desirable for the NPA to continue with the prosecution of Mr Zuma" was, so the DA is advised, unreasonable and irrational, to an extent that the decision was thereby rendered unlawful.
94. To the degree that Mr McCarthy was a party to manipulating the timing of exactly when Mr Zuma was to be recharged (that is to say, whether this should occur before or after the ANC's National Conference held in Polokwane during December 2007), this was plainly most irregular, and worthy of strong criticism.
95. However, in the context of the matter as a whole and given:
95.1. the absence of any improper motive tainting the decisions to charge and to recharge Mr Zuma;
95.2. that the prosecution "has been conducted by a committed and dedicated team of prosecutors and investigators who have handled a difficult case with utmost professionalism and who have not been implicated in any misconduct"; and
95.3. the recommendation of that team that the prosecution should continue even if the allegations were true,
the impropriety of Mr McCarthy's conduct in allegedly manipulating the timing of the recharging of Mr Zuma was far outweighed by the public interest considerations in favour of continuing the prosecution. This was all the more so where there was a mass of evidence pointing to Mr. Zuma's guilt on serious charges, which had been painstakingly accumulated over a period of several years.
96. Exactly the same can be said in respect of Mr McCarthy's involvement in the alleged manipulation of when the NPA's answering affidavits were to be filed in the Constitutional Court, in the appeal against the judgment of the Supreme Court of Appeal in the search warrants case. Again, the irregularity of Mr McCarthy's conduct is not to be minimised. However, it provides no rational basis whatsoever, either taken alone or together with the remaining evidence of Mr McCarthy's misconduct, to discontinue the prosecution. Nor does the evidence of Mr McCarthy's political affiliation and loyalty or of his views on "seemingly political solutions to NPA cases" take the matter any further. However, as pointed out above, the NDPP seems to have confined the basis of his decision to the narrow question of the timing of the recharging of Mr. Zuma.
97. The evidence put up by the NDPP in support of his conclusion that Mr McCarthy's abuse of the legal process was of such a character and extent that it was neither possible nor desirable to continue with the prosecution of Mr Zuma falls way short of justifying such conclusion on any rational basis. In the result, and as pointed out elsewhere, the decision was not rationally connected to the reasons given for it by the NDPP, or to the information before the NDPP, or to the purpose of the empowering provision, or to the purpose for which it was taken.
98. In truth, so tenuous or absent is any rational connection between the decision and the reasons given for it by the NDPP that the inference must be that the NDPP was regrettably no longer in a position to make an impartial and unbiased decision on the matter.
WHY THE DA HAS A RIGHT TO THE RELIEF SOUGHT
99. In light of the above, the DA submits that it has a right to the relief sought, based upon both:
99.1. The provisions of PAJA dealt with above; and/or
99.2. The provisions of the Constitution, which enshrine the right to lawful administrative action and furthermore encapsulate the principle of legality and the doctrine of the rule-of-law.
100. The facts relied upon by the NDPP as constituting an alleged abuse of process do not warrant the discontinuation of the prosecution. In this regard the findings of the SCA in Mr. Zuma's recent appeal (referred to in paragraph 22 above) are apposite. As stated by Harms DJP (at para 37):
"A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which, in any event, can only be determined once criminal proceedings have been concluded."
101. The NDPP's reliance upon the conduct of Mr McCarthy as having given rise to an abuse of process sufficient to require the discontinuation of the prosecution was irrational and unlawful. The broader considerations of the integrity of the criminal justice system plainly required that, regard being had to the circumstances of Mr Zuma, the history of the matter and the nature of the charges being preferred against him, the prosecution should be continued. In the absence of any sufficient indication that the NPA was using its powers for an ulterior purpose and was not bona fide intent on securing a conviction in the ordinary course, there was no basis in law to discontinue the prosecution.
102. The DA further notes that the discontinuance of the proceedings against Mr. Zuma contradicts the NPA's Prosecution Policy, a copy of which is attached as "JS 11". This is and of itself a violation of the rule-of-law and causes the decision to be fatally flawed and invalid.
103. The Preface to this Policy reads:
"Crime cannot be allowed to undermine the constitutional democracy in South Africa. The efforts of the Prosecuting Authority should therefore be directed at reducing pervasive criminal activities. An efficient Prosecuting Authority will also enhance public confidence in the criminal justice system. Prosecutors are the gatekeepers of the criminal law. They represent the public interest in the criminal justice process. Effective and swift prosecution is essential to the maintenance of law and order within a human rights culture. Offenders must know that they will be arrested, charged, detained where necessary, prosecuted, convicted and sentenced."
104. Concomitantly, the DA states that discontinuing criminal proceedings against the powerful when a good case exists undermines the Constitution and law and order within a human rights culture.
105. The Introduction to the Policy further notes that it is binding on the NPA. In terms of section 4 of the Policy under the heading "Criteria governing the decision to prosecute" the following is stated:
"The decision whether or not to prosecute must be taken with care, because it may have profound consequences for victims, witnesses, accused and their families. A wrong decision may also undermine the community's confidence in the prosecution system. Resources should not be wasted pursuing inappropriate cases, but must be used to act vigorously in those cases worthy of prosecution.
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.
