IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

CASE NO: 19577/2009

In the matter between:

DEMOCRATIC ALLIANCE - Applicant

and

THE ACTING NATIONAL DIRECTOR OF PUBLIC PROSECUTION - First Respondent

THE HEAD OF THE DIRECTORATE OF SPECIAL OPERATIONS - Second Respondent

JACOB GEDLEYIHLEKISA ZUMA - Third Respondent and

RICHARD MICHAEL MOBERLY YOUNG - First Intervening Party

CCLL SYSTEMS (PROPRIETARY) LIMITED - Second Intervening Party

FIRST AND SECOND RESPONDENTS’ HEADS OF ARGUMENT

Introduction

1 On 28 December 2007 the National Prosecuting Authority (NPA) charged Jacob Zuma with various counts of fraud, corruption, money laundering and racketeering.

2 On 10 February 2009, Zuma made written representations as to why he should not be prosecuted. On 20 February, his legal representatives (Michael Hulley, Andrea Gabriel and Kemp J Kemp SC) met with Mokotedi Mpshe, the acting National Director of Public Prosecutions (NDPP) and his senior management team. They made further oral representations.

3 The gist of Zuma’s representations was that Leonard McCarthy, former head of the Directorate of Special Operations (DSO), conspired with Bulelani Ngcuka, former NDPP, to manipulate the Zuma prosecution for political reasons.

4 Zuma’s legal representatives claimed to be in possession of recordings of intercepted conversations between McCarthy and various individuals, all of whom were known supporters of then President Mbeki. According to Zuma, they proved that the NPA had been used as a political tool to target Zuma and his political allies and manipulate his prosecution ahead of the ANC’s elective conference scheduled to take place in Polokwane from 16 – 21 December 2007.

5 The transcripts also exposed McCarthy’s discussions relating to Zuma’s prosecution with Ngcuka and other known Mbeki allies and confidantes (such as former Minister of Intelligence, Ronnie Kasrils, Faiek Davids, former Deputy Head of the Special Investigating Unit and Andre Pienaar, a private intelligence operative associated with Kroll and Associates).

6 McCarthy’s role as head of the DSO was inextricably linked to protecting and advancing the interests of President Mbeki. He used his power as head of the DSO to initiate the Browse Mole report. McCarthy did not inform Pikoli of what he was doing. The final report recommended that Zuma be investigated for his role in an alleged plot to overthrow the government. The intention was to discredit Zuma. The contents of the report were so fanciful that former NDPP Vusi Pikoli dismissed them outright. The Joint Standing Committee on Intelligence (JSCI) later recommended that action be taken against McCarthy for his role in the Browse Mole report.

7 Mpshe instructed William Hofmeyr, Deputy NDPP and Sibongile Mzinyathi, acting head of the Directorate of Special Operations (DSO) to investigate the allegations. Hofmeyr had been involved in overseeing the Zuma litigation since 2007. Mzinyathi was the acting head of the DSO. He was appointed acting head when McCarthy left the NPA in mid-2008 to take up the position of head of Integrity at the World Bank.

8 Hofmeyr and Mzinyathi listened to the recordings. They reported on what they heard to the top management structure of the NPA.1 On 31 March 2007 Mpshe and the Deputies also listened to the recordings. 2

9 The contents of the recordings substantiated Zuma’s claims that McCarthy had manipulated Zuma’s prosecution. They proved that McCarthy had abused his power as head of the DSO, responsible for the Zuma prosecution, to manipulate the Zuma prosecution. He delayed the prosecution. He did so because Ngcuka (and other Mbeki supporters like Mzi Khumalo) told him that the view was that delaying the prosecution would benefit Mbeki’s attempt to retain the position of ANC President at the Polokwane conference. Their intention was to prevent Zuma from becoming President of the ANC and of the country.

10 On 6 April 2009 Mpshe publicly announced his decision to discontinue the Zuma prosecution. A summary of his reasons is contained in a press statement released by Mpshe on 6 April 2009.3

The test on review

11 In its founding papers, the DA characterised Mpshe’s decision to discontinue the prosecution as administrative action subject to review under PAJA. In their answering affidavit the NPA respondents argued that Mpshe’s decision to discontinue the prosecution was not administrative action and was subject to narrow review grounds of legality. They relied on National Director of Public

Prosecutions v Freedom Under Law for this submission.4

12 The DA persists with its argument that a decision to prosecute is reviewable under PAJA, although in its heads of argument it does not pursue any PAJA grounds.5 It maintains that the issues in this case are distinguishable from those in NDPP v FUL (referred to above) because that case was not concerned with a review not to prosecute under s179(5) of the NPA Act.6

13 That distinction is artificial. The principle affirmed applies equally to this case. It is that decisions to prosecute or not to prosecute are subject to review on narrow grounds of legality, which includes the ground of rationality. In NDPP v FUL the SCA held that by limiting the extent to which a court could review decisions of the prosecuting authority not to prosecute, it safeguarded the independence of the prosecuting authority. It recognised the “great width” of the discretion to be exercised by the prosecuting authority and what it termed the polycentric character that accompanied its decision-making, including considerations of public interest and policy.7

14 Rationality is a minimum requirement for the exercise of public power. The test for rationality does not mean that “the courts can or should substitute their opinions as to what is appropriate, for the opinions of those in whom the power has been vested. As long as the purpose sought to be achieved by the exercise of public power is within the authority of the functionary, and as long as the functionary’s discretion, viewed objectively, is rational, a court cannot interfere with the decision because it disagrees with it or considers that the power was exercised inappropriately.” 8

15 In Democratic Alliance 9 , Yacoob ADCJ, reaffirmed the test for rationality review. He held:

“[R]ationality review is really concerned with the evaluation of a relationship between means and ends: the relationship, connection or link (as it is variously referred to) between the means employed to achieve a particular purpose on the one hand and the purpose or end itself. The aim of the evaluation of the relationship is not to determine whether some means will achieve the purpose better than others but only whether the means employed are rationally related to the purpose for which the power was conferred.”

