IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case No. CCT /2008
In the matter between:
THABO MVUYELWA MBEKI Applicant
and
JACOB GEDLEYIHLEKISA ZUMA 1st Respondent
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 2nd Respondent
FOUNDING AFFIDAVIT
I, the undersigned
THABO MVUYELWA MBEKI
do hereby make oath and state that:
1. I am the applicant in this matter. The facts herein are within my personal knowledge and belief, unless the contrary is stated or the context indicates otherwise, and are true and correct.
2. I bring this application in my personal capacity and in my capacity as President of the Republic of South Africa, as head of the National Executive, as well as in the public interest. I may just add that the National Executive took a formal decision in principle on the 18 September 2008 confirmed on 19 September 2008 and affirmed today to appeal the judgment referred to in paragraph 6 of this affidavit insofar as it concerned the National Executive.
3. Insofar as I make legal submissions I make them on the advice of my legal representatives which advice I believe to be correct.
The Respondents
4. The First Respondent is JACOB GEDLEYIHLEKISA ZUMA an adult male of 8 Epping Road, Forest Town, Johannesburg.
5. The Second Respondent is the National Director of Public Prosecutions ("NDPP") in his capacity as such, and thus as acting head of the National Prosecuting Authority ("NPA"), appointed in terms of section 10 of the National Prosecuting Authority Act 32 of
1998 ("the NPA Act"). The Second Respondent's address for the purposes of these proceedings is VGM Building, 123 Westlake Avenue, Weavind Park, Silverton, Pretoria.
The nature and purpose of this application
6. This is an application for direct access to this court on an urgent basis, and for leave to appeal against certain findings made by the court (per Nicholson J) in its judgment handed down on 12 September 2008 in the High Court (Natal Provincial Division) under case no. 8652/08 in the matter between JACOB GEDLEYIHLEKISA ZUMA and the National Director (hereinafter referred to as the Zuma matter). A copy of the judgment is annexed hereto marked "TMM1" (‘the judgment').
7. Alternatively, to the granting of leave to appeal, this is an application for direct access and for an order:
7.1 declaring:
7.1.1 that the court, in the Zuma matter ought not to have made findings of and concerning the Applicant in his personal capacity or in his capacity as President of the Republic of South Africa and head of the National Executive, without having afforded him a hearing.
7.1.2 that the findings of the court in the Zuma matter and concerning the Applicant personally, or in his capacity as President of the Republic of South Africa and head of the National Executive, made without affording him a hearing on those matters to which the findings relate, constitute a violation of his constitutional rights including the Applicant's rights in terms of section 10 and section 34 of the Constitution.
7.2 Setting aside all findings of law and fact in the judgment concerning the Applicant, in any of his capacities aforesaid, and of, or concerning, any member or former member of the National Executive who were not afforded a hearing in the Zuma matter.
7.3 Directing that the costs of this application be costs in the appeal, alternatively, ordering such Respondents who oppose this application to pay the costs thereof.
7.4 Granting the Applicant such further and/or alternative relief as this Court might deem appropriate in the circumstances.
Summary of the issues in the judgment
8. The very narrow issue before the court in the Zuma matter was, I gather from the judgment, whether the First Respondent had a right to make representations to the Second Respondent, and whether his prosecution was invalid on account of him not having been afforded such an opportunity.
9. It appears from the judgment that the First Respondent's case was that he had been denied an opportunity to make representations in terms of section 179(5) of the Constitution.
10. The Applicant apparently made allegations in his affidavit challenging his prosecution, to the effect that there must have been political interference in the decision to prosecute him and ascribed as a motive for that the alleged rivalry between the two of us for the position of President of the African National Congress.
11. The Second Respondent, it appears from the judgment, sought to strike out the allegations of political interference from the First Respondent's affidavits.
12. Another party also sought to join the proceedings as amicus curiae. In the course of dealing with in particular, the application of the amicus and the striking-out application, the court purported to make the findings, albeit obiter, that I am seeking to have set aside in these proceedings, and more particularly, as described here-below.
13. I respectfully submit that it was not necessary for the learned judge to make the findings I am appealing against, or seeking to set aside, in order for him to decide the real issue that was before him. In any event, it was improper for the court to make such far-reaching findings concerning me, in my capacities I described above, and concerning the members and former member of the National Executive without first giving us a hearing.
