IN THE HIGH COURT OF SOUTH AFRICA
NORTH GAUTENG HIGH COURT, PRETORIA
Case no. 19577/09
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
APPLICANT’S HEADS OF ARGUMENT
Prepared by:
SP Rosenberg SC
HJ DE Waal
D Borgström
Instructed by:
Ms. Samantha Solomons
Minde Schapiro Smith Attorneys
A. INTRODUCTION
1. This matter has its genesis in serious allegations that the Third Respondent, Mr Jacob Gedleyihlekisa Zuma (“Zuma”), received benefits in exchange for the improper use of his real or perceived political influence to affect the award of contracts for the acquisition of military equipment by the State (known as “the arms deal”).
2. After a protracted investigation, on 29 November 2007 the National Prosecuting Authority (“NPA”) was satisfied that there was a compelling case against Zuma. Senior members of the NPA, led by Adv Mokotedi Mpshe SC (“Mpshe”), who at that time held the office of the National Director of Public Prosecutions (“NDPP”) on an acting basis, resolved that fresh charges would be presented against Zuma.
3. The process of drafting an indictment proved complex. Furthermore, at the same time Zuma was involved in a struggle for the leadership of the African National Congress (“the ANC”), running against then President Thabo Mbeki (“Mbeki”). That leadership battle was to be decided at a national meeting of the ANC to be held in Polokwane from 16 to 20 December 2007 (“the Polokwane conference”). As we shall show, Mpshe decided that to avoid any appearance of political entanglement, the service of the indictment should be delayed until early 2008, after the Polokwane conference.
4. It is clear that the postponement of the service of the indictment suited Zuma, who was anxious to avoid appearing at the Polokwane conference under the shadow of criminal charges. Zuma’s leadership challenge succeeded, opening the path for him to be appointed as President of the Republic.
5. The indictment was in fact finalised and served on Zuma on 28 December 2007, after the Polokwane conference. It included charges of racketeering; corruption; money laundering; and fraud
6. Both before and after the service of the indictment Zuma and his legal representatives embarked on a strategy of litigation to avoid criminal proceedings. At every step the repeated allegation was made that Zuma’s prosecution was tarnished by political motives. At the same time Zuma’s political ascendancy continued, and he was due to be sworn in as President of the Republic on 9 May 2009.
7. In anticipation of this event, it is clear that Mpshe who still held the office of NDPP on an acting basis was placed under considerable pressure to halt the prosecution of Zuma. On 6 April 2009 Mpshe announced his decision, taken several days earlier, to discontinue the prosecution.
8. The NPA’s answering papers confirm[1] that the reasons for that decision were contained in Mpshe’s press statement of 6 April 2009.[2] It is evident from Mpshe’s statement that he remained of the view that the charges against Zuma were meritorious and serious, and that the underlying decision to prosecute Zuma was properly made. Mpshe also accepted that nothing had been presented which would undermine the possibility of a fair trial for Zuma. In particular he retained confidence in the skill, integrity and neutrality of the team that had compiled the indictment and who would prosecute the charges against Zuma.
9. Mpshe’s decision was instead based wholly on supposed “policy aspects militating against prosecution”,[3] arising from allegations of an abuse of process supposedly evidenced by secret recordings of telephone conversations involving the head of the NPA’s Directorate for Special Operations (“the DSO”), Mr Leonard McCarthy (“McCarthy”).
10. More specifically, the conduct which triggered the supposed abuse involved McCarthy manipulating the timing of the service of the indictment for political ends. The central allegation is that McCarthy overrode his own views and the advice of the prosecution team, to carry out political instructions received from Mr Bulelani Ngcuka (“Ngcuka”), a previous incumbent of the office of the NDPP, and others associated with Mbeki. The suggestion appears to be that the indictment was initially held back to suit Mbeki’s campaign at the Polokwane conference, and thereafter expedited to suit Mbeki.
11. The Democratic Alliance (“DA”) is a political party and the country’s official opposition. In this capacity it challenges Mpshe’s decision to discontinue the prosecution of Zuma, as being irrational and unlawful. The reasons given by Mpshe for his decision are based on factual assertions which he could not have believed to be true, and which could never have lead to his decision. The DA does not assert that Zuma is guilty, but only that he – like any other person – should face criminal charges when compelling evidence of wrongdoing exists. He too should be given the benefit of his day in court to challenge the allegations against him, even if he is anxious to avoid that prospect.
B. THE STRUCTURE OF THE HEADS
12. The structure of these heads of argument is as follows:
12.1 First, we set out the relevant factual background;
12.2 Second, we deal with the litigation history;
12.3 Third, we set out the basis of review, and the review grounds; and
12.4 Lastly, we deal with the remedy to be granted and the issue of costs.
13. The DA submits that the impugned decision by Mpshe constitutes “administrative action” in terms of the Promotion of Administrative Justice Act 3 of 2000. However, this determination need not detain this Court. Even if the decision is excluded from scrutiny under PAJA, it remains an exercise of public power subject to review under the principle of the rule of law, enshrined in section 1(c) of the Constitution. In either event the bases of review include the rationality and lawfulness of the decision.
14. In summary the DA submits that:
14.1 First, rationality entails a connection between the information known to Mpshe when he took his decision, and his stated reasons for his decision. Mpshe’s decision must be measured against the reasons he gave. In this regard his decision fails at a fundamental level, as all the evidence indicates that he made the decision to delay the service of the indictment himself, and McCarthy played no material role in this regard. Mpshe could thus not have rationally concluded that McCarthy manipulated the timing of the service of the indictment on Zuma (to suit Mbeki).
14.2 Second, much of the material which the NPA and Zuma have placed before this Court constitutes an ex post facto attempt to construct new and better reasons for Mpshe’s decision. It is not open for them to do so. But these new reasons similarly fail. The intention appears to be to paint a picture that the NPA was generally manipulated by senior office bearers for political ends; and specifically that the underlying decision to prosecute Zuma was led by McCarthy and tainted by his improper motives. But again, the evidence indicates that this is incorrect. The decision to prosecute Zuma was based on compelling evidence, and was a corporate decision led by Mpshe.
14.3 Third, rationality also entails a connection between Mpshe’s impugned decision, his reasons, and the purpose of his power in such cases. Even if it is accepted that McCarthy acted improperly and that everything his did was for ulterior political motives, that cannot vitiate the prosecution of Zuma as long as the evidence indicates a case for Zuma to answer.
14.4 Fourth, to the extent that section 179(5)(d) of the Constitution applies to Mpshe’s decision, he failed to comply with a number of requirements for taking a decision under that provision. Amongst these are that Mpshe failed to consult with the relevant DPP and he failed to take representations from the accused, the complainant, and other persons or parties he considered relevant to his decision.
15. On any of these bases the DA is entitled to the relief sought, setting aside Mpshe’s decision.
C. FACTUAL BACKGROUND
16. In about mid-2001 as part of the arms deal investigation investigators discovered an encrypted fax authored by a certain Mr Thétard, a representative of the Thint group of companies (“the Thint group”). This fax evidenced an agreement concluded at a meeting in March 2000 in Durban between Thint, Zuma and his business associate and advisor, Mr Shabir Shaik (“Shaik”).[4] The Constitutional Court concluded that this fax indicated an offer of payment to Zuma “in exchange for his authority and influence, to protect and promote Thint in the so-called 'arms deal'”.[5]
17. Subsequent investigations reveal that certain of the offences had commenced as early as October 1995, when payments had been made to Zuma, and debts written off with the object of influencing him to use his name and political influence for the benefit of Shaik and his business enterprises.[6]
18. In 2003 the NPA decided to prosecute Shaik, certain companies in the Nkobi group of companies (linked to Shaik), and Thint (Pty) Ltd (a locally registered company forming part of the Thint group). The investigating team recommended that Zuma should also be prosecuted but the NDPP at the time, Ngcuka, took a different view. He announced on 23 August 2003 that, notwithstanding the existence of a prima facie case against Zuma, there was not a reasonable prospect of a successful prosecution against him.[7] Ngcuka made it clear, however, that his decision would be reconsidered should further evidence come to light.[8]
19. Ngcuka’s decision not to prosecute Zuma was contended to be proof of an ulterior motive on Ngcuka’s part, namely that he was party to an alleged political conspiracy to destroy Zuma’s political career. Zuma later elected not to pursue this grievance about alleged misuse of the office of the NDPP by Ngcuka before the Hefer Commission (which was specifically tasked with investigating allegations against Ngcuka), and chose instead to take his complaint to the Public Protector.[9]
20. The proceedings against Shaik continued and he was convicted (on 2 June 2005) and sentenced to an effective 15 years imprisonment. The judgment of the Court implicated Zuma which caused the then NDPP, Mr Vusi Pikoli (“Pikoli”), to announce in June 2005 that Zuma would be prosecuted.[10]
21. Contrary to the advice of the prosecuting team, Pikoli served an indictment on Zuma before the investigation was complete. This was an error which would have ultimately led to the criminal prosecution being struck from the roll. What happened was that:
21.1 On 26 July 2005 forensic auditors from KPMG were mandated to conduct a thorough, independent investigation, including an up to date analysis of all payments from Shaik to Zuma.[11] (KPMG eventually managed to finalise the report in September 2006.)
21.2 On 18 August 2005 search and seizure operations took place, authorised by Judge President Ngoepe (of the High Court in Pretoria).[12] Zuma and his legal representatives challenged the search warrants, which disrupted the NPA’s preparation for the criminal proceedings.[13] (The NPA’s victory in the search warrant cases in November 2007 eventually cleared the way for the reinstatement of the charges.)
21.3 On 31 July 2006 the criminal proceedings came before Mr Justice Msimang in the High Court in Pietermaritzburg. The State applied for a postponement of the trial, which was dismissed. When the State was unable to proceed, the matter was then struck from the roll.[14]
21.4 In his judgment, Msimang J was critical of the State’s decision to embark upon the prosecution precipitously and in circumstances in which (so he held) the State ought to have realised that the outstanding investigation would not be concluded within a reasonable time.[15] In light of this, the NPA decided to complete all outstanding investigations and resolve the interlocutory (search warrant) appeals before a decision was taken on whether or not to recharge Zuma and the Thint companies.[16]
22. On 6 November 2006 the Supreme Court of Appeal (“the SCA”) dismissed an appeal by Shaik against his criminal conviction (as well as an appeal against a forfeiture order against his assets), confirming the finding that the relationship between Shaik and Zuma was corrupt.[17]
23. The ongoing investigation of Zuma required further applications to the High Court to issue letters of request to the governments of Mauritius and the United Kingdom, in order to facilitate the collection of documentary evidence. This in turn led to two new rounds of litigation in respect of both requests, by Zuma and the Thint companies.[18]
24. In September 2007 Mbeki, who was still the President of the ANC and the country, suspended Pikoli as NDPP on the basis of an irretrievable breakdown in the working relationship between Pikoli and the then Minister of Justice and Constitutional Development Ms Brigette Mabandla (“Mabandla”).
25. Mbeki thereafter appointed Mpshe as acting NDPP, while a protracted process was embarked on in an attempt to justify the allegations against Pikoli.[19]
26. On 11 October 2007 Zuma’s attorney, Mr Michael Hulley (“Hulley”), addressed a letter to Mpshe requesting an opportunity to make representations, as it was believed that Mpshe was reviewing the case. Mpshe replied on 12 October 2007, stating that the matter was not the subject of any review.[20]
27. On 8 November 2007 the SCA dismissed all of the interlocutory applications brought by Zuma (being the challenges to the search warrants and to the requests for international assistance).[21]
28. This cleared the way for the reinstatement of the charges. There was no dispute that the charges against Zuma should be reinstated. Indeed, the decision to do so was a formality after the NPA’s victory in the SCA in the search warrant cases. Thus on 29 November 2007 Mpshe decided together with others, in what has correctly been described as a corporate decision,[22] that fresh charges be pursued against Zuma. This decision was not made by Mpshe alone, but was guided by senior management of the NPA, including Mpshe’s deputies and the prosecuting team.
29. Matters were however complicated by two factors:
29.1 First, as a practical matter an extensive indictment still had to be finalised. Authorisation had to be obtained for the institution of charges under the Prevention of Organised Crime Act 121 of 1998 (“POCA”). Various other matters, such as the centralisation of the charges, had to be attended to.
29.2 Second, as noted above, the ANC’s Polokwane conference would take place from 16 to 20 December 2007, at which Zuma would challenge Mbeki for the leadership of the ANC.