16 Where a decision is challenged on the basis of rationality, courts are obliged to examine the means selected to determine whether they are rationally related to the objective sought to be achieved. The purpose of that inquiry is not to determine whether there are other means that could have been used, but whether the means selected are rationally related to the objective sought to be achieved. And if objectively speaking, they are not, they fall short of the standard demanded by the Constitution.10

17 In summary, the determination whether a decision is rational or not involves an inquiry into the following:

17.1 The purpose for which the decision was taken;

17.2 Whether the decision is supported by the evidence and information before the decision-maker as well as the reasons given for the decision;

17.3 Whether the decision objectively is capable of furthering the purpose for which the power was given.

Summary of submissions

No connection between information known to Mpshe and his stated reasons for discontinuing the prosecution

18 The DA contends that Mpshe could not have rationally concluded that McCarthy manipulated the timing of the service of the indictment to suit Mbeki since the evidence indicates that Mpshe made the decision to delay the service of the indictment himself. They say further that McCarthy played no material role.

19 This submission is flawed for two reasons. First, it is based on a misinterpretation of the legislative framework governing decisions to prosecute. Mpshe, as acting NDPP, had no power to institute a prosecution. Had he purported to do so, that decision would have been invalid. The legal authority to institute a prosecution vests with DPPs. In this case it vested with McCarthy. Secondly, as a fact, McCarthy was in charge of the Zuma prosecution. The prosecuting team reported to him. They took instructions from him. He made all decisions about the prosecution, including the decision when to institute the prosecution.

NPA’s ex post facto attempt to construct new and better reasons for Mpshe’s decision

20 The DA maintains that much of the material that the NPA has placed before the court constitutes an ex post facto attempt to construct new and better reasons for Mpshe’s decision. The intention, they say, is to show that the NPA was “generally manipulated” by senior managers for political ends and that the underlying decision to prosecute Zuma was tainted by McCarthy’s improper motives.

21 Mpshe explained during the press conference on 6 April 2015 that his decision was taken on the basis of facts that were known to him at the time, and on the basis of verified allegations. He confirmed that the NPA would continue its investigation of the allegations against Zuma.11

22 The NPA respondents’ answering affidavit provides greater insight into how McCarthy used his powers to for an improper purpose. It explains McCarthy’s role in the discredited Browse Mole Report. It provides details of conversations and text messages McCarthy exchanged with Andre Pienaar (a London-based

employee of Kroll and Associates, a private intelligence company) and Faiek Davids (Deputy head of the Special Investigating Unit).12

23 These conversations or text messages expose the fact that McCarthy saw no contradiction with using his powers as head of the DSO to advance the political interests of one faction in the ANC. In fact, McCarthy saw it as his duty to align himself with Mbeki and his supporters and was willing to use his position in the NPA to achieve that end.13 He criticised Hofmeyr for not being willing to do so.

24 As Hofmeyr explained, Zuma’s revelations came at a time of growing unease and concern amongst senior managers in the NPA about political interference by the Mbeki administration in the affairs of the NPA. Examples of this include Mbeki’s decision to suspend Vusi Pikoli. Pikoli was suspended, ostensibly because of a breakdown in the relationship between himself and the Minister of Justice and Constitutional Development. In truth, this ground was never pursued. He was suspended because he refused to bow to political pressure from Mbeki about the Selebi prosecution.14

25 At no stage has he ever suggested that Zuma’s prosecution was tainted or that it was initiated with an improper motive. This information provides context in which Mpshe made his decision. Mpshe made his decision against the background of increased tension between the NPA and the executive. Given the context, his conclusion that McCarthy was acting for an ulterior purpose is rational.

No connection between the decision to discontinue the prosecution, Mpshe’s reasons and the purpose of Mpshe’s power.

26 The DA contends that even if McCarthy acted improperly, that alone cannot vitiate the prosecution of Zuma as long as the evidence indicates a case for Zuma to answer. The implication is that a decision to stop a prosecution will only be rational if, in addition to an improper motive, the case against the accused is weak.

27 Mpshe stopped the prosecution on policy grounds. McCarthy’s conduct perverted the Constitutional guarantee of prosecutorial independence. Mpshe felt that it was unconscionable to continue the prosecution in these circumstances.

Legality: failure to comply with s 179(5)(d)

28 The DA argues that Mpshe failed to comply with a number of requirements under section 175(9)(d). Amongst those are that he failed to consult with the relevant DPP, and that he failed to take representations from the accused, the complainants and other persons or parties he considered relevant to the decision.