14. I am advised that even if our non-joinder had not been raised by any of the parties in the Zuma matter the learned judge, if he was of the view that the serious and defamatory allegations pertaining to me, in the capacities aforementioned, and pertaining to members or a former member of the National Executive were relevant, should have raised such non-joinder mero motu.
The findings in the judgment concerning the applicant and the National Executive
15. The court in the judgment made several findings, some express, some implied, concerning me and members and a former member of the National Executive.
15.1 The court a quo makes the finding that the decision in my capacity as President of the Republic of South Africa to relieve the then Deputy President of the Republic of South Africa of his powers and functions ‘was unfair and unjust given the fact that he applicant was not given a chance to defend himself in a court of law'.[1]
15.2 The court a quo in seeking to determine whether the Second Respondent was influenced by the executive suggests that the Second Respondent would not be ‘privy to the oral or written instructions that the executive may have given to the prosecuting authority'.[2]
15.3 The court a quo found that there was a political struggle or rivalry between the First Respondent and me, which rivalry impacted on the issues to be decided in the application before him[3], and that my decision to stand as party leader was controversial and not ‘in accordance with the Westminster system we espouse in this country'.[4]
15.4 Relying on the comment that the former NDPP had the ‘generous support' of Mr. Maduna, and on the presence of the Minister at the press conference referred to, the court a quo drew the inference that the decision not to prosecute the First Respondent was politically driven.[5]
15.5 In referring to the decision to withdraw charges against Thint in the Shaik matter, and the approach made to Mr. Maduna by Thint, the court a quo concluded that it was clear that the ‘Minister must have made his input into the offer and its consequences for the prosecution against Shaik'. The learned judge then concludes that ‘at its very lowest Mr. Maduna seems to have played a not insignificant part in the planning or the strategy in question, whatever its end objective might be. Given the constitutional imperative for the NDPP to be totally independent, and decide without fear or favour it was a most regrettable occurrence, in the light of the fact that it also constituted a serious criminal offence'[6] His conclusion is thus that Mr. Maduna, as Minister of Justice and Constitutional Development, interfered with the execution by the former National Director of his functions, and that the applicant was aware of this presumably unlawful conduct and agreed therewith.
15.6 The court a quo came to the conclusion that the meetings between the NPA, the prosecution team, and the Director General in the Presidency from about February 2006 could only relate to matters concerning the complicity of the First Respondent.[7]
15.7 The learned judge concludes that there was no attempt ‘by Mr. Pikoli to deal with the allegation of the blatant interference by the Minister and the fact that Mr. Pikoli asserted his rights of independence'.[8] The learned judge goes on to state that ‘there was no refutation that the Selebi warrants were cancelled by Mr. Mpshe after political interference and that Pikoli was suspended because he refused to do so'.[9] Mr. Pikoli is the NDPP who has been suspended. Mr. Mpshe is the Second Respondent. He then concludes that the most plausible inference was that there was ‘again political interference at the very time Mr. Mpshe was contemplating charging the applicant'[10] implying further that the decision to prosecute Mr. Selebi, the National Commissioner of Police, was not palatable to me while the decision to prosecute the First Respondent was palatable to me in my capacity as President.[11]
15.8 The court a quo infers from the timing of the decision by the Second Respondent to indict the First Respondent , together with the suspension of Mr. Pikoli, that the ‘baleful political influence was continuing'.[12] He attributes this political interference to the respective Ministers of Justice and Constitutional Development, concluding that ‘What Mr. Maduna and his successor Miss Mabandla did is also the responsibility of the President and his whole Cabinet'.[13] The learned judge then goes further to conclude that I not only knew about the political interference of Mr. Maduna but also agreed to it[14] and that in terms of the law and the Constitution, ‘there is a responsibility attributable to the President and his cabinet for what Mr. Maduna did. This would, of necessity, also apply to what Ms. Mabandla did'.[15] These actions, the learned judge found, constituted political meddling in the prosecution of the First Respondent.