30. On the second of these issues, the question was whether the decision to reinstate the charges should be announced before or after the Polokwane conference. This led to a difference in opinion between the prosecuting team, known as the Bumiputera team, led by Adv William Downer SC (“Downer”) and Mpshe.
31. The prosecuting team argued that the charges should be launched as soon as the indictment was ready, regardless of the Polokwane conference. This view found its way into a report compiled in terms of section 33 of the National Prosecuting Authority Act 32 of 1998 (“the NPA Act”) to Mabandla on or about 3 December 2007.[23]
32. Mpshe signed that report but it was authored by the prosecution team. Thereafter, on or about 6 December 2007, after a conversation the night before with the Mabandla, Mpshe told Downer that the announcement of Zuma’s prosecution would be held back until after the new year. Downer was concerned that the delay was manipulated by Mabandla, but Mpshe was emphatic that the decision to postpone the indictment was his alone. Mpshe offered a legitimate explanation for changing his mind, namely that he wished to avoid any suggestion that the charges were timed to influence the events at the Polokwane conference.[24]
33. As it turned out, the debate about the timing issue was academic because for practical reasons Mpshe only authorised the institution of proceedings under POCA on 14 December 2007 and the indictment was probably only finalised on 24 December 2007, well after the Polokwane conference.[25]
34. In the meantime, Zuma was elected as the President of the ANC at Polokwane, and in that capacity was poised to take over as the President of the country following the coming general election.
35. On 28 December 2007, the indictment was served on Zuma.
36. Given the history of the matter, it was to be expected that Zuma would seek to end the efforts to prosecute him:
36.1 In 2008 Zuma brought an application challenging the decision to prosecute him, based primarily on the contention that section 179(5)(d) of the Constitution required that he should have been afforded the opportunity to make representations before the Mpshe decision was taken. The challenge was sought to be supported by allegations of improper political motives. In September 2008, Mr Justice Nicholson (in the High Court in Pietermaritzburg) ruled that Mpshe’s decision was invalid.[26] However, the judgment and order were overturned on appeal by the SCA in a judgment handed down on 12 January 2009.[27] Zuma thereafter sought leave to appeal from the Constitutional Court. This was opposed by the NPA (the CC matter fell away after the charges were dropped).
36.2 Zuma’s legal representatives also indicated that he would bring an application for the permanent stay of his prosecution, which was to be launched by 18 May 2009. (A timetable for that application was also set, but it never proceeded once the charges were dropped).
36.3 Furthermore, in February 2009, Zuma’s legal representatives made a series of oral and written representations to Mpshe and his team, calling for the charges to be dropped.
37. It was the oral representations in particular which ultimately resulted in the discontinuation of the prosecution. Due to their alleged confidentiality, the representations remain undisclosed. However, it is now evident that a feature of the oral representations was the explicit threat that if the NPA persisted in its prosecution, embarrassing allegations about conduct of members of the NPA would be made public. The prosecution team correctly referred to these threats as blackmail.
38. Whatever the real nature of the representations, the record filed in the present proceedings shows that on 1 April 2009 Mpshe, who still served in an acting capacity a year and a half after he was first appointed, informed the senior management of the NPA that he had decided that the prosecution should be abandoned.[28] The decision was not disclosed to the prosecution team. The team remained of the view that the charges should be pursued.
39. At that point the NPA’s senior management recognised that a factual and legal basis for this decision would have to be presented. Time was of the essence. The national and provincial general elections were scheduled for 22 April 2009. It was clear that the ANC would retain a majority of the seats in the National Assembly and that Zuma would be the next President of the country.
40. Over the following days Mpshe’s reasons were put together. These were presented to the prosecution team on 6 April 2009, and immediately announced publicly. It is this decision and the reasons presented at that stage which lie at the heart of this application.
41. The stated reasons for Mpshe’s decision rely almost entirely on a series of intercepted telephone conversations and cell phone messages (SMSs) between McCarthy and others.
42. The recordings were first provided to Mpshe by Zuma’s legal representatives. Zuma’s team have never explained the provenance of these recordings or how they came into their possession. In his statement Mpshe indicated that the NPA had established that similar recordings had been made by the National Intelligence Agency (as part of another investigation), which were also provided to him. Probably because of their source, the recordings have come to be known in the media as the spy tapes. In these proceedings Zuma’s legal team have again (without explanation) included transcripts of telephone conversations between Downer and members of the press which could not have been lawfully intercepted.
43. The spy tapes consist mostly of conversations and messages between McCarthy and Ngcuka. It is apparent that both McCarthy and Ngcuka supported Mbeki in the leadership challenge at the ANC’s Polokwane conference. In the recordings and messages McCarthy and Ngcuka discuss, amongst other things, whether Mbeki’s prospects would be strengthened if the indictment against Zuma were to be served before, during or after the Polokwane conference. They appear to have concluded that it would be better if the indictment were to be served after the conference (as in fact happened).
44. Mpshe’s stated reasons rely on the recordings as evidence of collusion between McCarthy and Ngcuka to manipulate the timing of charging Zuma for purposes outside and extraneous to the prosecution itself.
D. LITIGATION HISTORY IN THE CURRENT APPLICATION
45. The DA anticipated that Mpshe would bow to pressure and discontinue the prosecution. By Thursday 2 April 2009, one day after the decision was made, Mpshe informed Zuma’s legal representatives that the charges would be dropped. This information was clearly passed on to Zuma’s supporters, who celebrated in the streets outside the ANC’s headquarters in Johannesburg.[29]
46. In the circumstances, the DA commenced preparatory steps to launch review proceedings before Mpshe announced his decision on 6 April 2009. This enabled the DA to launch an urgent review of the decision on 7 April 2009, the day after Mpshe’s public announcement.
47. The DA’s notice of motion called on the NPA to file the record of proceedings in respect of Mpshe’s decision, as required by Rule 53(1). At that stage the DA envisaged an expedited review, and called for the record to be filed by 24 April 2009.
48. The record was not filed as requested in the notice of motion.
49. Instead, the State Attorney responded in a letter dated 24 April 2009, stating that there were two issues which prevented the filing of the record:[30]
49.1 First, it was indicated that the conditions under which Zuma’s legal representatives made representations to the NPA prevented disclosure. It was claimed that the representations were made on condition of confidentiality and on a without prejudice basis. The NPA suggested that this concern could be overcome if Zuma was prepared to waive the conditions, alternatively if Zuma was prepared to permit the filing of the record subject to suitable written confidentiality undertakings (a number of further proposals were made in this regard).[31]
49.2 Second, it was stated that the NPA “intends to raise the Applicant’s locus standi and the reviewability of the decision as preliminary matters to be dealt with on an interlocutory basis together with the request to the Court to sanction any confidentiality arrangements that the parties agree upon or to give directions in the event that the parties fail to reach agreement …”.[32]
50. Thereafter, in a letter of 29 April 2009, Zuma’s attorneys communicated his refusal to waive the condition of confidentiality.[33]
51. In an attempt to expedite the matter, the DA proposed in a letter dated 12 May 2009 that the record be delivered to the Registrar without Zuma’s representations[34] and any consequent memorandum or report prepared in response thereto, if the production thereof would breach any confidentiality attaching to the representations. This version of the record came to be known as the reduced record.
52. The DA limited its demand to the reduced record in an attempt to ensure that the review proceedings could progress. The DA at no stage conceded that the NPA was entitled to entertain representations from an accused on a confidential or without prejudice basis.
53. The DA’s attempt to speed up the review by calling for the reduced record was frustrated by strategic inaction. The NPA simply ignored the call for the reduced record. Furthermore, the interlocutory application in respect of the issues of standing and reviewability foreshadowed in the NPA’s letter of 24 April 2009 was never brought.[35]
54. In the result, the DA was forced to launch an application in terms of Rule 6(11) to compel the NPA to file the record. An interlocutory application to intervene in the main application was also brought by Mr R M M Young (“Young”) and CCII Systems (Pty) Ltd (“CCII”) and set down for hearing on the same date.[36]
55. The Rule 6(11) application was heard by Mr. Justice Ranchod. The Judge accepted the submission made on behalf of the NPA that a political party such as the DA did not have a direct and substantial interest in the decision to discontinue the Zuma prosecution. He also refused the intervention application of Young and CCII.[37]
56. The decision of Ranchod J was in part overturned on appeal by the Supreme Court of Appeal in the reported matter of DA v Acting NDPP 2012 (3) SA 486 (SCA).[38] The objection to the DA’s standing was dismissed and the decision to discontinue Zuma’s prosecution by the NDPP was held to be subject to review. The NPA was ordered to produce and lodge the reduced record within 14 days of date of the judgment. During the course of the judgment the SCA stated (at paragraph 33) as follows:
“…If the reduced record provides an incomplete picture it might well have the effect of the NDPP being at risk of not being able to justify the decision. This might be the result of Mr Zuma's decision not to waive the confidentiality of the representations made by him.”[39]
57. The judgment of the SCA was welcome to the DA which at that stage believed that it would put an end to the dilatory tactics of the respondents. The opposite turned out to be the case.[40]
58. The 14-day period for compliance imposed by the SCA expired on 10 April 2012.[41] Two days later on 12 April 2012 the State Attorney provided its view on what the reduced record entailed. It was essentially the representations made by the DA and other private persons in 2009 in an attempt to persuade Mpshe to drop the charges. The State Attorney indicated that there were in addition certain tape recordings which were being transcribed, and that it was obliged to afford Zuma’s legal team an opportunity to consider whether there was any objection to the disclosure of the transcripts. Only thereafter would the transcripts would be made available as a supplement to the record.
59. Over the next months the DA’s attorneys wrote several letters in which they called for the release of the recordings and transcripts.[42]
60. When it became apparent that no progress was being made, the DA launched a second interlocutory application on 18 September 2012 aimed at compelling the production of the recordings, transcripts and minutes of meetings, notes and memoranda in respect of the impugned decision, insofar as these did not reveal the representations. The DA also sought an order holding the Acting NDPP at the time Adv Nomgcobo Jiba (“Jiba”), in contempt of court.
61. In a judgment dated 16 August 2013 this Court (per Mr Justice Mathopo) dismissed the application for contempt, but effectively granted the balance of the relief sought by the DA.[43]
62. On 6 September 2013 Mathopo J granted leave to Zuma to appeal against his judgment and order to the SCA. The NPA did not take part in the subsequent proceedings before the SCA.[44]
63. The judgment of Mathopo J was upheld by the SCA in Zuma v Democratic Alliance and Others [2014] 4 All SA 35 (SCA) [2014] ZASCA 101 (28 August 2014) – save that the parties agreed that a retired judge, Mr Justice NV Hurt, would be the final arbiter of which aspects of the memoranda and reports were confidential.[45]
64. The minutes, memoranda and notes were delivered to Judge Hurt in two batches (the first batch evidenced the existence of further documents which had not been provided),[46] and he duly made his determination.
65. In the result, the reduced record consists of four parts:
65.1 Part A comprises the documents filed by NPA on 12 April 2012, in response to the first SCA decision. As noted, it consists of representations to the NPA before the challenged decision was taken, and responses to these submissions. This part of the record has been numbered as pages A1 to A47.[47]
65.2 Part B comprises the documents and recordings handed to the DA’s then leader Ms Helen Zille by the NPA on 4 September 2014. The documents consist in the main of a transcript of the recordings of the spy tapes, as well as some handwritten notes. This part of the record has been numbered as pages B1 to B154.[48]
65.3 Part C comprises the internal memoranda and minutes redacted by Justice Hurt, numbered as pages C1 to C188.[49]
65.4 Part D comprises the documents provided to the DA on 7 October 2014, in response to a request formulated after an analysis of Part C. This part is numbered as pages D1 to D464.[50]
E. THE BASES OF REVIEW
66. As noted above, the DA submits that Mpshe’s decision to withdraw charges against Zuma constitutes administrative action, reviewable by this Court in terms of section 33 of the Constitution and sections 6 and 8 of PAJA.
67. The definition of administrative action in PAJA excludes “a decision to institute or continue a prosecution”, but we submit that this does not apply to decisions to discontinue a prosecution taken by the NDPP reviewing his own earlier decision to prosecute.