29 In summary, the requirement to consult with the relevant DPP is because, before the NDPP can overturn a decision to prosecute, he must consult with the office that initiated the prosecution. The power to institute proceedings vests in the DPP. In the case of the DSO, the power to institute a prosecution vests in the head of the DSO and in the ID. The record shows that Mpshe consulted with both Mzinyathi (acting head of the DSO) and Mngwengwe before the made his decision.

30 We deal with the steps that Mpshe took and why they comply with the requirements of s 179(5) in further detail below.

The reasons for Mpshe’s decision

31 Mpshe’s statement records that his decision to discontinue the prosecution was taken for the following reasons:

31.1 During the course of Zuma’s representations, Zuma’s legal representative made allegations about alleged political manipulation of the NPA.

31.2 They substantiated these allegations. They provided the NPA with recordings of telephone conversations between McCarthy and various individuals. The National Intelligence Agency had legally obtained recordings of some conversations in the course of its investigation into circumstances surrounding the production and leaking of the Browse Mole report.

31.3 Mpshe appointed Sibongile Mzinyathi and William Hofmeyr to listen, verify and investigate the contents of the recordings.

31.4 After careful consideration, and after obtaining comment from both Ngcuka and McCarthy, Mpshe concluded that McCarthy had abused the legal process for a purpose outside and extraneous to the Zuma prosecution.

31.5 McCarthy used the legal process for a purpose other than that for which it was intended. More particularly, he manipulated the timing of the prosecution for a purpose unrelated to the prosecution.

31.6 McCarthy’s conduct amounted to a serious abuse of process and offended his sense of justice.

31.7 In these circumstances it was neither possible for Mpshe nor desirable for the NPA to continue with the prosecution of Zuma.

32 Mpshe’s statement provides insight into the policy and considerations against which Mpshe assessed McCarthy’s conduct. Mpshe highlighted the constitutional requirement, expressed in s 179(4), for the NPA to exercise its functions without fear, favour or prejudice. He emphasised the responsibility that prosecutors have to secure fair and just treatment of those who appear before them.

33 Mpshe considered the circumstances under which a criminal prosecution can be discontinued. In arriving at his decision he considered the impact of balancing the public interest in ensuring that those charged with serious offences be tried against a “compelling public interest which expresses a

distaste and outrage for abuse of process by law enforcers who are expected to behave with absolute integrity, impartiality, fairness and justice”.15

34 He concluded that McCarthy’s conduct constituted abuse of process because it had perverted the judicial or legal process in order to accomplish an improper purpose. In this case, the manipulation of the timing of the prosecution was for an improper purpose. It was unrelated to the needs of the prosecution. It was informed solely by what was perceived to be in the political interests of Mbeki. It was designed to ensure that Zuma did not become the next President of the ANC or of the country.

35 Mpshe highlighted the special role that the NPA plays as one of the guardians of the Constitution and the Bill of Rights. He confirmed that on a number of occasions he had been required to state under oath that the NPA’s prosecution of Zuma was beyond reproach. McCarthy’s wrongdoing meant that he could no longer give those assurances with any confidence in relation to the Zuma

prosecution. In these circumstances, he concluded that it was neither possible nor desirable for the NPA to continue with the prosecution of Zuma.16

36 Mpshe’s statement made it clear that the reasons given were based on information that was available to the NPA at the time. He confirmed that the NPA had done its best within the time available to get to the bottom of the allegations. He made it clear that the NPA would continue investigating the allegations.

37 The NPA’s answering affidavit provides additional information about McCarthy’s involvement in manipulating the Zuma prosecution. It contains details about his involvement in initiating and managing the Browse Mole investigation.17 It is the result of the NPA’s further investigations that Mpshe said the NPA would undertake.

38 The DA maintains that this amounts to an attempt by the NPA to put up additional or new reasons to justify Mpshe’s decision. The reason for this, they claim, is because the original reasons given are weak and the NPA knows that in order to justify Mpshe’s decision, it needs to provide additional and better reasons.18

39 The NPA respondents accept that the rationality of Mpshe’s decision must be assessed on the basis of what he said at the press conference. The additional information provided in the NPA’s answering affidavit provides context and background to the decision. It does not contradict the reasons contained in Mpshe’s press statement. They remain the same. They are also valid

The facts

The period between 2000 and November 2007

40 The NPA’s prosecution of Zuma spanned almost a decade. Allegations of fraud and corruption against Zuma first surfaced in the context of the investigation by the Investigating Directorate: Serious Economic Offences (IDSEO) during 2000.

41 On 6 November 2000 IDSEO initiated a preparatory investigation in terms of section 28(13) of the NPA Act as part of a multi-agency joint investigation team (“JIT”) together with the Auditor-General and the Public Protector. The investigation focused on negotiations and/or contracts concluded for the

purchase of corvettes, submarines, light utility helicopters, maritime helicopters, lead in fighter trainers and advanced light fighter aircraft.19 McCarthy was the head of IDSEO at the time. He formally declared the investigation. He also led the investigation and later, the prosecution

42 On 23 August 2003 Ngcuka, the then NDPP, announced his intention to indict Schabir Shaik on two counts of corruption arising out of investigations into allegations of corruption in relation to the arms deal.