15.9 These findings and conclusions are summarized by the learned judged in his reference to them as a ‘distressing pattern' in the behaviour of the parties which he concludes are indicative of political interference, pressure or influence. He finds that this pattern of behaviour ‘commences with the ‘political leadership' given by Mr. Maduna to Mr. Ngcuka',[16] and goes on to say that ‘It is certainly more egregious than the ‘hint' or suggestion' of political interference referred to in the Yengeni matter.[17]
16. I deny all the allegations against me and also dispute the truth and correctness of the "findings" relating to me in my capacities as aforesaid. These findings are serious and have, in fact, been prejudicial to me, to the office that I hold, as well as to the National Executive and the Cabinet member(s) responsible for the administration of justice in particular.
17. The findings do not only suggest that I have acted improperly or without integrity, all of which are injurious to my good name, reputation and my right to human dignity, recognized in section 10 of the Constitution, but also go further in that they in effect say that I have failed to fulfill the Constitutional obligation to uphold and respect the Constitution as the supreme law of the Republic.
18. In terms of Section 83(b) of the Constitution, as President, I am obliged to "uphold, defend and respect the Constitution as the supreme law of the Republic".
19. To the extent that my obligation to respect, defend and uphold the Constitution amounts to a constitutional obligation as envisaged in section 167(4) (e) of the Constitution, it would only be this court that can decide that, albeit only if the issue was properly raised and I, in my capacity as President, had been accorded a fair opportunity to respond or state my case in that regard.
20. I only repeat what is already a matter of public record that as a direct result of the findings made pertaining to me, and in my capacity as President, the National Executive Committee of the African National Congress has decided to recall me as President of the Republic of South Africa. I have consequently decided to tender my resignation with effect from a date to be decided by the National Assembly of the Republic of South Africa.
21. The findings in the judgment pertaining to the present Minister of Justice and Constitutional Development, BRIDGETTE MABANDLA, and the former minister PENUELL MADUNA, are similarly serious.
22. Neither I nor any of these persons were afforded an opportunity, before the respective findings were made, to be heard on the issues in respect of which findings were made, notwithstanding that they involved us directly and were adverse to us. The court, in making such findings, without first affording us a hearing, violated our right in terms of section 34 of the Constitution.
The applicant's standing
23. I respectfully submit that I have standing to bring this application, both in my personal capacity and in my capacity as President of the Republic of South Africa and head of the National Executive as well as in the public interest as contemplated in section 38 of the Constitution.
Direct Access
24. I respectfully submit that it is clearly in the public interest and in the interests of justice that direct access to this court be granted.
25. There is no appeal pending in any court regarding the judgment. It was publicly announced on Wednesday 17th September 2008, apparently on behalf of the Second Respondent, that he was going to appeal against the judgment or order in the Zuma matter. I am not aware of any application for leave that has actually been brought by him. I am also not aware to what court the Second Respondent intends to seek leave to appeal.
26. In any event, the findings that pertain particularly to me and the member or former member of the National Executive to whom I have referred above, are not likely to be appealed against by the Second Respondent, firstly because the Second Respondent never raised the issue of our non-joinder in the Zuma matter, and because it is otherwise not relevant to him.
27. Furthermore, I am advised that the findings relating to me and the other members of the National Executive are arguably not a "judgment or order" as contemplated in section 20 of the Supreme Court Act 59 of 1959 ("the Act"). Only "judgments or orders" are appealable while rulings or findings, per se, are not appealable in terms of the Act. The court that granted the judgment in the Zuma matter is bound by section 20, and is not legally empowered to grant leave to appeal against a mere ruling or finding, which otherwise does not constitute a "judgment or order" as contemplated in the Supreme Court Act, not does it have inherent jurisdiction to grant such leave.
28. I am advised that this court does not have the same limitations as the High Court in that regard.
29. I find myself in a situation where adverse findings which do not amount to a "judgment or order" as I mentioned, have been made concerning me, in my capacities as stated before, and also concerning members and a former member of the National Executive. I have no remedy in the High Court or the Supreme Court of Appeal to correct or set aside those findings.
30. I am advised that in the High Court rescission or variation can only be in respect of a "judgment or order" and not in respect of a ruling or mere finding per se, and that rescission or variation is therefore also not an appropriate remedy in the circumstances of this case.
