In justifying his decision to discontinue the prosecution of ANC President Jacob Zuma on fraud, corruption and racketeering charges, acting National Director of Public Prosecutions Mokotedi Mpshe cited an alleged "abuse of process" by Scorpions head Leonard McCarthy as the basis for his decision (see here). In essence, Mpshe alleged that McCarthy and former prosecutions boss Bulelani Ngcuka had conspired with regard to the timing of the laying of charges against Zuma. In Mpshe's view, this abuse of process fatally compromised the integrity of the prosecution and therefore warranted its wholesale abandonment.
In reaching this decision, Mpshe placed particular reliance on a 1991 House of Lords decision, R v Latif, in which the English Court explained the circumstances in which policy considerations relating to the integrity of the criminal justice system would justify the staying of a prosecution (see here). The statement released by Mpshe announcing and accounting for the discontinuation of the prosecution of Zuma paraphrases the reasoning of the House of Lords in Latif and endorses the Court's approach to this issue. Although it has recently emerged that this precedent was reached indirectly - through a 2002 judgment from Hong Kong - a close analysis of Latif itself reveals that Mpshe's reliance on the case as a judicial justification for discontinuing the prosecution of Zuma is misplaced and misleading.
In Latif, it had been alleged by the appellants that the conduct of various law enforcement and customs officials involved in the investigation of the transportation of a heroin consignment from Pakistan to the United Kingdom had effectively amounted to entrapment. The appellants had argued that a Pakistani informer acting for British law enforcement officials had encouraged the first appellant to commit the statutory offence of importing illegal drugs into the United Kingdom. The appellants had also alleged that a British customs official had himself contravened the statutory provision in respect of which the appellants had been charged, in that the customs official had brought the heroin consignment into the United Kingdom. The appellants contended that the conduct of the various officials in each instance amounted to an abuse of process which justified the staying of the prosecution.
Thus, the key issue in Latif was whether the conduct of the law enforcement and customs officials in question constituted an abuse of process which was sufficiently egregious as to justify the court staying the prosecution on the grounds of policy, notwithstanding the fact that the prosecution had a strong case against the appellants.
The House of Lords held that, in deciding this issue, a judge must weigh the public interest in seeing that an accused person is prosecuted with the court's obligation to protect the integrity of the criminal justice system:
"If the court always refuses to stay such proceedings, the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies. That would undermine public confidence in the criminal justice system and bring it into disrepute. On the other hand, if the court were always to stay proceedings in such cases, it would incur the reproach that it is failing to protect the public from serious crime. The weaknesses of both extreme positions leaves [sic] only one principled solution. The court has a discretion: it has to perform a balancing exercise. If the court concludes that a fair trial is not possible, it will stay the proceedings. That is not what the present case is concerned with. It is plain that a fair trial was possible and that such a trial took place. In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system. The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and required the criminal proceedings to be stayed."