43 At a press conference attended by Penuell Maduna, then Minister of Justice, Ngcuka stated that while there was a prima facie case of corruption against Zuma, the NPA had decided not to prosecute him because it was not sure that its prospects of success were strong enough for a winnable case.20

44 On 2 June 2005 Shaik was convicted in the Durban High Court on two counts of corruption and one count of fraud. The court found that that Shaik (and the companies associated with him) had made payments to Zuma, when he was the MEC for Economic Affairs and Tourism in KwaZulu-Natal and later when he was the Deputy President of the Republic of South Africa, to secure his political influence for their financial benefit.

45 Shaik was sentenced to an effective fifteen years imprisonment and the companies to an array of fines. The Asset Forfeiture Unit obtained a confiscation order of R43 million against him and his companies. Shaik appealed to the SCA against his conviction and sentence. On 6 November 2006, the SCA dismissed his appeal.21

46 Much of the evidence used to convict Shaik implicated Zuma. Vusi Pikoli, the NDPP at the time, asked for a report from the prosecution team on the prospects of a successful prosecution of Zuma and the Thint companies. On 17 June 2005 the prosecution team briefed both Pikoli and McCarthy. IDSEO had been absorbed into the DSO. McCarthy was the head of the DSO. The prosecution team confirmed that much of the evidence used to convict Shaik implicated Zuma. However, they recommended that a decision on the prosecution be deferred pending further investigations.

47 Pikoli discussed the matter with McCarthy. He decided that it was untenable to delay the prosecution. The prosecution and conviction of Shaik and his companies had elicited huge media and public interest. Heightened speculation as to whether Zuma would be prosecuted or not was harmful to Zuma. Pikoli felt that a decision on whether or not to prosecute Zuma was a matter of national interest. Also, Zuma had repeatedly called for his “day in court”. Consequently, on 20 June 2008, Pikoli informed the prosecution team that he had decided to charge Zuma.22

48 On 12 August 2005 the NPA was granted authority under section 29 of the NPA Act, to conduct search and seizure operations at Zuma’s residential address in Johannesburg and at the premises of his attorneys and certain business associates. The search and seizure operations were executed on 18 August 2005 at the business premises of Juleikha Mahomed (Zuma’s former attorney), Michael Hulley (Zuma’s attorney), Zuma’s residence in Forest Town, the home and business premises of Jurgen Kogl, various business premises of companies in the Nkobi group of companies and the Pretoria office of Thint and the home of one of its directors.

49 On 26 August 2005, Mahomed applied to set aside two of the search warrants in the then Witwatersrand Local Division of the High Court. On 9 September 2005 Hussain J upheld the application. On 10 October 2005 Zuma and Hulley applied to set aside seven search warrants at premises associated with Zuma, including at Hulley’s business premises. On 15 February 2005 Hurt J declared five of the seven search warrants invalid. The NPA appealed to the SCA against the findings of Hussain J and Hurt J.

50 Shaik, Kogl and Moynot (Thint’s director) also applied to set aside the search warrants. On 14 October 2005, Shaik and two of his companies in the Nkobi group of companies applied to the Durban High Court to set aside the search warrants. Shaik and Kogl’s applications were never set down.

51 On 17 November 2005, Kogl and his company Cay Nominees (Pty) Ltd applied to the Pretoria High Court to set aside the search warrants. Also on 6 January 2006, Thint, together with the Moynots applied to the then Transvaal Provincial Division of the High Court to set aside their search warrants. The NPA conceded that the search warrants had been unlawful.

52 In the interim, Zuma was arraigned for appearance in the Pietermaritzburg Regional Magistrate’s court on 12 October 2005. On that occasion the matter was postponed for trial to 31 July 2006. On 31 July 2006, the NPA was not ready to proceed. It had not yet received an analysis from KPMG of the significance of documents seized during the search and seizure operation of 18 August 2005 because the status of the seized documents was not settled. The NPA applied for a postponement. Zuma opposed it. The postponement was

argued on 5 September 2006. Msimang J refused to grant the postponement. On 20 September 2006, Msimang J struck the matter off the roll.23

53 The appeals against the orders of Hussain J and Hurt J were argued in the SCA on 29 August 2007. Prior to the hearing the NPA conceded the appeal in respect of Mahomed’s search and seizure subject to an undertaking that she preserved the documents.

54 On 8 November 2007 the SCA overturned the High Court decisions. It upheld the lawfulness of the search warrants executed at the business premises of Hulley and Thint, and at Zuma’s Johannesburg home. It opened the way for the prosecution of Zuma to commence afresh.24

55 Zuma and Thint applied to the Constitutional Court for leave to appeal against the SCA’s decision to uphold the search warrants. The NPA opposed that application.25

McCarthy’s role in the 2007 decision to charge Zuma

56 The period immediately before the SCA delivered its judgment on the search warrants until after Zuma was charged (from the beginning of November 2007 up to the end of December 2007) is crucial to understanding the context in which Mpshe took his decision.

57 Between the beginning of November and the end of December 2007, the NPA considered whether or not to charge Zuma on various counts of fraud, corruption and money laundering. McCarthy was central to events at the time. He was the head of the DSO and was responsible for managing the Zuma prosecution. The prosecution team, comprised of prosecutors and investigators from the DSO and NPA, reported to him and took direction from him. In practice he was responsible for making all decisions about the prosecution, including when to institute the prosecution even though he did not sign the indictment. The indictment was signed by Thanda Mngwengwe, an ID in the DSO. As head of the DSO, and an ID in his own right, McCarthy had the authority to give instructions to the prosecuting team, which he did.