31. On the other hand, these findings, despite being irregular for the reason I mentioned, having been widely publicised are generally taken by members of the public to be correct. This wrong impression is reinforced by commentators on public media. Some, whilst not elevating them as "conclusive" refer to them as "prima facie" evidence of what the court found. It is now a matter of public record that the National Executive of the African National Congress has been moved by those findings to recall me from my post as President of the Republic of South Africa. As indicated above, I have tendered my resignation.
32. It is unfair and unjust for me to be judged and condemned on the basis of the findings in the Zuma matter. The interests of justice, in my respectful submission, would demand that the matter be rectified.
33. That neither I nor the members of the National Executive were given a hearing in the Zuma mater cannot be disputed or denied. There is no need for oral evidence to establish that fact. This matter is capable of being determined purely on what is stated in the judgment.
Urgency
34. This application is brought on an urgent basis in accordance with the provisions of Rule 11 of the Rules of this court. The urgency of the matter is occasioned by the fact that I have been requested by my political party to step down as President of the Republic in circumstances where:
34.1 the High Court in Pietermaritzburg has made certain adverse findings against me in respect of my conduct as President of the Republic of South Africa;
34.2 the findings of the court a quo were made on the basis of untested evidence and in circumstances where I was not joined as a party, depriving me of the opportunity to clarify to the court and most importantly to the general public the vexatious, scandalous and prejudicial nature of those findings;
34.3 these adverse finding have led to my being recalled by my political party, the African National Congress, a request I have acceded to as a committed and loyal member of the African National Congress for the past 52 years, much as the untested allegations relied on by the court a quo have already caused irreparable harm to my integrity and to the standing of the office I occupy and I fear that if not rectified, I might suffer further prejudice;
34.4 the findings of the court a quo are highly prejudicial to myself both in my capacity as head of State and head of the National Executive, as well as in my personal capacity. Might I add that the findings are equally damaging to the standing of the National Executive which I head, as well as to the current and past Ministers responsible for the administration of justice;
34.5 I am advised that in circumstances such as these where constitutional rights have been violated, the expectation is that a litigant will seek immediate and direct relief in an effort to ameliorate and mitigate the harm suffered
34.6 on a reading of the judgment of Nicholson J, there is a real possibility that persons with malicious intent could act on it to the detriment of the office of the President of the Republic of South Africa, members of the National Executive, and to me personally;
34.7 unless the errors in the judgment are rectified immediately by means of a judgment I will continue to suffer and may even suffer great harm as would the office of the President of the Republic of South Africa and members of the National Executive;
34.8 the violation of my constitutional rights by the court a quo, which itself is constrained to comply with the Constitution, and the harm and prejudice I stand to suffer requires me to promptly and expeditiously approach this court for relief;
34.9 in the light of the public importance of this matter and the possible effect on the office of the President of the Republic, it is imperative that these findings and the allegations on which they may be based be addressed in the interest of the people of the Republic of South Africa, the standing of the National Executive as an organ of State and the office of President of the Republic of South Africa;
35. In the circumstances I respectfully submit that this matter is urgent and should be dealt with on this basis by this honourable court.
36. My attorney of record in this matter will cause copies of this application to be served on the Respondents. He will also cause the lodgment of a copy with the Natal Provincial Division of the High Court for the attention of Nicholson J.
37. Accordingly, I respectfully ask for an order in terms of the Notice of Motion.
________________________________
DEPONENT
THUS SIGNED AND SWORN to before me at _______________________ on this the ______ day of SEPTEMBER 2008 by the Deponent, he having acknowledged that he knows and understands the contents of this affidavit, that he has no objection to taking the prescribed oath and considers same to be binding on his conscience.
_____________________________
COMMISSIONER OF OATHS
[1] Judgment paragraph 158
[2] Judgment paragraph 170
[3] Judgment paragraph 170
[4] Judgment paragraphs 170 - 173
[5] Judgment paragraphs 188 - 191
[6] Judgment paragraph 193 - 196
[7] Judgment paragraph 197 - 199
[8] Judgment paragraph 205
[9] Judgment paragraph 205
[10] Judgment paragraph 206
[11] Judgment paragraphs 205 - 207
[12]Judgment paragraph 210
[13] Judgment paragraph 210 - 213
[14] Judgment paragraph 214 - 215
[15] Judgment paragraph 216
[16]Judgment paragraph 220
[17] Judgment paragraph 220