68. In NDPP V Freedom Under Law 2014 (4) SA 298 (SCA) (“the FUL case”), the Court concluded that decisions to continue or discontinue a prosecution were of the same genus; and that the same policy considerations applied to both. We submit that that case is distinguishable in that it did not concern the NDPP overruling a subordinate in terms of section 179(5)(d), but DPPs withdrawing earlier decisions of their own.
69. But the question whether the impugned decision in this case constitutes administrative action need not detain this Court. It is evident from the FUL case at para 28-29 [51] and DA v Acting NDPP at para 28-30 that a decision to discontinue a prosecution remains an exercise of public power (even if it does not constitute administrative action).
70. Such exercise of public power is reviewable by this Court based on the principle of legality entrenched in section 1(c) of the Constitution. Under that power the bases of review include, at the very least, the rationality of the decision and its lawfulness.
F. THE FIRST RATIONALITY GROUND: NO LINK BETWEEN MPSHE’S FINDINGS AND FACTS KNOWN TO HIM
71. The NPA’s answering papers confirm[52] that the reasons for the impugned decision were contained in Mpshe’s press statement of 6 April 2009.[53] The rationality and legality of Mpshe’s decision must be measured against those reasons.
72. Mpshe’s decision was based wholly, or at least in the main, on the supposition that the spy tapes showed that McCarthy and others had conspired to manipulate the timing of the service of the indictment to suit Mbeki. His decision must accordingly be assessed based on the rational connection between this reason and the information known to him. [54]
(i) Mpshe’s decision must be based on the stated reasons
73. Both the NPA and Zuma appear to have recognised that the reasons given for Mpshe’s impugned decision are weak, and in light of the Rule 53 record will be exposed as untenable. The NPA and Zuma accordingly seek to shift attention away from Mpshe’s stated reasons.
74. The NPA’s deponent, Mr William Andrew Hofmeyr (“Hofmeyr”), moves from supposition to speculation in an attempt to construct supplementary reasons to buttress the decision of Mpshe. Similarly Zuma’s attorney seeks to suggest that the decision was based on the totality of the submissions he and Zuma’s counsel made to Mpshe – while at the same time refusing to disclose those submissions.
75. We submit that it is not open to the NPA or Zuma at this stage to remedy Mpshe’s decisions by putting up additional or new reasons in an attempt to redeem the decision.
76. In Jicama 17 (Pty) Ltd v West Coast District Municipality 2006 (1) SA 116 (C) at para 11, the Court found that new reasons which are put forward for the first time in answering papers cannot answer a review application. The Court cited with approval the following dictums in R v Westminster City Council, Ex parte Ermakov [1996] 2 All ER 302 (CA) at 315h - 316d which are equally apposite in this matter. Allowing new reasons to be presented would lead to “a sloppy approach by the decision-maker”, and would in many cases give rise to the new reasons were “in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings.”
77. In National Lotteries Board and Others v South African Education and Environment Project 2012 (4) SA 504 (SCA) the SCA referred to the English approach with approval, although it indicated that it was not strictly necessary to decide the issue in that matter. The Court did make the finding (at para 27) that “the failure to give reasons, which includes proper or adequate reasons, should ordinarily render the disputed decision reviewable.”
78. This approach is supported by the Constitutional Court’s judgment in AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, South African Social Security Agency 2014 (1) SA 604 (CC) at para 23-30, in which the Court rejected an approach that ignored irregularities based on an assumption that they made no difference to an inevitable result. The Court instead held that the correct approach was to determine if an irregularity existed and whether it amounted to a review ground, taking into account its materiality.
79. Although the cases above dealt with exercises of power which were accepted to be administrative in nature, it is submitted that the same principles apply to all exercises of public power. A decision which is made for reasons which are not rationally connected to the information before a decision-maker, or facts which are known to the decision-maker, can never survive scrutiny.
80. If new or other reasons exist which may (or may not) lead to the same conclusion, then the remedy is to remit the matter to the decision-maker. The decision-maker can then determine the weight to be attached to the new reasons. It should not be for a Court to determine, in advance of any fresh decision by the decision-maker, which considerations would or would not be sufficient to lead to the same conclusion.
81. This Court should, we submit, avoid engaging with these new reasons at all. If it does so, this will amount to the decision-maker receiving advice from this Court as to the means which can be lawfully employed to come to a pre-determined conclusion.
82. Even if new reasons can be introduced, Mpshe’s stated reason remains a substantial basis for his decision. If this reason falls, then Mpshe’s decision must fall as a whole. It is not for this Court to sift through the remnants to determine if any other subsidiary or new reasons still support the impugned decision.
83. In Patel v Witbank Town Council 1931 TPD 284 at 290, Tindall J held as follows:
“What is the effect upon the refusal of holding that, while it has not been shown that grounds 1, 2, 4 and 5 are assailable, it has been shown that ground 3 is a bad ground for a refusal? Now it seems to me, if I am correct in holding that ground 3 put forward by the council is bad, that the result is that the whole decision goes by the board; for this is not a ground of no importance, it is a ground which substantially influenced the council in its decision. . . . This ground having substantially influenced the decision of the committee, it follows that the committee allowed its decision to be influenced by a consideration which ought not to have weighed with it.”[55]
84. The critical question before this Court thus remains whether Mpshe’s decision is rationally connected to his stated rationale – being alleged political manipulation by McCarthy and others, to ensure that the indictment was physically served on Zuma at a time which suited the political ambitions of Mbeki.
(ii) The factual basis relied on by Mpshe was patently flawed
85. Mpshe could not in truth have come to the factual conclusion that McCarthy manipulated the issue of the timing of the service of the indictment for political ends. We say this for four reasons:
86. The first reason is that the record clearly shows Mpshe personally took responsibility for making the decision on the timing of the indictment. The decision was thus his own, and not that of McCarthy.
87. In this regard, we refer to the following parts of the record:
87.1 In a telephone discussion of 4 December 2007[56] Mpshe raised the possibility with Downer of delaying the announcement of the prosecution until after the ANC’s Polokwane conference. Mpshe indicated that he was waiting for the Minister’s views, and her response to a report placed before her in terms of section 33 of the NPA Act. Downer’s notes indicate that he objected and that he stated that the prosecution “must proceed when the prosecutors are ready irrespective of political considerations”. Downer also emphasised that it was important that the indictment be finalised by 7 December 2007, in order that it could be attached to the NPA’s papers in opposing an application by Zuma seeking leave to appeal to the Constitutional Court against the SCA’s judgment. Downer’s notes indicate that Mpshe responded that he had no choice as he still had to peruse the documents “before he announces/makes the final decision”.
87.2 On 6 December 2007[57] Downer again spoke to Mpshe telephonically. Mpshe indicated that he would “only make the announcement next year”. He explained that he did not wish to be “seen to be interfering with the Polokwane process”, and that he had taken account of a speech by Mbeki which “called for calm and stability prior to Polokwane”. Mpshe stated that a supplementary affidavit would be filed in the Constitutional Court proceedings once he made his announcement. Mpshe confirmed that he had consulted with Mabandla the previous evening (i.e. 5 December 2007) in fulfilment of his responsibility to her. Downer was concerned that Mpshe was submitting to Mabandla’s wishes. Mpshe was very clear that the decision on the timing was his (Mpshe’s) and no-one else’s.[58] Downer responded by indicating that in his view the decision to wait was wrong.
87.3 In a memorandum of 6 December 2007 Downer formally recorded the reasons why he disagreed with Mpshe’s decision to delay the announcement of the decision until after the Polokwane conference.[59]
87.4 Significantly, McCarthy was not involved in the discussions between Mpshe and Downer regarding the timing issue. Downer’s memorandum was however copied to McCarthy (as head of the DSO). Downer’s notes record that thereafter McCarthy called him on 7 December 2007, and that he (McCarthy) wanted it to be clear that he had not been consulted.[60]
87.5 McCarthy was on leave from 6 to 10 December 2007.[61] This is not contradicted. As a result it is evident that McCarthy played no role in the decision to postpone the announcement of the decision to prosecute Zuma.
88. Hofmeyr speculates, without any discernible basis, that McCarthy was feigning outrage and ignorance over the timing issue in his discussions with Downer.[62] Hofmeyr suggests that McCarthy was deliberately trying to distance himself from the timing issue, and that he specifically spoke to Downer because he knew that the latter kept notes. This would not only involve an unusual level of deviousness, but also require McCarthy to be clairvoyant. He would have to know that two years later the timing issue would become all important.
89. The transcripts of the spy tapes do little to change the facts known to Mpshe. Whilst the transcripts reveal that Ngcuka and McCarthy discussed the possible impact of charging Zuma before or after Polokwane, the record does not reveal significant action on the part of McCarthy to implement any instrucion from Ngcuka to delay the indictment until after Polokwane. When this issue was raised by McCarthy during a conversation with Ngcuka on 26 November 2007, Ngcuka was silent.
90. The second reason is that the NPA’s answering papers fail to show McCarthy’s alleged involvement in, and manipulation of, the decision regarding the timing of the indictment. The evidence in this regard is as follows:
90.1 McCarthy did not raise the issue of timing in any meetings after 12 November 2007, but allegedly resorted to lobbying individuals to postpone the prosecution until after the Polokwane conference.[63]
90.2 The evidence of this informal lobbying is limited and indicates that it was unsuccessful. Hofmeyr points to a note from Downer which indicates that in a meeting of 12 November 2007 McCarthy raised the possibility of withholding the indictment until after the Polokwane conference. Downer disagreed, and McCarthy conceded.[64] McCarthy did not take the matter up with any members of the prosecution team again.
90.3 At some time around 21 November 2007 McCarthy apparently informally raised the timing issue with Hofmeyr himself. This approach was also unsuccessful, and had no demonstrable impact. Hofmeyr indicates that he too disagreed with McCarthy and that their discussion became heated. In fact, by this stage Hofmeyr had picked up McCarthy’s political bias and he says that their relationship was subsequently strained.[65]
90.4 Hofmeyr states that he later learned from Mpshe that McCarthy had successfully lobbied Mpshe and persuaded him to postpone the service of the indictment.[66]
91. In the result, the evidence of actual manipulation (as opposed to telephone discussions about possible consequences) is limited to vague statements made by Mpshe to Hofmeyr, reporting on earlier dealings between Mpshe and McCarthy. This evidence is tenuous.
92. Mpshe has not himself set out the manner in which he was allegedly lobbied. Hofmeyr can only give evidence of statements which Mpshe made to him about this episode. Mpshe’s perfunctory confirmatory affidavit at best confirms that he made vague statements to Hofmeyr. He avoids confirming that the statements he made to Hofmeyr were true.
93. The most decisive evidence on the record regarding the timing of the prosecution is contained in the Downer memorandum of 6 December 2007, which places the responsibility for taking the decision squarely on Mpshe. If the version now presented by Hofmeyr is accepted, then it must also be found that Mpshe lied to Downer (on 6 December 2007).
94. Hofmeyr also does not explain:
94.1 when, where and how McCarthy approached Mpshe to change his mind on the timing of the prosecution;
94.2 why Mpshe suddenly listened to McCarthy given that the previous efforts at informal lobbying were unsuccessful;
94.3 why Mpshe felt the need to lie to Downer, given that (on Hofmeyr’s version) it was understood by all that it was McCarthy’s decision; and
94.4 why Mpshe developed the version that the decision was taken after consulting with Mabandla on the section 33 report.
95. The DA specifically called on Mpshe, in reply, to give an explanation for his inconsistency, and to explain how and when McCarthy had lobbied him. The NPA has not sought to file further evidence in this regard. It is submitted that the only inference is that no answer could be given.
96. The third reason is that it is simply not tenable to accept that Mpshe merely followed McCarthy’s lead on the timing issue. In addition to the factors above we note that:
96.1 Mpshe had no reason to keep it secret that McCarthy had called on him to postpone the service of the indictment. On the version presented in the answering papers, the reason Mpshe went along with McCarthy was that the former believed the timing issue ought to be left to the latter. If McCarthy had directed the timing issue, Mpshe would surely have informed Downer of this fact. However, Mpshe did the opposite, and was at pains to convince Downer that the decision was his alone.
96.2 In a letter of 30 March 2009 McCarthy again indicated that the decision to postpone the service of the indictment was not his but that of Mpshe.[67] At the time McCarthy must have known that this would be put before Mpshe. Nowhere is there any indication that Mpshe suggested that McCarthy was incorrect.