58 The context in which the events unfolded is significant. It helps to contextualise McCarthy’s conduct and highlights the considerations that motivated him. It explains why he manipulated the timing of the prosecution.

59 The ANC was preparing for its national conference, scheduled to take place in Polokwane from 16 to 20 December 2007. Zuma was expected to challenge President Mbeki for the position of ANC President. Seven out of nine ANC provincial list conferences had nominated Zuma over Mbeki for the position of President.26 Given the groundswell of support for Zuma from branches of the ANC, the likelihood of Mbeki’s defeat at Polokwane seemed high. A decision by the NPA on whether to charge Zuma and if so, when, assumed a heightened significance and with it, McCarthy’s role as agent on behalf of Ngcuka and other Mbeki supporters.

60 At the same time that McCarthy participated in meetings between Mpshe and the deputies and prosecution team, he secretly interacted with Ngcuka and other known Mbeki supporters, and took instructions from them about the timing of the Zuma prosecution. Mpshe and the deputies were unaware of this at the time. The extent of McCarthy’s involvement with Ngcuka and his willingness to take political instructions about the timing of the prosecution were only revealed during Zuma’s representations. As far as Mpshe was concerned, McCarthy, like everyone else who was involved, wanted the prosecution finalised as soon as possible.27

61 This period began on 1 November 2007 with a meeting between Mpshe and his deputies with McCarthy and the prosecution team. They reviewed the prosecution team’s readiness to proceed with the prosecution should the SCA find in favour of the NPA.28

62 Billy Downer, the head of the prosecution team, later recounted what took place at that meeting to Andrew Breitenbach, counsel for the NPA at the time. He confirmed that the meeting decided that the decision whether or not to proceed with the prosecution should be left to McCarthy – i.e. the head of the DSO and

an Investigating Director with authority to initiate prosecution proceedings under the NPA Act.29

63 Mpshe was keen to ensure that the prosecuting team and McCarthy understood that prosecution decisions would be left to them. 30 Both his predecessors had purported to make decisions about whether or not to prosecute Zuma.

64 Mpshe had no authority to make decisions about the Zuma prosecution. His authority to make decisions about the Zuma prosecution were limited to decisions whether to include racketeering charges in the indictment or whether to centralise proceedings.

65 Under s 111 of the Criminal Procedure Act 51 of 1977, read with section 22(3) of the NPA Act or s 2(4) of POCA, Mpshe could authorise that various criminal proceedings be tried in one jurisdiction. Under s 2(4) of POCA31, only Mpshe, as acting NDPP, had the authority to include racketeering charges in an indictment. While these are decisions incidental to the prosecution, they do not qualify as prosecution decisions.

66 Mpshe knew that if Zuma were to be charged he would probably make representations as to why he should not be prosecuted. Those representations would be made to Mpshe. Mpshe stressed the need to keep the process of the decision to prosecute separate from the process to review the decision.32

67 On 8 November 2007 the SCA ruled in favour of the NPA; it upheld the lawfulness of the search warrants.

68 The prosecution team began the process of finalising the investigation and the indictment.33 Their first step was to finalise the indictment. They revived an earlier information request to the Mauritian authorities.

69 Between 8 November 2007 and 29 November 2007 various meetings were held involving Mpshe, his deputies and McCarthy and the prosecution team. The Zuma prosecution was a high profile case. Part 4, Clause B3 of the NPA’s Prosecution Policy Directives, issued in terms of s21 of the NPA Act, required that the NDPP be briefed on high profile cases.34

70 On 12 November 2007 Mpshe met with his deputies to discuss the Zuma prosecution. McCarthy, Ramaite and Hofmeyr were tasked to meet with the prosecution team to review the case file. At that meeting Mpshe reiterated that it was McCarthy who should take the final decision whether or not to prosecute since he did not have the power to do so.35

71 On 13 November 2007, the prosecution team applied to Mpshe for authority in terms of section 2(4) of the POCA to include racketeering offences in terms of section 2(1) of POCA in the final indictment.36 The final draft was completed on 20 November 2007.37 It records the prosecution team’s view that there was no reason to delay the prosecution.38

72 On 14 November 2007 Mpshe and the deputies met with the prosecution team for that team to provide a briefing on the status of the investigation. McCarthy was present at this meeting.39

73 It was agreed that the prosecution team would consult with the NPA’s counsel at the time, Wim Trengove SC, on the contents of the indictment.40

74 On 17 November 2007 McCarthy instructed Downer to finalise the indictment and to include Thanda Mngwengwe in any future discussions about the Zuma prosecution. Mngwengwe was the Investigating Director in the DSO who was formally responsible for the Zuma prosecution. In practice, he signed all indictments issued by the DSO. He was not, however, involved in the day-to- day management of the Zuma prosecution. The prosecution team did not report to him. They reported to McCarthy.41

75 On 20 November 2007 McCarthy reported on progress in the Zuma case to the NPA’s Executive Committee.42

76 On the same day the prosecution team applied to Mpshe to authorise the centralisation of charges in terms of section 111 of the Criminal Procedure Act 51 of 1977 read with section 22(3) of the NPA Act.