This assessment may be difficult, because it is never certain whether or not a prosecution will succeed. In borderline cases, prosecutors should probe deeper than the surface of written statements.
...
This test of a reasonable prospect must be applied objectively after careful deliberation, to avoid an unjustified prosecution. However, prosecutors should not make unfounded assumptions about the potential credibility of witnesses.
The review of a case is a continuing process. Prosecutors should take into account changing circumstances and fresh facts, which may come to light after an initial decision to prosecute has been made.
This may occur after having heard and considered the version of the accused and representations made on his or her behalf. Prosecutors may therefore withdraw charges before the accused has pleaded in spite of an initial decision to institute a prosecution." (emphasis added)
106. What is clear is that the primary consideration in whether to discontinue a prosecution is whether a case can be made which enjoys reasonable prospects of success. In the current case the NPA has throughout been clear that a good case exists.
107. The Policy continues:
"Once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable prospect of a conviction, a prosecution should normally follow, unless public interest demands otherwise."
108. This recognises that in some cases public policy may militate against a prosecution. According to the Policy this involves an assessment of the nature and seriousness of the offence; the interests of the community and the need for deterrence; and the circumstances of the offender. The Policy however also notes that "[i]t is important that the prosecution process is seen to be transparent and that justice is seen to be done."
109. The Policy thereafter deals with the issue of "stopping of proceedings" after a plea has been entered. This is not relevant in the current case in which Mr. Zuma has successfully managed to avoid ever entering a plea to the indictment. In any event, the considerations in these circumstances remain that the primary consideration remains whether it will be possible for the State to prove its case or where other exceptional circumstances have arisen which make the continuation of the prosecution undesirable.
110. I would also note that the United Nation's Guidelines of the Role of Prosecutors, a copy of which is attached as "JS 12", states as follows:
"15. Prosecutors shall give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights and other crimes recognized by international law and, where authorized by law or consistent with local practice, the investigation of such offences."
111. The decision also violates South Africa's international law obligations to fight corruption by officials, including its obligations under:
111.1. The Southern African Development Community Protocol Against Corruption, which South Africa signed on 14 August 2001, particularly the "preventative measures" which were undertaken in article 4;
111.2. The African Union Convention of Preventing and Combating Corruption, adopted on 11 July 2003, particularly the measures to "fight against corruption and related offences in the public service" in article 7; and
111.3. United Nations Convention against Corruption, which South Africa signed on 9 December 2003 and ratified on 22 November 2004. This obliges the State to take preventative measures to deal with the corruption and bribing of public officials (articles 7 and 15).
112. In the circumstances, the harm is clear and imminent; and the DA has no alternative but to approach this Court.
URGENCY
113. This matter is self-evidently urgent.
114. In the first place, the matter involves issues of governance at the highest levels in a matter of overwhelming public interest. The potential reputational damage to the prosecuting authorities, and the associated loss of confidence in the organs of state concerned with crime prevention and prosecution, cannot be overstated. It is in the interest of the society as a whole and of these organs of state that the matter is concluded with the greatest of urgency.
115. In the second place, Mr. Zuma and his legal representatives have repeatedly insisted upon the criminal proceedings against him being dealt with on an urgent basis. It was for this reason that they refused to allow the postponement of the proceedings on 31 July 2006, leading to the charges at that stage being struck off the roll.
116. In the third place, urgent review relief is required in order to assess the status of other pending proceedings - most notably the appeal by Mr. Zuma in the Constitutional Court and his envisaged application for a permanent stay of proceedings. If relief is not attained urgently those proceedings will be compromised. Accordingly, once any review relief is eventually attained, any resumption of criminal proceedings against Mr. Zuma will be frustrated by the need to resuscitate these other proceedings; or to begin with these proceedings afresh.
117. Fourthly, it is clearly in the public interest that whether or not Mr Zuma is to be prosecuted is finalised sooner rather than later. There has been a lamentable series of delays in the matter to date. The administration of justice (and public confidence in the administration of justice) requires that this matter (which is so patently one of great import for the country and for the proper functioning of our constitutional democracy) be dealt with out of the ordinary course and according to an accelerated timetable which does not prejudice any of the parties.
CONCLUSION
118. Section 172(1)(a) of the Constitution, the DA submits, enjoins this Court to declare any law or conduct that is inconsistent with the Constitution to be invalid to the extent of its inconsistency. The DA submits that the decision constitutes "conduct" contemplated in this constitutional provision. That conduct, for the reasons advanced, is inconsistent with the requirements of the Constitution and/or PAJA.
119. This Court is in the circumstances enjoined to grant the review and declaratory relief sought in the Notice of Motion to which this affidavit is attached, together with the costs of two counsel.
JAMES SELFE
I certify that:
I. The Deponent acknowledged to me that:
A. He knows and understands the contents of this declaration;
B. He has no objection to taking the prescribed oath; and
C. He considers the prescribed oath to be binding on his conscience.
II. The Deponent thereafter uttered the words, "I swear that the contents of this declaration are true, so help me God."
III. The Deponent signed this declaration in my presence on the 7th day of April 2009.
COMMISSIONER OF OATHS
Source: Democratic Alliance, April 7 2009
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