96.3 In addition, it is significant that Mpshe’s ultimate decision was that the service of the indictment should wait until January 2008. When McCarthy stepped in (after the Polokwane conference) to get the indictment served in late December 2007, Mpshe was allegedly annoyed.[68] If the decision was always that of McCarthy, then it is hard to understand why Mpshe would have been annoyed at all.
96.4 Furthermore, when the timing decision was made in December 2007, McCarthy’s role in the Browse Mole report was widely known. In particular, Hofmeyr notes that in November 2007 the Joint Standing Committee on Intelligence (“the JSCI”) released its report which openly criticised McCarthy for his role in the Browse Mole report and recommended that action be taken against him.[69] This angered Mpshe. Mabandla called on Mpshe to take action against McCarthy. Mpshe did not have the power to do so and in June 2008 pressed the Minister to take action against McCarthy.[70] It is simply not credible that at this very same period Mpshe would without more have left a major decision regarding the prosecution of Zuma in the hands of McCarthy or been guided by McCarthy’s assessment of the matter.
97. The fourth reason is that the timeline suggests that while the prosecuting team believed that the indictment should be served as soon as possible, [71] it turned out that for practical reasons this could not be achieved before the Polokwane conference. More particularly:
97.1 By 27 November 2007 certain of NPA senior management believed that due to a number of outstanding issues, the matter would only be ready in February 2008.[72]
97.2 The application for centralisation of the charges had to be finalised. In a telephone discussion of 4 December 2007 Mpshe advised Downer that Adv. Trish Matzke (“Matzke”) of his (Mpshe’s) office would settle the format of this application.[73] By that time the application had not been finalised.
97.3 The POCA authorisation (from Mpshe) was only obtained on 14 December 2007, and the indictment was only finalised on 24 December 2007.
98. For the above three reasons, it is submitted that the contention that McCarthy materially influenced the decision to postpone the announcement of Zuma’s prosecution until after Polokwane, in order to weaken Zuma’s chances of being elected at Polokwane, falls to be rejected as clearly untenable. Mpshe could not have believed this to be the case.
99. If this claim is rejected, the factual basis for Mpshe’s decision falls away. When stripped of this factual basis, the impugned decision must be set aside as being irrational.
100. In the NPA’s answering affidavit Hofmeyr seeks to develop a second leg to the manipulation argument namely that there was an acceleration (by a few days) in serving the indictment, post-Polokwane, at the instance of McCarthy. Mpshe’s decision had been to wait until January 2008, but McCarthy caused the indictment to be served by 28 December 2007.
101. On this aspect, we submit that:
101.1 This was not the basis on which Mpshe had concluded that there was an abuse of the process for an ulterior motive.
101.2 Almost every allegation on this aspect by Hofmeyr amounts to speculation and hearsay. There are no relevant intercepted conversations concerning the alleged manipulation. Hofmeyr largely relies on notes made by Downer,[74] who has not deposed to a confirmatory affidavit.
101.3 Both the NPA and Zuma battle to ascribe any malign political motive to this relatively insignificant degree of acceleration of the service of the indictment. The best that Hofmeyr can muster is that McCarthy was fearful that Mbeki would be recalled and that this would permanently frustrate the Zuma prosecution.[75]
101.4 Hofmeyr’s speculative attempts are as unconvincing as they are strange. The suggestion really amounts to an admission that political interference was expected from Zuma’s camp and that to avoid this interference McCarthy acted with alacrity. It is not clear why speedy action was so undesirable, particularly considering the fact that the prosecution team had always indicated that they were opposed to the postponement of the service of the indictment (and McCarthy had expressed his agreement with this sentiment).
102. For these reasons, it is submitted that the second leg of the manipulation argument also falls to be rejected as clearly untenable, and could never have formed a proper basis for Mpshe’s decision.
G. SECOND RATIONALITY ARGUMENT: NO LINK BETWEEN HOFMEYR’S ARGUMENT AND THE INFORMATION BEFORE MPSHE
103. While the NPA’s answering papers are vague on the critical aspect of the alleged manipulation of the timing of the service of the indictment on Zuma, they go to great lengths to portray various incidents of political manipulation of the NPA for political ends.
104. In most cases the relevance of these incidents is hard to discern, unless the suggestion is that the NPA is so compromised and so manipulable that it is incapable of instituting criminal proceedings against any publicly recognisable person. This would be a startling outcome.
105. In respect of the charges against Zuma, the general theme appears to be that McCarthy was completely compromised; that everything that he touched was tarnished by his improper motives; and that he touched everything. In support of this approach both the NPA and Zuma attempt to place McCarthy at the centre of the Zuma prosecution and to suggest that he was primarily responsible for the underlying decision to charge Zuma.
106. This approach should be rejected. In the NPA’s answering papers Hofmeyr himself stresses the importance of distinguishing the underlying decision to prosecute Zuma (taken on 29 November 2007), and the subsequent decision regarding the timing of the service of the indictment on Zuma. This is important as Mpshe’s decision was based on alleged manipulation of the latter decision, and not the former.
107. After recognising the difference between the two decisions, Hofmeyr attempts to blur the two. By now focussing on the underlying decision to prosecute the NPA appears to acknowledge that Mpshe’s stated reasons are indefensible, but that this does not matter as Hofmeyr has been able in the intervening years to come up with better reasons.
108. The answering papers filed by Zuma appear to treat this application as a proxy for a much vaunted application for a permanent stay of the prosecution against Zuma. This is obviously misplaced. This is so as Mpshe’s decision clearly rejected the representations made by Zuma’s legal team that the charges were unsubstantiated, and that Zuma would not be able to face a fair trial. If Zuma wishes to bring that application, he can do so. He cannot use this application as a means to indirectly seek a permanent stay.
109. But even if the NPA and Zuma can now introduce new reasons for Mpshe’s decision, the new attack also fails at a purely factual level. The attempt to place McCarthy at the centre of the underlying decision to prosecute Zuma is demonstrably incorrect, and Mpshe could never have believed this to be the case.
110. We have already referred to the review of Mpshe’s decision brought by Zuma in about mid-2008 (“the section 179 case”).
111. In the section 179 case it was a common cause fact that Mpshe was responsible for the decision to charge Zuma. Zuma’s principal argument was that Mpshe’s decision reviewed Ngcuka’s 2003 decision not to prosecute him and that Mpshe failed to comply with section 179(5)(d) of the Constitution in that Zuma was not afforded an opportunity to make representations before the decision was made.
112. The SCA on appeal found that section 179(5)(d) was not applicable. The SCA handed down its judgment on 12 January 2009.[76] Thereafter Zuma applied for leave to appeal to the Constitutional Court, but the matter did not proceed after the discontinuation of the prosecution in April 2009.
113. The papers filed in the section 179 case are of considerable importance for present purposes. For this reason, extensive references were made to these papers in the DA’s founding affidavit in the present matter. [77] The fact that Mpshe personally took the decision to reinstitute the charges against Zuma was not only common cause between the parties in the section 179 case, but also the basis of the NPA’s victory in the SCA. The SCA, per Harms DP,[78] ruled as follows (our underlining):
“[70] I therefore conclude that s 179(5)(d) does not apply to a reconsideration by the NDPP of his own earlier decisions but is limited to a review of a decision made by a DPP or some other prosecutor for whom a DPP is responsible.”
114. In a striking volte-face, in the current case Hofmeyr contends that the impugned decision, taken by Mpshe in April 2009, was a review of the 2007 decision taken by McCarthy (and not Mpshe). The reason for this change is obvious, namely to place McCarthy in the role of chief rogue and the main decision-maker.
115. Hofmeyr could hardly have been unaware of the NPA’s position in the section 179 case because he deposed to an affidavit in that matter. The purpose of Hofmeyr’s affidavit was to support the argument that section 179(5)(d) does not apply when the NDPP overrules an earlier decision of his or her own. For the most part, Hofmeyr dealt with the drafting history of section 179(5)(d).
116. Furthermore , Hofmeyr pertinently confirmed[79] the following statements made in the main affidavit of Du Plooy filed on behalf of the NPA in that matter (our underlining):
“Each of the decisions in the present matter is that of the NPA, that is, made with the concurrence of the NDPP and the Head of the DSO in each case. Consequently, it was not the case in either the Pikoli decision or the current [Mpshe] decision that the NDPP overruled the decision of his subordinate. In the circumstances the provisions of section 179(5)(d) do not apply.”[80]
117. Mr George Dick Baloyi (“Baloyi”), the then Deputy Director of Public Prosecutions employed at the Directorate of Public Prosecutions, Gauteng, deposed to an affidavit filed in opposition to Zuma’s application for leave to appeal to the Constitutional Court. In that affidavit Baloyi, who claimed personal knowledge of the facts, stated that:
“On 27 December 2007 the NPA again decided to prosecute Mr Zuma. The decision was taken by the current Acting NDPP Mr Mpshe and Mr McCarthy – “the current decision”. They implemented the decision by serving an indictment on Mr Zuma and his co-accused the following day.”[81]
118. Thus on at least two previous occasions Hofmeyr and various members of NPA confirmed, under oath that Mpshe was responsible, or at least co-responsible,[82] for taking the decision to reinstate the charges against Zuma. The section 179 case was won on this basis.
119. The NPA now wants this Court to accept a completely different version, which is that McCarthy made all the decisions related to the Zuma prosecution.[83]
120. There are a number of reasons why this Court should not allow the NPA to change its version.
121. First, no proper explanation is given by Hofmeyr and Mpshe as to why the NPA misrepresented the position in the section 179 case on something as fundamental as who took the decision in December 2007 to reinstate the charges. More particularly:
121.1 In both his affidavits in this matter,[84] Mpshe merely confirms that the contents of Hofmeyr’s affidavit are true and correct insofar as they relate to him and to the NPA Respondents. No explanation is proffered as to why Mpshe misrepresented the position in the section 179 case.
121.2 Hofmeyr himself also does not provide any explanation why he and the NPA have changed their stance. Hofmeyr merely states[85] that in previous litigation between the NPA and Zuma the question (i.e. the responsibility for the December 2007 decision) had been “blurred”. He further states[86] that “in hindsight Mpshe should have anticipated that [his confirmatory affidavit in the section 179 application] obscured what happened”. Hofmeyr also states[87] that “although this oversight is regrettable, the NPA Respondents submit that it is understandable”.
122. The issue was never “blurred” in the past and there was no “oversight which is understandable”. In the section 179 case the NPA firmly committed itself to a particular position, which was that Mpshe was responsible for the decision to reinstate the charges against Zuma. Until Hofmeyr filed his affidavit in the present matter, the NPA defended that position, and it won the section 179 court case on the basis of that position.
123. Second, there is no support for the NPA’s new version in the record. Contrary to Hofmeyr’s assertion,[88] the record does not bear out the contention that McCarthy made all the decisions related to the Zuma prosecution. Hofmeyr seeks support for the new version in a note made by Matzke in her capacity as a Deputy DPP and Acting Special Director in Mpshe’s office, regarding a discussion at a meeting held on 12 November 2007. But this note was not filed as part of the Rule 53 record. It falls to be disregarded on that basis alone. The note also does not support the new version. In the note:
123.1 Mpshe is recorded to have said that the decision is to be taken by the head of the unit as this would enable representations to be made to the NDPP.[89]
123.2 Hofmeyr is summarised as having said that “legal position NDPP not to make decision, is NDPP comfortable with the decision, decision of DSO and NDPP comfortable”.[90]
124. These statements were made in an early discussion, some four days after the SCA ruled in favour of the NPA in the search and seizure cases.[91] No decision was taken at the meeting about who would bear responsibility for reinstating the charges.[92] It is clear that the decision which was ultimately taken on 29 November 2007 was a corporate one led by Mpshe.
125. Third, the NPA’s new version is not supported by the prosecuting team. The prosecuting team compiled a memorandum, dated 17 April 2009 in which the following is stated (our underlining):
“47. Despite the fact that there are seemingly conflicting resolutions and descriptions as to whose decision it was to prosecute, or should have been, there is no doubt in the team’s mind (and this will be our evidence) that the decision was effectively and at all times that of the (Acting) NDPP. This was the case with the decisions of 2003 and 2005 and it was also how we regarded the substance of the 2007 decision, whether or not the ID signed the indictment (as he had done in 2003 and 2005), and whatever resolutions were settled regarding whose “technical” decision it was to be – either the Head: DSO or the ID of the DSO. None of this alters the position that the decision effectively was that of the Acting NDPP, as we accurately described in our court papers.”