77 On 21 November 2007, McCarthy met with Downer in Cape Town to discuss the prosecution. They agreed that finalising the indictment was to be left to the prosecution team.43

78 On 26 November 2007 Mpshe and his deputies met again to discuss the Zuma prosecution. McCarthy was not present. The meeting decided that Mpshe and McCarthy should brief the Minister about the status of the prosecution, including the prosecution team’s proposal to include racketeering charges in the indictment.44

79 On 27 November 2011 Mpshe and his deputies met to discuss what still needed to be done to finalise the Zuma prosecution.45

80 The only outstanding step required to institute the prosecution was for McCarthy and the prosecution team to brief them on the final indictment. That meeting took place on 29 November 2007. Downer recorded the decisions of the meeting in his diary. He recorded: “Meeting with NDPP. Prosecution finally approved. Racketeering”.46

81 Between 30 November and 3 December 2007, Downer and the prosecution team worked on a report to the Minister of Justice in terms of section 33 of the NPA Act. Paragraph 6(e) read:47

“It is not in the interests of justice, the State or the accused that the prosecution should remain in limbo. It is virtually certain that the accused will argue in their inevitable application for a permanent stay of prosecution that the prosecution has been unduly delayed. They will rely, inter alia, on their Constitutional fair trial rights to a speedy trial. Any further delay might tend to bolster the accused’s arguments.”

82 On 4 December 2007 Mpshe telephoned Downer to discuss the contents of the draft s 33 report that Downer had sent him. Mpshe told Downer that he was waiting for an appointment to meet with the Minister. Downer asked him when the NPA was expected to announce its decision to charge Zuma. From Downer’s, Mpshe told him that there was a possibility that the announcement would only be made after Polokwane.48

83 On 6 December 2007 Mpshe called Downer for the second time.49 He told Downer that although he was satisfied with the draft indictment, he had decided to delay the prosecution until the following year because he did not want to be seen to be interfering with “the Polokwane process”, particularly in light of President Mbeki’s call for calm and stability prior to Polokwane.

84 Mpshe told Downer that his discussion with the Minister had given him further “insight” into why it was necessary to delay the prosecution. When challenged by Downer that Mpshe had allowed the Minister to influence him, Mpshe told Downer that it was “his decision. No one else’s.”50

85 Downer followed up his discussion with Mpshe with a strongly worded memorandum on behalf of the prosecution team. The memorandum records:51

85.1 The Constitution requires the NPA to exercise its functions without fear, favour or prejudice. This requirement was echoed in s 32 of the NPA Act, the NPA’s mission statement, and the United Nations Guidelines on the Role of Prosecutors;

85.2 The prosecution team had consistently recommended that Zuma be charged as soon as possible, especially in the light of the fact that delays had consistently been challenged in the litigation in the prosecution;

85.3 The prosecution team’s recommendation (to charge Zuma and to include racketeering charges in the indictment) was endorsed during a meeting with Mpshe and the deputies on 29 November 2007;

85.4 In their subsequent memorandum to Mpshe and their draft s 33 report to the Minister, they had explained why it was necessary for the indictments to be finalised before the NPA filed its answering papers in the Constitutional Court;

85.5 As far as they were concerned, any delay in announcing the prosecution after Polokwane, for reasons unconnected to the prosecutorial process, would be in conflict with the constitutional duties of the Project Team and the NPA.

85.6 An announcement about whether or not the NPA intended charging Zuma was relevant to the democratic processes which were presently unfolding. This was a reference to Polokwane.

85.7 The prosecution team advised against the prosecution “dabbling” in matters of politics, even with the best possible intentions. Although they disputed the fact that considerations other than purely prosecutorial ones should be considered, they felt that withholding the fact that a decision had been taken to prosecute Zuma and Thint for political considerations was contrary to the NPA’s constitutional mandate.

85.8 Any deviation from the NPA’s routine practices would expose the NPA to criticism that would be difficult to defend or refute.

86 It is apparent that the timing of the announcement was significant and, as far as the prosecution team was concerned, could have far-reaching consequences. They did not regard it as something incidental to the prosecution or insignificant. Any decision to delay the prosecution for reasons unconnected to the prosecution was improper, even if the reason was to avoid any instability caused by Zuma being charged before the Polokwane conference. They felt so strongly that they had initially decided to resign from the prosecution in protest,

but had reconsidered this in the interests of the NPA.52

87 The DA singles out the conversations between Downer and Mpshe on 4 and 6 December 2007 respectively as evidence that Mpshe and not McCarthy took the decision to delay the prosecution. It argues that Hofmeyr’s statement - contained in the NPA respondents’ answering affidavit and confirmed by Mpshe - that McCarthy persuaded Mpshe that the prosecution should be delayed until after Polokwane should be discounted.53

88 The DA appears to discount the fact that over that period (November to December 2007) McCarthy had attempted informally on three separate occasions to persuade the head of the prosecution team, Hofmeyr and Mpshe that the prosecution should be delayed until after Polokwane.

