NATIONAL PROSECUTING AUTHORITY'S FAILURE TO ADHERE TO SUPREME COURT OF APPEAL ORDER WORRYING

The Centre for Constitutional Rights is deeply concerned about the apparent failure of the National Prosecuting Authority (NPA) to adhere to an order by the Supreme Court of Appeal (SCA) to produce its record of decision which led to the withdrawal of criminal charges against President Jacob Zuma.

Earlier this year, the SCA upheld an appeal by the Democratic Alliance (DA) against a judgement by the North-Gauteng High Court in Democratic Alliance v The Acting National Director of Public Prosecutions. In their appeal, the DA sought an order reviewing and setting aside the decision by the NPA to discontinue the prosecution of President Zuma on charges of corruption, fraud and racketeering. The SCA, apart from ruling on the DA's legal standing in the case, most crucially held that a decision by the NPA (and then Acting National Director of Public Prosecutions) to discontinue the prosecution of President Zuma was subject to review. The SCA consequently ordered the NPA to hand over a reduced record of its decision (excluding written representations made on behalf of President Zuma) to the DA within 14 days from the date of the order, so as to enable the DA to seek a review of the NPA's decision. 

The documentation in question goes to the heart of how the NPA conducts itself, how it decides when to prosecute certain conduct, and crucially, what information it considers when making its decisions. The record of decision should be able to show rationality in the decision by the NPA, failing which such a decision will be unlawful and unconstitutional. In Democratic Alliance v President of the Republic of South Africa & Others the SCA observed that the "exercise of public power, even if it does not constitute administrative action, must comply with the Constitution" - a point repeatedly emphasised by the Constitutional Court.

In ordering the NPA to hand over its record of decision, the SCA held that the "reduced record shall consist of the documents and materials relevant to the review, including the documents before the [Acting National Director of Public Prosecutions] when making the decision and any documents informing such decision". The deadline for handing over its record of decision had lapsed on 10 April 2012. To date, the NPA has yet to produce and hand over all relevant documents - including transcriptions of the so-called "spy-tapes" that the NPA had claimed were the basis of its decision not to prosecute Zuma. In failing to hand over its record, the NPA has been all but ignoring the order by the SCA with impunity. According to media reports, the DA will now again approach the North-Gauteng High Court to seek an order to compel the NPA to adhere to the SCA ruling within five days.

Such a state of affairs is unacceptable. This is most certainly not the first time that a government department has ignored a court order, but what makes this matter much more alarming is the fact that the NPA, according to the SCA, is not just another government department, but undeniably "integral to the rule of law and to our success as a democracy". The NPA is the entrance point to what should be a functional and credible criminal justice system and a last line of defence against a potential criminal state. If the NPA can ignore the judiciary and orders made by the courts as it sees fit, where does it leave the integrity of that organisation and its perceived respect for the judicial system at large? 

In upholding the DA's appeal the SCA stated that: 

"...each of the arms of government and every citizen, institution or other recognised legal entity, are all bound by and equal before the law. Put differently, it means that none of us is above the law. It is a concept that we, as a nation, must cherish, nurture and protect. We must be intent on ensuring that it is ingrained in the national psyche. It is our best guarantee against tyranny, now and in the future."

The rationality, legality and constitutionality of the NPA's conduct - its ability to fulfil its constitutional duty without fear, favour or prejudice - are yet to be reviewed by the High Court in at least two separate matters: the Zuma-case as well as the controversial Mdluli-matter. Meanwhile, the NPA's apparent brazen disregard of an order by the SCA does not serve to soften the perception that some individuals within the NPA believe that the NPA (and they themselves) may indeed be above the law.

Statement issued by Adv Johan Kruger, Centre for Constitutional Rights, FW de Klerk Foundation, September 30 2012

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