126. The prosecuting team is best placed to tell the Court who took the decision to prosecute. The memorandum indicates that on 17 April 2009 the prosecuting team advised Hofmeyr that Mpshe was responsible for taking the decision to prosecute Zuma and the prosecuting team told Hofmeyr that their evidence would be to that effect.[93]
127. The team’s version is confirmed by paragraph 20 of the report to the Minister in terms of section 33 of the NPA,[94] where Mpshe records that the decision to prosecute Zuma had already been taken by a range of people (of whom McCarthy was but one).
128. Fourth, in an attempt to bolster his argument Hofmeyr contends that the NDPP does not have the power to take prosecutorial decisions or to overrule DPPs, other than in terms of section 179(5)(d) of the Constitution.[95] On this aspect Hofmeyr is simply wrong on the law. It is submitted that:
128.1 The NDPP’s power to initiate a prosecution is conferred by section 22(1) of the NPA Act which power is recognised, in turn, in Part 2, paragraph A2 of the Prosecution Policy Directives,[96] and the legislation listed there,[97] and Part 4, paragraph B1, which deal with a situation where the “National Director directs the institution of a prosecution in the area of jurisdiction of any DPP”.
128.2 Both the SCA and the CC have accepted that the NDPP may take a decision to institute a prosecution. See, in this regard:
128.2.1 DA v President of the RSA 2013 (1) SA 248 (CC) at para 13(e): “The National Director has the power to institute criminal proceedings on behalf of the state”.
128.2.2 NDPP v Zuma 2009 (4) BCLR 393 (SCA) at para 64: “Section 79(2) is the empowering provision. It empowers the NPA to institute criminal proceedings, and to carry out ‘any necessary functions incidental to instituting criminal proceedings’. The power to make prosecutorial decisions and to review them flows from this. If it were necessary specially to empower any member of the NPA to make such decisions and to revisit them, one would have expected the Constitution to have said so”.
128.2.3 NDPP v Zuma 2009 (4) BCLR 393 (SCA) at para 66: “ . . . it is fair to assume that the drafters of the Constitution took it for granted that the NDPP would, as would Attorneys-General in common-law countries who are also political appointees, act independently and not take political considerations into account in making prosecutorial decisions. I have dealt earlier with this aspect. Second, if the object was to prevent the NDPP from taking decisions without the input of DPPs in order to prevent him from taking politically motivated decisions, the provision would not have limited the consultation and representation requirement to cases of review, but would have extended it to all his prosecutorial decisions.”
129. In any event, Hofmeyr’s legal exposition is irrelevant as Mpshe as a matter of fact took the decision to reinstate the charges against Zuma and the timing thereof.
130. For these four reasons it is submitted that the NPA’s new version should not be accepted. The present matter is to be decided on the same basis as the section 179 case namely that Mpshe bore overall responsibility for reinstating the charges, and not McCarthy.
H. THIRD RATIONALITY ARGUMENT: NO CONNECTION BETWEEN MPSHE’S DECISION AND HIS POWERS
131. We now turn to deal with the rationality of Mpshe’s decision on the premise that the Court finds that McCarthy did influence the timing of the timing of the service of the indictment for an ulterior objective.
132. The question which then arises is whether the discontinuation of the prosecution was rationally related to the purpose of Mpshe’s powers and, in particular, the extent to which the discovery of an improper motive or ulterior objective can play a role in a decision to stop a prosecution.
133. The legal basis on which Mpshe relied in his statement is the so-called abuse of process doctrine. Mpshe’s reliance on this doctrine was fundamental. The wording he adopted in his statement bears a striking resemblance (without any attribution) to that adopted by Seagroatt J in the High Court of Hong Kong in HKSAR v Lee Ming Tee,[98] which was overturned on appeal.[99]
134. The principles discussed in that case related to a court application for stay of proceedings.[100] The Court may take such abuse in to account, in the exercise of its discretion, in deciding whether to grant a permanent stay of prosecution. The doctrine does not apply to an extra-judicial exercise of public power whether or not to withdraw charges against an accused.
135. The manner in which the prosecuting authority must approach an allegation of abuse was deal with by the SCA in NDPP v Zuma 2009 (4) BCLR 393 (SCA), where the Court held as follows (our underlining):
“[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. The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal. The same applies to prosecutions …”.
136. The Court continued that this did “not, however, mean that the prosecution may use its powers for ‘ulterior purposes’”. But an ulterior motive which vitiated a prosecution is one in which action is taken not for the purposes of bringing a prosecution, but for another purpose not authorised by the statute, such as harassment. The Court stated that this is what ulterior purpose in this context means and that this was not the case advanced by Zuma. “In the absence of evidence that the prosecution of Mr Zuma was not intended to obtain a conviction the reliance on this line of authority is misplaced as was the focus on motive.”
137. This decision of the SCA was handed down some 3 months before the impugned decision. The NPA was a party to the matter. It is accordingly inexplicable why Mpshe failed to ask himself the relevant question, namely whether the alleged abuse by McCarthy demonstrated that reasonable and probable grounds for prosecuting Zuma were absent, and whether the over-all objective remained to obtain a conviction on these grounds.[101]
138. Not only did Mpshe disregard the test as enunciated in the section 179 case, but he also failed to follow the advice he obtained at the time from Advocates W Trengove SC (“Trengove”) and A Breitenbach SC (“Breitenbach”). The prosecuting team repeatedly referred Mpshe to the advice of Trengove and Breitenbach in their various memoranda (with which the team agreed). Trengove advised that Mpshe should pose two questions:
138.1 Could Mpshe say that his decision to prosecute in 2007 was not improperly influenced by McCarthy’s motives?
138.2 Could Mpshe be satisfied, “with ex post facto knowledge of Adv McCarthy’s shenanigans”, that the decision was on the merits the correct one?
139. Mpshe was advised that if his answer to either or both of these questions was affirmative, the prosecution ought to be continued. The advice of Trengove and Breitenbach was first recorded in a memorandum dated 20 March 2009 from the prosecution team to Mpshe, [102] before he took the impugned decision. In that memorandum Trengove is said to have advised that the "[t]he proper forum for evaluating the allegations and their relevance to fair trial was the court, as envisaged in the permanent stay arrangements that we had already settled with the defence and the Judge President.”
140. If Mpshe had followed this advice and the approach indicated by the SCA, he could not possibly have concluded that the prosecution should be discontinued. This is so for a number of reasons.
141. First, it has never been alleged, nor could it be, that reasonable and probable grounds for prosecuting were absent, i.e. that the decision to prosecute was wrong on merits. In this regard we point out that:
141.1 Mpshe explicitly indicated in his statement that he rejected Zuma’s submissions on a wide range of issues, including the substantive merits of the charges, the possibility of a fair trial, and the practical implications and considerations of continuing the prosecution.
141.2 Mpshe stated that he “could find nothing” with regard to any of these aspects that would “militate against a continuation of the prosecution”.[103]
141.3 It is thus clear that Mpshe’s decision was not based on any abuse in respect of the underlying decision taken in late November 2007 to prosecute Zuma. On the contrary, it is clear that the corporate decision to prosecute was uncontentious and unavoidable after the prosecution of Shaik.
141.4 The supposed interference in the timing of the service of the indictment could never be a basis for discontinuing the prosecution. This is particularly so because these actions caused Zuma no prejudice. The answering papers of Zuma make it plain that he does not have any particular appetite for his day in court.[104] He also did not want to enter the Polokwane conference with a prosecution hanging over him,[105] and he disputes that there could have been any reason to indict him before the conference. On the contrary, Zuma’s attorney accepts that the sensible decision was to wait until after the Polokwane conference to serve the indictment.[106] The decision to withhold the indictment thus suited Zuma. Against these admissions, there can be no suggestion that Zuma has suffered anything which justifies him escaping ever having to answer the allegations against him.
142. In the circumstances, Mpshe’s decision was irrational. It was entirely based on supposed political interference in the issue of the service of the timing of the indictment, but clearly he ought to have known such interference was not in itself a sufficient reason for the discontinuation of a prosecution. Mpshe’s failure to have asked himself the correct question renders the final decision irrational.
143. Second, to the extent that the NPA and Zuma can now put up new reasons to bolster Mpshe’s decision, they only expose the procedural irrationality in this case. In DA v President of the RSA 2013 (1) SA 248 (CC), the Constitutional Court held as follows:
“[36] The conclusion that the process must also be rational in that it must be rationally related to the achievement of the purpose for which the power is conferred, is inescapable and an inevitable consequence of the understanding that rationality review is an evaluation of the relationship between means and ends. The means for achieving the purpose for which the power was conferred must include everything that is done to achieve the purpose. Not only the decision employed to achieve the purpose, but also everything done in the process of taking that decision, constitutes means towards the attainment of the purpose for which the power was conferred.”
144. If the recordings of intercepted telephone conversations and other information received from Zuma’s legal representatives are to be interpreted as prima facie evidence of a wide ranging political conspiracy, then the supposed conspirators should have been investigated – including Mbeki;[107] the then Minister of Intelligence Mr Ronnie Kasrils (“Kasrils); Ngcuka; McCarthy, and others.[108]
145. There was no effort to corroborate information with anyone other than Ngcuka and McCarthy,[109] and those attempts were perfunctory.
146. Three aspects are also notable about the approaches to McCarthy and Ngcuka:
146.1 First, for reasons which are still not explained, Mpshe and those closest to him were impatient. Both Ngcuka and McCarthy took the understandable position that they wanted to hear the recordings and to have a reasonable opportunity to make submissions.[110] This request was not properly considered [111] and the decision was taken the day after, on 1 April 2009.
146.2 Second, it appears that the only questions put to McCarthy related to the recordings. He was not asked to explain his role in Ngcuka’s decision (as then NDPP) to hold back on the prosecution of Zuma or regarding press leaks, or any new allegations arising from the Browse Mole report.
146.3 Third, the questions were sent to McCarthy after Mphse had already announced his decision to drop the charges. At the meeting of 1 April 2009 Hofmeyr suggested that McCarthy must be approached with a set of questions.[112] The list of questions was sent to McCarthy on the following day (2 April 2009).[113] Curiously it seems that this letter (of 2 April) was taken into account by Mpshe when he took his decision the day before.[114]
147. Furthermore, the prosecuting team delivered their final response to Zuma’s written and oral representations only on 2 and 3 April 2009,[115] after Mpshe announced his decision. It is thus not credible that Mpshe was seriously concerned with other issues, save for the alleged interference in the service of the indictment.
148. In the circumstances it is submitted that Mpshe’s decision cannot be sustained on any rational basis.
I. LAWFULNESS: SECTION 179 OF THE CONSTITUTION
(i) The requirements of section 179(5)(d) were not met
149. If the NDPP overrules and thereby reviews a decision of a DPP in the prosecuting authority, the NDPP attracts the obligations of prior consultation and inviting representations set out in section 179(5)(d) of the Constitution.
150. In the NPA’s affidavit, Hofmeyr states the following:
150.1 Mpshe acted in accordance with section 179(5)(d) and section 22(2)(c) of the NPA Act.[116]
150.2 Mpshe was required to exercise the power after consulting with the relevant investigating director or DPP and after taking representations from the accused or any other interested party.[117]
150.3 The requirements are only applicable when the NDPP contemplates changing the DPP’s decision.
150.4 The relevant DPP responsible for Zuma’s prosecution was not Ms Shamila Batohi (“Batohi”), the KZN regional DPP. She was not responsible for the Zuma prosecution.[118]
150.5 The relevant DPP in the context of the Zuma prosecution was the Head of the DSO or the Investigating Director responsible for the prosecution. Mpshe consulted with both of them and sought their input before he made a final decision.[119]
150.6 Before Mpshe took the impugned decision, he considered representations from Zuma.[120]
150.7 Before taking the impugned decision, Mpshe also consulted with his deputies.[121]
150.8 Mpshe also asked for representations from the prosecuting team, despite the fact that he was not required to do so.[122] Mpshe did more than he was required to do.[123]
151. Hofmeyr’s description of the legal requirements is incorrect. Section 179(5)(d) of the Constitution provides as follows:
“(5) The National Director of Public Prosecutions-
(d) may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:
(i) The accused person.
(ii) The complainant.
iii) Any other person or party whom the National Director considers to be relevant.”
152. In terms of this section, the NDPP’s power to review is constrained by the following requirements:
152.1 He must consult with the relevant DPP before exercising the power to review a decision to prosecute or not to prosecute; and
152.2 He must take representations within a period specified by him from (i) the accused person; (ii) the complainant; (iii) and any other person or party whom he considers to be relevant.