88.1 On 12 November 2007 McCarthy first raised the possibility of postponing the prosecution with Downer. Downer kept a handwritten note of the conversation. It records that McCarthy described the option of postponing the prosecution as the “Cicero approach”. Downer disagreed. He told McCarthy that he favoured commencing with the prosecution as soon as possible.54

88.2 On 21 November 2007 McCarthy and Downer met. They agreed that the indictment should be finalised. McCarthy did not bring up a possible postponement.55

88.3 Around the same time, McCarthy met separately with Hofmeyr. He attempted to lobby Hofmeyr, suggesting that the prosecution should be delayed. It was during McCarthy’s discussion with Hofmeyr that Hofmeyr says that he first understood McCarthy’s motivation. McCarthy told him that public servants had a duty to assist President Mbeki and to do everything to ensure that he was successful at Polokwane.56

88.4 Hofmeyr told McCarthy that it would be unconscionable for the NPA to risk the future and independence of the NPA by becoming embroiled in factional battles within political parties. He realised that McCarthy was committed to supporting Mbeki and he was willing to compromise the integrity of the NPA if required.57

88.5 Between 29 November 2007 and 3 December 2007 McCarthy met with Mpshe and told him that he thought it was the better option for the Zuma prosecution to be postponed. Mpshe had already signed the s 33 report to the Minister. It briefed her on the status of the prosecution. It advised that there was no reason to delay the prosecution. It had been prepared after the meeting of 29 November 2007, where the prosecution team’s recommendation to include racketeering charges had been endorsed. Mpshe submitted the s 33 report on the basis that all involved understood and accepted that the prosecution should commence as soon as possible.58

88.6 Mpshe has explained that even though he did not initially support McCarthy’s decision to postpone the prosecution, he accepted that it was McCarthy’s decision to make. He knew that he could not oppose it.59

88.7 Mpshe has also explained why he decided that it was appropriate for him, as head of the NPA, to inform Downer about the decision to delay the prosecution. He knew that Downer would be angry about the decision and felt that he, as head of the NPA, should take responsibility for the decision, even though it was not his decision to make.60

89 In the absence of any legitimate basis on which to dispute Mpshe’s claim, this Court is bound by the factual chronology as set out above. That includes the NPA respondents’ claim that McCarthy persuaded Mpshe that the prosecution should be delayed.61

Post Polokwane decision to charge Zuma

90 Elections for ANC President were held on the evening of 17 December 2007. The announcement of the results was made the following evening and Zuma was elected as the President of the ANC.

91 On 19 December 2007 Ngcuka sent McCarthy a message, telling him to finalise his future plans. Presumably this was a reference to McCarthy’s planned exit from the NPA to take up a position at the World Bank. McCarthy telephoned him. He asked Ngcuka whether that meant he should not deal with the Zuma’s prosecution. He wanted to know if he should let others deal with it.62

92 Ngcuka made sure that McCarthy knew that he wanted him to finalise the prosecution. McCarthy obviously took his instructions to heart. On the same day he telephoned Ngcuka and told him that he hoped to be ready “move on Friday.”

93 He also told him that the more “they delayed” the more difficult it would be for them to act.63 He did so notwithstanding the fact that he and Mpshe had agreed that the prosecution would be delayed until early the following year (January 2008).64

94 On 20 December 2007 Mpshe was interviewed about the status of the Zuma prosecution on Radio 702. He was asked whether or not Zuma would be prosecuted and, if so, when it was likely to happen. Mpshe said that the investigation was complete and that a final decision on when to take action against Zuma was “imminent”. Mpshe, who was on leave at the time, still expected that Zuma would be charged early the following year.65

“The investigation is complete. All that we are doing now is to tie the loose ends. The investigation, with the evidence we have now, points to a case that can be taken to court.”

95 Clearly, when Mpshe gave the interview he was unaware that McCarthy had already taken the decision the day before. This is further evidence that McCarthy was in control of the Zuma prosecution.

96 McCarthy heard about the interview and telephoned Mpshe. He told him that he had decided to institute the prosecution immediately. Mpshe could see no reason why it could not wait until early the following year as they had agreed. He told McCarthy that even though he did not agree with him, the decision was McCarthy’s decision to make.66

97 Although McCarthy had requested Downer to finalise the indictment before 14 December, it appears that he found a mistake, and on 21 December 2007 he instructed Downer him to amend the indictment. Significantly, the entry in Downer’s diary on the day reads: “Leonard gives go ahead for prosecution”.67

98 Downer finalised the indictment on 24 December 2007 at 13h00. He contacted Du Plooy for him to make arrangements with the sheriff to serve the indictment. McCarthy had originally wanted the indictment to be served on 24 December. This proved impossible because there was a mistake in the indictment that needed to be corrected. The sheriff also wanted the DSO to make extra copies of the indictment. The prosecuting team was unable to get everything done on time.68

99 On 26 December 2007, a public holiday, McCarthy contacted Steynberg and Du Plooy, two members of the prosecuting team. He told them that Mpshe wanted the indictment served the following day, on 27 December 2007. Mpshe had given no such instruction. 69

100 McCarthy also contacted Mngwengwe, who was on leave at home. Steynberg had to drive to Mngwengwe’s home in rural KwaZulu-Natal so that Mngwengwe could sign the indictment. Steynberg then had to fly back to Pretoria with the indictment.70

101 As Hofmeyr points out in his answering affidavit, there was no need for McCarthy to move with such haste to finalise the indictment. It could easily have waited until the beginning of the following year. The prosecution team as annoyed. They were on leave. They had to interrupt their leave to finalise and serve the indictment.71

102 On 28 December 2007, the indictment was served on Zuma. Predictably, the timing of the decision to institute the prosecution was criticised. There was no reason to charge Zuma over the festive period when he, like many people, was on holiday.