153. In his description of the requirements, Hofmeyr makes the following four errors:
153.1 First, consultation is not required with the relevant investigating director or DPP, but only with the relevant DPP. If read with section 179(3), the relevant DPP referred to in section 179(5)(d), is the DPP with jurisdiction in the area where the prosecution is to take place. We deal with this aspect in greater detail below.
153.2 Second, there is a single consultation requirement and, in addition, a requirement to seek representations from three categories of persons. The NDPP is not allowed to do more than he is required to do, i.e. he is not allowed to consult with persons not mentioned in section 179(5)(d), such as his deputies, nor can he entertain representations from categories of persons not mentioned in section 179(5)(d), such as, for instance, members of the public.
153.3 Third, the NDPP is required to seek representations from each of the three categories listed in section 179(5)(d). He cannot choose between taking representations from the accused and any other interested person, as suggested by Hofmeyr.[124]
153.4 Fourth, the third category of person from whom the NDPP is required to take representations is any other person or party whom the NDPP he considers to be relevant and not any other interested person, as suggested by Hofmeyr.
154. We now turn to deal with the question of whether the requirements were fulfilled by Mpshe before he took the impugned decision.
(ii) No consultation with the relevant DPP
155. Hofmeyr claims that the relevant DPP in the context of the Zuma prosecution was:
155.1 Mr Sibongile Mzinyathi (“Mzinyathi”), DPP for North Gauteng, but at the time of Mpshe’s decision, acting DNDPP and head of the DSO in the place of McCarthy;[125] or
155.2 Mr Thanda Mngwengwe (“Mngwengwe”), the Investigating Director in the DSO responsible for the prosecution.[126]
156. Hofmeyr is incorrect. Mzinyathi could not have been the relevant DPP because at the time when Mpshe took his decision, he was an acting DNDPP and head of the DSO. [127] In terms of section 7(3)(a) of the NPA Act (before its repeal by Act 56 of 2008), the head of the DSO had to be a DNDPP. Section 179(5)(d) makes no provision for consultation with a DNDPP. Mpshe was required to consult with the relevant DPP.
157. Mngwengwe could not have been the relevant DPP and he was in any event not properly consulted. We make this submission for a number of reasons.
157.1 First, the relevant DPP for purposes of section 179(5)(d) is always the DPP responsible for the prosecution in a specific geographical jurisdiction. This DPP is called the regional DPP. Section 179(5)(d) must be read with section 179(3), which provides that “National legislation must ensure that the Directors of Public Prosecutions (b) are responsible for prosecutions in specific jurisdictions, subject to subsection (5)”. Accordingly, when subsection (5) refers to the relevant DPP, it is the regional DPP.[128] Thus even though Mgwengwe was a DPP by virtue of this status as an Investigating Director appointed to the DSO,[129] he was not the relevant DPP. It must be borne in mind that the Investigating Director has to consult the regional DPP when exercising any of his powers.[130] It accordingly makes sense for the NDPP to consult with the regional DPP before overruling a decision of the Investigating Director. The relevant DPP was the KZN DPP, Batohi. It is common cause that she was not consulted.[131]
157.2 Second, even though Mngwengwe was formally responsible for managing the Zuma investigation, in practice his role was limited to signing indictments.[132] Hofmeyr claims that McCarthy made all the decisions relating to the Zuma prosecution.[133] If Hofmeyr is to be believed and if Mngwengwe’s role was a purely formal one, then he could not have been the relevant DPP.
157.3 Third, on the evidence before the Court, there is no indication that Mpshe properly consulted with Mngwengwe in the sense required.[134] If Mngwengwe had to be consulted, the least that Mpshe should have done was to present him with the recordings or the transcripts so that he could form his own opinion and present his views to Mpshe.[135] As stated in the DA’s supplementary founding affidavit, Mngwengwe was simply informed of Mpshe’s decision on 1 April and did not independently apply his mind, nor was he placed in a position where he could present his views in respect of the issues to be decided.[136]
158. In the result, the NPA fails to clear the first requirement set in terms of section 179(5)(d), which is that Mpshe did not consult the relevant DPP before taking the decision.
(iii) No representations from the accused
159. Hofmeyr contends that Mpshe decided to discontinue the Zuma prosecution after considering representations from Zuma.[137]
160. This may correct, save that the representations made by Zuma were not made in terms of the section 179(5)(d) process.
161. This is so because Hulley deposed to an affidavit in the present matter in which he categorically denies that the written and oral representations were made in terms of a section 179(5)(d) process. This affidavit, dated 14 August 2009, was filed in opposition to the DA’s application to compel the NPA to file the record of the impugned decision. In the affidavit Hulley explained in detail over 13 pages why the written and oral representations submitted to the NPA by Zuma in February 2009:
161.1 were in fact not made in terms of a section 179(5)(d) process;
161.2 were not intended by Zuma to be presented in terms of such a 179(5)(d) process;
161.3 were not considered by the NPA in terms of such a section 179(5)(d) process; and
161.4 were made to the NPA pursuant to the latter’s practice of receiving representations from accused persons, and not pursuant to the specific and special process recognised by section 179(5)(d).[138]
162. In fact, in his affidavit Hulley accuses the DA of not taking the time to peruse the papers filed in the section 179 court case. Had the DA done so, Hulley states, it would have realised “the obvious fact that the Representation Process was not an exercise in terms of section 179(5)(d)”.[139]
163. In support of the above proposition, Hulley quotes a number of paragraphs from his supplementary affidavit[140] filed on behalf of Zuma in the section 179 case in the Constitutional Court proceedings. In that affidavit, Hulley quoted the introduction to the written representations submitted in 2009 (despite their confidential nature) in which the following is apparently stated in bold and underlined:
“These representations are presented without abandoning any contention in favour of the supplicant which is justiciable in a court of law (and they are premised on a different basis than the section 179(5)(d) representations and discreet from that application.)”
164. In the circumstances, it is clear that the representations from Zuma were not submitted in terms of section 179(5)(d), nor could they have been considered as such.
165. The NPA thus failed to meet the second requirement for taking a decision under section 179(5)(d): Mpshe failed to obtain representations from the accused.
(iv) No representations from the complainant
166. There is no evidence on the record that Mpshe ever applied his mind to the question of who the complainant(s) in the Zuma prosecution were.
167. The only references a complainant in the record are the following:
167.1 In an internal memorandum in response to Zuma’s written representations, dated 3 March 2009, Downer and the prosecution team state that Patricia de Lille (“De Lille”) and Richard Young (“Young”) are the complainants and that the “general public RY, John Lennon, David Wilson and others (possibly even Thint) are victims”.[141]
167.2 In the intervention application, Young and CCII claimed that they were the complainants in the matter.[142]
168. Young and CCII may have been eliminated as possible complainants in the Rule 6(11) application by the SCA’s decision in DA v Acting NDPP 2012 (3) SA 486 (SCA), paragraph 46, but that still leaves De Lille. There is no evidence on the record that any effort was made to contact De Lille, or for that matter any other person or entity considered to be the complainant in the matter.
169. Mpshe accordingly did not request representations from the complainant, which means that the NPA also fails to clear the third hurdle for taking a decision under section 179(5)(d).
(v) No representations from other person or party considered to be relevant
170. There is no evidence that Mpshe ever applied his mind to the question of whether there were other persons or parties relevant to his decision”. [143]
171. There is no evidence, for instance, that Mpshe tried to ascertain who the victims were or that he made any attempt to obtain representations from them.
172. In our view, had Mpshe properly applied his mind, as he was required to do, he would concluded that at least the following persons or parties are relevant to his decision:
172.1 The prosecuting team: The actual investigation and day-to-day management of the Zuma prosecution was left to the prosecuting team led by Downer,[144] even though the team formally reported to Mngwengwe. [145] The prosecuting team would have been able to assess whether any evidence collected against Zuma was tainted by any allegation of wrongdoing levelled at McCarthy. The team was clearly a relevant party, but was not regarded as such. Hofmeyr states that Mpshe was not under a duty to consult with the team, and that they were accordingly not regarded as relevant.[146] If Mpshe did consider the prosecuting team to be relevant, then he was under a duty to put them to terms and to submit their representations within a specified period. Mpshe never did this, which resulted in the final memoranda from the prosecuting team only reaching him in the days after he made his decision. [147] In any event, the prosecuting team were never granted access to the recordings or the transcripts, which meant that they were not placed in a position to make representations.
172.2 The political parties represented in Parliament and the KZN legislature: The charges against Zuma include allegations that he failed properly to declare the proceeds of bribes to the Secretary of Parliament, during the period in which he was an MEC in KwaZulu-Natal and thereafter Deputy President of South Africa. Political parties have a particular interest in the protection of the provincial legislatures and Parliament as an institution and the enforcement of their rules, which required Zuma to report all sources of income.[148] The political parties represented in the KZN legislature and Parliament were not given the opportunity to make representations. The DA is the only party which made representations. But the representations of the DA, which form part of the record,[149] were not solicited or considered in terms of section 179(5)(d).[150] The NPA stated that the DA was not in a position different to that of any member of the public and that the fact that the DA “made representations does not change the position”.[151]
173. Given that Mpshe never applied his mind to whether there were other persons or parties relevant to his decision and given that he in fact did not invite representations from parties or persons who were relevant to the decision, the impugned decision fails to meet the fourth requirement set in section 179(5)(d).
(vi) Mpshe consulted with persons and took representations from persons other than those listed in section 179(5)(d)
174. An outsider should not be permitted to participate in a discussion about decision because he could influence the decision, especially if he has a forceful or domineering character. See Crouwcamp v Civic Independent and Others (416/2013) [2014] ZASCA 98 (31 July 2014) para 18.
175. Hofmeyr states that Mpshe consulted with his deputies.[152] This was unlawful as he was supposed to have taken his decision after consulting with the relevant DPP and not his deputies. The unlawful consultation with Hofmeyr himself is particularly problematic because:
175.1 Hofmeyr was not a mere passive sounding board but investigated Zuma’s allegations, either alone or together with Mzinyathi,[153] and he effectively made the case for withdrawing the prosecution against Zuma.
175.2 Hofmeyr was not objective. From the conversation between McCarthy and Davids on 16 December 2007 it appears that Hofmeyr was unconvinced that the prosecution of Zuma should have been reinstituted in the first place. Hofmeyr was regarded to be “actively a Zuma-man”.[154] Davids reported that Hofmeyr had suggested at an executive meeting that they should appoint someone who was favourable to Zuma’s side.[155] Hofmeyr was so confident that Mbeki would lose the election that he offered McCarthy a bet with odds of 20-to-1 to this effect. [156] McCarthy shared the view that Hofmeyr was overly critical of Mbeki, and spoke of how Zuma was poised to take over.[157] McCarthy told Davids that Hofmeyr appeared to back Zuma over Mbeki. These aspects of the conversation were highlighted by the DA in its supplementary founding affidavit.[158] Hofmeyr does not deal with them at all in his answering affidavit.
175.3 Contrary to the requirement that NPA officials should conduct themselves impartially, Hofmeyr remained active in a party political manner after he joined the NPA. Hofmeyr states that he remained “committed to and supported the ANC” as Head of the AFU and later the SIU.[159] This is wholly inappropriate.
176. Mpshe also took representations from a range of other parties and persons, i.e. the prosecuting team, the DA and all the other persons whose representations had been filed as part of the record, i.e. Lewis, COPE Youth, Advocates of Democracy and Van Straaten.[160] Given that these persons and parties were not considered to be relevant persons and parties, it was unlawful to take representations from them.
(vii) Section 179(5)(d) representations from an accused cannot be made on a confidential basis
177. The NPA and Zuma allege that the written and oral representations were made on a confidential basis and without prejudice.[161]
178. Section 179(5)(d) representations cannot be made, or entertained, on a confidential and without prejudice basis. The section requires the NDPP to obtain representations from persons outside the NPA, such as the complainant and other persons or parties considered to be relevant. Meaningful representations cannot be obtained from such persons if the accused’s representations cannot be revealed to them.[162] The DA repeatedly called on Mpshe to provide it with Zuma’s representations but the requests for access were refused.[163] Others also called for the representations. Their requests were not even dealt with.[164]
179. The decision to accept and entertain section 179(5)(d) representations on a confidential and without prejudice basis is a further fatal irregularity.
(viii) Representations should first be considered by the Regional DPP
180. In its founding affidavit the DA contended that Mpshe was not authorised to make the impugned decision and that the matter should first have been considered by the regional DPP.[165]
181. The correctness of this contention is confirmed by the Prosecution Policy Directives (Part 6A, para 5-6) section 179(5)(d) which requires, “as a matter of law and policy”, that recourse to the DPP be exhausted before representators approach the NDPP. The DPP must compile a report, which must be signed by him or her in person, and communicate his or her decision to the NDPP by way of such report. Only then may the NDPP consider the matter in terms of section 179(5)(d).
182. In terms of section 21(1)(b) of the NPA Act, the Prosecution Policy Directives must be observed in the prosecution process.
183. The reason why the DPP must be approached first is that the review envisaged by section 179(5)(d) is “in the ordinary course of events done on the existing record and the facts that were before the person whose decision is being reviewed”.[166] To the extent that new considerations came to light (as was alleged in Zuma’s representations) the original DPP responsible for the prosecution should be confronted first with the new evidence and be given an opportunity to reverse his or her decision. If the DPP refuses, the NDPP may be approached under section 179(5)(d).
184. In the present matter, there is no evidence on the record that the regional DPP was approached first. This constitutes a further fatal irregularity.
J. CONCLUSION: RELIEF SOUGHT
185. The relief sought in the notice of motion is two-fold:
185.1 first, reviewing and setting aside the impugned decision; and
185.2 second, declaring that the impugned decision is inconsistent with the Constitution and invalid.
186. The DA persists with the application for relief in this form. If granted, then costs should follow the result, such costs to include the costs of three counsel.
187. The effect of granting the relief would be that the prosecution of Zuma would be reinstated. Zuma would then have the choice of proceeding to trial or to continue with the permanent stay application that he launched on 4 February 2009.[167]
S P ROSENBERG SC
H J DE WAAL
D BORGSTRÖM
Applicant’s Counsel
Chambers, Cape Town
2 June 2015
Footnotes:
[1] Record at p. 173, Hofmeyr’s AA at para 12. As we explain below, in some parts of his affidavit, Hofmeyr attempts to expand the reasons for the impugned decision to that which are contained in paras 12 – 51 of his affidavit.
[2] Record at p. 120, annexure “JS10”.
[3] Rule 53 Record at B142
[4] Rule 53 Record D239, Du Plooy Affidavit para 24
[5] S v Shaik 2008 (2) SA 208 (CC) at para 5
[6] Rule 53 Record D239, Du Plooy Affidavit para 24
[7] Rule 53 Record D241, Du Plooy Affidavit para 30.2
[8] Rule 53 Record D241, Du Plooy Affidavit para 30.2
[9] Record at 713, Hefer Commission Report at para 44
[10] Rule 53 Record D254, Du Plooy Affidavit paras 41 – 44
[11] Rule 53 Record D287, Du Plooy Affidavit para 63
[12] Rule 53 Record D290, Du Plooy Affidavit para 66. The legality of these search warrants were challenged in the High Court in two separate cases which ultimately resulted in the judgment of the Supreme Court of Appeal in Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions 2009 (1) SA 1 (CC).
[13] Rule 53 Record D293, Du Plooy Affidavit para 73
[14] Rule 53 Record D295, Du Plooy Affidavit para 76
[15] Rule 53 Record D296, Du Plooy Affidavit para 81
[16] Rule 53 Record D296, Du Plooy Affidavit para 81
[17] S v Shaik and Others [2007] 2 All SA 9 (SCA) (6 November 2006).
[18] Rule 53 Record D298, Du Plooy Affidavit para 84.
[19] Rule 53 Record D300, Du Plooy Affidavit para 89
[20] Rule 53 Record D301, Du Plooy Affidavit para 90
[21] National Director of Public Prosecutions and Others v Zuma and Another [2008] 1 All SA 197 (SCA); 2008 (1) SACR 298 (SCA) (8 November 2007); Thint (Pty) Ltd v National Director of Public prosecutions and Others [2007] SCA 138 (RSA); [2008] 1 All SA 229 (SCA) (8 November 2007).
[22] Record C48, DSO KZN memorandum dated 3 April 2009 para 13
[23] The Report appears at Rule 53 Record D364 – D370
[24] The prosecuting team described what happened in their Memo dated 6 December 2007, which appears at Rule 53 Record D209 – D212
[25] Rule 53 Record at D59 Downer notes
[26] Zuma v National Director of Public Prosecutions [2009] 1 All SA 54 (N).
[27] NDPP v Zuma 2009 (2) SA 277 (SCA) (per Harms DP).
[28] Rule 53 Record at B75, Mzinyathi Notes
[29] Record at p. 36, Selfe FA at para 88
[30] Record at p. 15, Selfe FA at para 36
[31] Record at p. 15, Selfe FA at para 36.1
[32] Record at p. 15, Selfe FA at para 36.2
[33] Record at p. 16, Selfe FA at para 37
[34] Record at p. 16, Selfe FA at para 39
[35] Record at p. 16, Selfe FA at para 40
[36] Record at p. 17, Selfe FA at para 41
[37] Record at p. 18, Selfe FA at para 44
[38] Record at p. 18, Selfe FA at para 45
[39] Record at p. 19, Selfe FA at para 47
[40] Record at p. 19, Selfe FA at para 48
[41] Record at p. 19, Selfe FA at para 49
[42] Record at p. 20, Selfe FA at para 53
[43] Record at p. 22, Selfe FA at para 56
[44] Record at p. 22, Selfe FA at para 57
[45] Record at p. 22, Selfe FA at para 58
[46] Record at p. 22, Selfe FA at para 59
[47] Record at p. 23, Selfe FA at para 60.1
[48] Record at p. 23, Selfe FA at para 60.2
[49] Record at p. 23, Selfe FA at para 60.3
[50] Record at p. 23, Selfe FA at para 60.4
[51] The Court stated in that case as follows (emphasis added):
“[29] As demonstrated by the numerous cases since decided on the basis of the legality principle, the principle acts as a safety net to give the court some degree of control over action that does not qualify as administrative under PAJA, but nonetheless involves the exercise of public power. Currently it provides a more limited basis of review than PAJA. Why I say 'currently' is because it is accepted that '(l)egality is an evolving concept in our jurisprudence, whose full creative potential will be developed in a context-driven and incremental manner' (see Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC) (2006 (1) BCLR 1; [2005] ZACC 14) para 614; Cora Hoexter op cit at 124 and the cases there cited). But for present purposes it can be accepted with confidence that it includes review on grounds of irrationality and on the basis that the decision-maker did not act in accordance with the empowering statute (see Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others 2012 (3) SA 486 (SCA) paras 28 – 30).”
[52] Record at p. 173, Hofmeyr’s AA at para 12. As we explain below, in some parts of his affidavit, Hofmeyr attempts to expand the reasons for the impugned decision beyond those contained in paras 12 – 51 of his affidavit.
[53] Record at p. 120, annexure “JS10”.
[54] See, in this regard, DA v President of the RSA 2013 (1) SA 248 (CC) at para 39:
“If in the circumstances of a case, there is a failure to take into account relevant material that failure would constitute part of the means to achieve the purpose for which the power was conferred. And if that failure had an impact on the rationality of the entire process, then the final decision may be rendered irrational and invalid by the irrationality of the process as a whole. There is therefore a three-stage enquiry to be made when a court is faced with an executive decision where certain factors were ignored. The first is whether the factors ignored are relevant; the second requires us to consider whether the failure to consider the material concerned (the means) is rationally related to the purpose for which the power was conferred; and the third, which arises only if the answer to the second stage of the enquiry is negative, is whether ignoring relevant facts is of a kind that colours the entire process with irrationality and thus renders the final decision irrational.”
[55] This was followed in Rustenberg Platinum Mines Ltd (Rustenberg Section) v Commission for Conciliation, Mediation and Arbitration 2007 (1) SA 576 (SCA) at para 34, per Cameron JA (as he then was). The SCA also noted that courts could not “pick and choose” reasons to support the decision. (The order was overturned on appeal for other reasons in Sidumo v Rustenberg Platinum Mines Ltd 2008 (2) SA 24 (CC), but the principle in Patel was not interfered with).
[56] Record at p 35, Selfe SFA at para 86; Rule 53 record at D46, Downer notes
[57] Record at p 36, Selfe SFA at para 88; Rule 53 record at D48, Downer notes
[58] This is repeated in a memorandum at Record C42, DSO KZN Memorandum dated 2 April 2009, para 12
[59] The memorandum appears at Record D209-D212; see also Record C42, DSO KZN Memorandum dated 2 April 2009, para 11
[60] Record D49, Downer notes of meeting of 6 December 2007.
[61] Record at B12, Conversation 7, line 10c; Record at p. 10, SFA para 23.2; p. 64, para 166; and p. 83, para 227.1
[62] Record at p. 225, Hofmeyr’s AA at para 187.
[63] Record at p. 216, Hofmeyr’s AA at para 150.
[64] Record at p. 213, Hofmeyr’s AA at para 150.
[65] Record at pp. 217 – 218, Hofmeyr’s AA at paras 164 – 166.
[66] Record at pp. 218 and 224, Hofmeyr’s AA at paras 166 and 185.
[67] Dealt with in my supplementary founding affidavit at para 270, p. 98.
[68] Record at p. 233, Hofmeyr’s AA at para 217.
[69] Record at p. 266, Hofmeyr’s AA at para 337. The JSCI report is at record p. 908, annexure “MH17”.
[70] Record at p. 266, Hofmeyr’s AA at para 339.
[71] As accepted by Hofmeyr. See Record at 313, Hofmeyr’s AA at para 630
[72] Annexure “WH 56”, p 376 (note of Matzke). The prosecution team more ambitiously thought that it would be possible to complete the indictment by 12 December 2007, record at p 33, Selfe SFA at para 81
[73] Record D46, Downer notes of telephone conversation (4/12/2007); and Record D57, Downer email notes (29/03/20009), item 15
[74] Rule 53 record at D56-59
[75] Record at p. 238, Hofmeyr’s AA at para 239.
[76] NDPP v Zuma 2009 (4) BCLR 393 (SCA)
[77] Selfe Founding Affidavit at Record p.19-20, paras 24-26. The papers were not annexed to avoid burdening the papers (the founding affidavit is premised on the matter proceeding as one of urgency and it was stated that copies of the affidavits would be supplied at the hearing of the matter). The affidavits have been annexed to the DA’s replying affidavit in the present matter.
[78] NDPP v Zuma 2009 (2) SA 277 (SCA) para 52
[79]Section 179 case: Hofmeyr’s AA at para 6
[80] Rule 53 Record at D312, Du Plooy’s AA at para 124.3
[81] Section 179 case: Baloyi’s AA at para 15
[82] The fact that McCarthy, the prosecution team and NPA senior management may have joined in the decision-making does not mean that the decision is no longer that of Mpshe. See NDPP v Zuma 2009 (4) BCLR 393 (SCA) at para [71]
[83] Record at p. 186, Hofmeyr’s AA at para 57.4
[84] Mpshe filed two confirmatory affidavits in the present matter. The first was deposed to on 30 March 2015, the day before Hofmeyr deposed to his affidavit. Having realised that the first affidavit of Mpshe was not capable of confirming the affidavit of Hofmeyr (which did not exist on 30 March), Mpshe then deposed to a second affidavit on 2 April 2015.
[85] Record at p. 190, Hofmeyr’s AA at para 68
[86] Record at p. 192, Hofmeyr’s AA at para 72
[87] Record at p. 192 Hofmeyr’s AA at para 72
[88] Record at p. 186, Hofmeyr’s AA at para 57.4
[89] Record at p. 373 Annexure “WH53” to Hofmeyr’s AA.
[90] Record at p. 373 Annexure “WH53” to Hofmeyr’s AA.
[91] National Director of Public Prosecutions and Others v Zuma and Another 2008 (1) SACR 258 (SCA) ([2008] 1 All SA 197) (“the SCA search and seizure case”), handed down on 8 November 2007
[92] The same applies to the discussion at the meeting of 1 November 2007. It appears from Downer’s notes (see Record D56, Downer’s email, para 1) that it was mooted, at that time, that the decision should be taken by the Head of the DSO, with representations to be made to the NDPP. No actual decision was taken to assign this role to McCarthy. This position was later changed, when a corporate decision was taken to reinstate the charges.
[93] This explains why the NPA did not obtain confirmatory affidavits from Downer or any other member of the team.
[94] Rule 53 record at D369, para 20
[95] Record at p. 189, Hofmeyr’s AA at para 63
[96] The relevant parts of the Version dated 1 June 2014, are annexed marked “JS27” to the Replying Affidavit.
[97] See the legislation referred to in this paragraph which requires the NDPP to authorise certain prosecutions. If the NDPP does not have the power to authorise same then presumably all these provisions, are invalid.
[98] Accessible at http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=35341
[99] HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336; [2004] 1 HKLRD 513 (judgment of 22 August 2003)
[100] In the Lee Ming Tee case, the appellate court stated as follows:
“184. Although the question is debatable, the better view is that an abuse of process does not exist independently of, and antecedently to, the exercise of a judicial discretion. The judicial decision that there is an abuse of process which requires the grant of a stay is itself the result of the exercise of a judicial discretion. It is for the judge to weigh countervailing considerations of policy and justice and then, in the exercise of the discretion, decide whether there is an abuse of process which requires a stay.”
“187. In [exercising its discretion] the Court must take account of the important public interest in the detection and punishment of crime, more particularly serious crime, as a result of which the investing public has suffered loss. The Court must take account also of the public expectation that persons charged with serious criminal offences will be brought to trial unless there is some powerful reason for not doing so. On the other hand, the Court must have regard to preserving the integrity of the criminal justice system. The Court must also consider the serious burden imposed upon the defendant of facing yet a second lengthy trial.”
[101] Mpshe himself indeed concedes that there is no suggestion that charges against Zuma were brought in order to serve an ulterior purpose. See Record B146.
[102] Record C28ff.
[103] Rule 53 record at B142
[104] Record at p. 538, Hulley’s AA at para 22.
[105] Record at p. 587, Hulley’s AA at para 146.
[106] Record at pp. 595 and 612, Hulley’s AA at paras 170.1 and 211.
[107] On of the DNDPPs, Dr Silas Ramaite (“Ramaite”) indeed raised the question of whether Mbeki would be approached. Rule 53 record at D75
[108] The allegations of a broader conspiracy were not even investigated after Mpsh made his statement. In the statement itself, he stated that the NPA has also decided to prepare a full report and present it to the Minister. See Record at B152, second paragraph from the bottom. Furthermore. on or about 7 April 2009, Patricia De Lille, charges against Ngcuka and McCarthy at the Caledon Square Police Station, because of their alleged undue influence of the timing of the prosecution of Zuma. The matter was never investigated and De Lille has received confirmation that the file has been closed.
[109] NPA senior management recognised that others had to be contacted. For instance, at a meeting of 18 March 2009 [see Record at pp. 321 – 328, Hofmeyr’s AA at “WH1” – “WH8”] it was decided that Hofmeyr should speak to Powell and Davids. Neither meeting took place. Hofmeyr only mentions a meeting in 2008 with Powell.
[110] Supplementary founding affidavit at Record pp. 97 – 99, paras 267 – 271.
· In the case of Ngcuka, during the course of the interview on 24 March 2009, he took the position that it was grossly unfair to him to be confronted with “third-hand information”. He and his lawyer bitterly complained about not being granted access to the recordings themselves. See Rule 53 record at C61, unnumbered paragraph at the bottom of the page.
· In the case of McCarthy, in his letter dated 31 March 2009, McCarthy, as Ngcuka, indicated that he wanted, amongst other things, “access to a complete set of the recordings with dates, times, identities of parties and subject matters allegedly discussed”. McCarthy further indicated that he wanted to “assist as best he could, but was limited by the absence of critical information”. Rule 53 record at D217
[111] Hofmeyr also suggested, at the meeting of 1 April 2009, that if McCarthy wanted to listen to the tapes he should come to South Africa. Rule 53 record at D75
[112] Rule 53 record at B75
[113] Rule 53 record at D213. It is stated that “fairness dictates that you be given the opportunity to indicate / comment your attitude should you so wish”. Basically McCarthy was asked to respond to the questions the day after the decision was taken to drop the charges. That could not have been fair. It is according disingenuous to contend as Hofmeyr does at Record at p. 316, Hofmeyr’s AA at para 651, that McCarthy has refused to respond to the NPA’s questions. He (McCarthy) was hardly given a proper opportunity to do so.
[114] See the correspondence between the parties, attached marked “JS30.1” and “JS30.3” which resulted in part D of the record being made available. Only one letter of Mpshe was produced and this is the one referred to in paragraph 3.9 of the State Attorney’s letter.
[115] Rule 53 record at C46 – C50
[116] Record at p. 315 Hofmeyr’s AA at para 659
[117] Record at p. 315 Hofmeyr’s AA at para 645
[118] Record at p. 317 Hofmeyr’s AA at para 663
[119] Record at p. 317 Hofmeyr’s AA at para 664
[120] Record at p. 315 Hofmeyr’s AA at para 646
[121] Record at p. 315 Hofmeyr’s AA at para 646. These are the Deputy National Directors of Public Prosecutions (“DNPP’s”), who were Hofmeyr himself, Dr Silas Ramaite (“Ramaite”), and, in an acting capacity, Mzinyathi. See Record at p. 171, Hofmeyr’s AA at para 9.
[122] Record at p. 315 Hofmeyr’s AA at para 646
[123] Record at p. 317 Hofmeyr’s AA at para 660
[124] See NDPP v Zuma 2009 (4) BCLR 393 (SCA) at para 60. See, also section 22(2)(c) of the NPA Act, which links the three categories with the word “and”.
[125] Record at p. 171, Hofmeyr AA at para 9.2
[126] Record at p.171, Hofmeyr AA at para 9.3
[127]Record at p. 171, Hofmeyr’s AA at para 9.2; Record at p. 196, Hofmeyr’s AA at para 82
[128] This was indeed the finding of the SCA in NDPP v Zuma 2009 (4) BCLR 393 (SCA) at para 68: “the ‘relevant’ DPP is the one who is ‘responsible’ for the prosecution under subsection (3)(b).”
[129] See, section 13(1)(aA) of the NPA Act, read with the definition of “Investigating Director” in the Act prior to its amendment by Act 56 of 2008.
[130] Section 24(2) of the NPA Act prior to its amendment by Act 56 of 2008.
[131] The allegation in the DA’s supplementary founding affidavit at Record p. 102, Selfe SFA at para 286 is not denied. Batohi was the regional DPP because the prosecution was instituted in the Durban & Coast Local Division of the High Court (see Record at D63); and the charges were centralized in terms of section 111 of the Criminal Procedure Act 51 of 1977, read with section 22(3) of the NPA Act in that jurisdiction (see Record at D200-201).
[132] Record at p. 171, Hofmeyr’s AA at para 9.3. See also Record at p. 235, Hofmeyr’s AA at para 227: “It was unnecessary for McCarthy to insist that Mngwengwe sign the indictment”.
[133] Record at p. 186 Hofmeyr’s AA at para 57.4.
[134] A decision “after consultation with” another functionary requires that the decision must be taken in good faith, after consulting and giving serious consideration to the views of the other functionary. See Unlawful Occupiers, School Site v City of Jhb 2005 (4) SA 199 (SCA) para 13.
[135] Record at p. 249, Hofmeyr’s AA at para 266: until 31 March 2009 only Mzinyathi and Hofmeyr had listened to the tapes. On the evening of 31 March 2009, Mpshe and the “deputies” (i.e. Ramaite, Hofmeyr and Mzinyathi) listen to the tapes. The next day, 1 April, Mpshe announced that he had decided to drop the charges. He did so shortly after the meeting commenced. Whilst it appears that Mngwengwe attended on 1 April, it is not clear whether those present listened to the recordings on that day. Whether they did or not does not matter because Mpshe announced his decision before there was any discussion about the contents of the recordings. See Rule 53 Record at B75.
[136] Record at p. 102, Selfe SFA at para 287
[137] Record at p. 315 Hofmeyr’s AA at para 646
[138] Rule 6(11) application at pp. 54 – 67, Hulley’s AA at paras 46 – 50
[139] Rule 6(11) application at p. 56, Hulley’s AA para 46(d)
[140] The supplementary affidavit was sought to be introduced in response to an argument made by the NPA that the application for leave to appeal had been rendered moot because Zuma elected to submit representations to the NPA in early 2009. The NPA’s argument was that it was prepared to entertain these representations and that it accordingly became unnecessary to determine whether Mpshe was under a duty to request representations from Zuma before taking the 2007 decision.
[141] Rule 53 Record at C17
[142] Intervention application at p. 11, Young FA at para 18 and the annexures referred to there.
[143] The reason appears to be that Hofmeyr misunderstands the requirement. At record p. 315, para 645, Hofmeyr stated that Mpshe was required to take representations from the accused or “any other interested party”. This is wrong. The accused and any other person or party considered to be relevant must be given the opportunity to make representations.
[144] Record at p. 196, Hofmeyr’s AA at para 82
[145] Record at p. 196, Hofmeyr’s AA at para 82
[146] See, also, in this regard: Record at p. 305, Hofmeyr’s AA at para 566; Record at p. 305, Hofmeyr’s AA at para 646: Record at p. 317, Hofmeyr’s AA at para 660
[147] The team recorded their views regarding the oral representations, to the extent that they were shared with them (the prosecuting team were never given access to the actual recordings or the transcripts thereof) in their memoranda dated 20 March 2009 (Rule 53 Record at C34); 2 April 2009 (Rule 53 Record at C40) and 3 April 2009 (Rule 53 Record at C46). The last two memoranda were submitted after Mpshe took his decision on 1 April.
[148] First Record at p. 15, Selfe Founding Affidavit at para 18.1
[149] Rule 53 Record A1 – A46
[150] Rule 6(11) Record at p. 65, Zuma AA at para 48 (asserting that the DA’s representations were not sought under section 179(5)(d))
[151] Intervention Application Record at p. 249, Mpshe’s AA para 66
[152] Record at p. 315, Hofmeyr’s AA at para 646
[153] In his affidavit, Hofmeyr creates the impression that he was solely responsible for the investigation in the following paragraphs: 19; 43 (“my own investigations”); 45 (“my investigations remained incomplete”); 144 (“I established”); 275 (“I had investigated Zuma’s allegations. In my view...”); 535 (“On instructions of Mpshe, I investigated Zuma’s allegations …”)
However, in the following paragraphs, Hofmeyr contends that he was tasked together with Mzinyathi to do the investigation: 571, 247; 571 (“Mpshe tasked Mzinyathi and I to investigate Zuma’s allegations that his prosecution had been manipulated. Mpshe made his decision based on the contents of the intercepted conversations as well as the evidence uncovered as a result of my and Mzinyathi’s investigations”).
[154] Rule 53 Record at B25, Conversation 17, line 40h. Hofmeyr, already on 16 December 2007, criticised Mbeki’s interference in the Zuma prosecution (see Record at p. 258 para 301). It is accordingly apparent that Hofmeyr held the view, contrary to the official position of the NPA as per the affidavit of Du Plooy in the section 179 case, that Mbeki interfered with the Zuma prosecution from the outset.
[155] Rule 53 Record at B24, Conversation 17, line 48a – c
[156] Rule 53 Record at B24, Conversation 17, line 26
[157] Rule 53 Record at B24, Conversation 17, line 33
[158] Record at pp. 71 – 72, Selfe SFA at paras 191 – 195
[159] Record at p. 256, Hofmeyr AA at para 294
[160] See Rule 53 Record at A29 – A47
[161] See Intervention Application Record at p. 236, Mpshe’s AA para 38
[162] The NPA stated in an earlier affidavit in this matter, that the “NPA and accused persons require the guarantee of confidentiality and privilege in order to conduct full and frank discussions to determine whether or not, and for whatever legitimate reason, a criminal prosecution should be stopped or continued with”. See Intervention Application Record at p. 236, Mpshe’s AA para 39. See, also, Intervention Application Record at p. 236, Mpshe’s AA para 39.
[163] See, in this regard: Rule 53 Record at A6 (second and third unnumbered paragraphs); Rule 53 Record at A7 (second unnumbered paragraph); Record at A8-A9. Record at A12, para 3
[164] Rule 53 Record at A45, second unnumbered paragraph
[165] Selfe Founding Affidavit at Record p. 11, para 10.6
[166] , NDPP v Zuma 2009 (4) BCLR 393 (SCA) at para 61
[167] Selfe Founding Affidavit at Record p. 32, para 74