103 The trial was expected to commence in August 2008.

McCarthy delayed the Zuma prosecution for an ulterior purpose

104 Unbeknown to Mpshe, the prosecution team and the deputies, whilst the prosecution team was finalising the indictment on the understanding that the prosecution would commence as soon as possible, McCarthy was being lobbied by Ngcuka and others to delay the prosecution.

105 The DA attempts to minimise the importance of the transcripts. The reason is plain. They are critical because they demonstrate that McCarthy’s conduct and the decisions he made about the Zuma prosecution, particularly the decision to delay the prosecution, were politically motivated. They were intended to bolster Mbeki’s chances of defeating Zuma at Polokwane.

106 The transcripts show that McCarthy not only discussed the prosecution with Ngcuka and others, but that he took instructions from Ngcuka about what to do. This interaction was broader than just the timing of the prosecution. It extended to decisions about what the NPA’s Constitutional Court papers should contain.

106.1 On 7 November 2007, the day before the SCA judgment was delivered, Ngcuka and McCarthy spoke twice. The first conversation was at 10h25. There was speculation in the press about whether or not Zuma would be charged before the Polokwane conference. McCarthy asked Ngcuka whether he had read the editorial, entitled “Silence in the Zuma Camp”, in that morning’s Business Day.72

106.2 The editorial speculated about the effect of continuing uncertainty about Zuma’s future – i.e. whether he was likely to face criminal charges in the future. It speculated that uncertainty about Zuma’s prosecution were harmful to his prospects of successfully challenging Mbeki for the position of ANC President. For as long as there was not a clear decision to charge him, it appeared that it was more difficult for Zuma to claim to be a victim of political conspiracy.73

106.3 McCarthy told Ngcuka that when he read the editorial he had been reminded of a recent conversation between himself and Ngcuka in which Ngcuka had expressed a “similar sentiment” - i.e. that delays in prosecuting Zuma were harmful to him. McCarthy’s view was that Zuma should be charged immediately.

106.4 The second conversation on 7 November 2007 took place at 13h23.74 McCarthy telephoned Ngcuka to continue their earlier conversation. Ngcuka told him that he had read the editorial that McCarthy had referred to in their earlier discussion. Ngcuka told McCarthy that “there is not a wrong or right question about this thing here. Nobody actually knows what the presentation is likely to be”.

106.5 On 12 December 2007 McCarthy and Ngcuka discussed two issues: the NPA’s Constitutional Court papers and the Zuma prosecution. By then it is clear that McCarthy is being forced to delay the decision, and he is clearly not comfortable with that. He asks Ngcuka to keep his mind open about the ”when” factor, and points out that he will be acting as NDPP, and that the racketeering and centralisation decision will have been taken by 14 December.

106.6 Ngcuka impressed on McCarthy that his mind will not change and the importance of ensuring that Zuma was not charged before or during the weekend – i.e. not during the beginning of the Polokwane conference.75

106.7 On 13 December 2007 McCarthy told Ngcuka that the Constitutional Court papers would be filed the following day. Regarding the Zuma prosecution, he asked Ngcuka whether “the position had changed” - a reference to when Zuma should be charged. He appears almost desperate, saying that he would check in with Ngcuka daily or even twice a day if necessary. He again asked him “whether the script” had changed.

106.8 McCarthy told Ngcuka that everything was in place for him to charge Zuma. He made it clear that the only reason the prosecution was being delayed was because that was what Ngcuka and others believed would best serve Mbeki’s interests.76

106.9 McCarthy and the Minister spoke the following day (14 December 2007 at 10h32). McCarthy assured the Minister that the NPA had no intention of arresting Zuma.77 She was concerned because of rumours in the press that the NPA planned to arrest both Selebi and Zuma before the Polokwane conference.

106.10 McCarthy conveyed the details of his conversation with the Minister to Ngcuka. He called him at 10h53 on 14 December 2007.78 McCarthy confided to Ngcuka that he did not know why “people” including the Minister were so nervous. He assured him that the NPA had not done anything. In other words, that Zuma had not been charged. The only thing that the NPA had done relating to Zuma was to finalise its papers opposing Zuma’s application for leave to appeal to the Constitutional Court.79

106.11 Shortly after, at 13h08, McCarthy called Ngcuka to confirm that the Constitutional Court papers had been filed and that their contents were now a matter of public record.80

106.12 Elections for ANC President were held on the evening of 17 December 2007. Zuma was elected as President of the ANC. The announcement was made on 18 December 2007.

106.13 After the results were made public, Mzi Khumalo telephoned McCarthy. They discussed the outcome of the election results. Both agreed that it was “a bad day for the whole country.”81

106.14 The next day (19 December 2007 at 12h26), Ngcuka sent McCarthy the following text message:82

“From now onwards, you are on your own. It’s imperative that you finalise your future plans pronto.”

106.15 McCarthy telephoned Ngcuka. Ngcuka repeated he should “get out” of the NPA as soon as possible. He also told him that he was “exposed completely, presumably because of his actions in support of Mbeki, and that he could no longer rely on those whom he has been assisting being there to cover his back, or to protect him.83

106.16 The reference to “getting out” and the finalising his future plan is clearly his exit strategy to the very senior World Bank position for which he needs the support of Mbeki, and he indeed meets with Mbeki soon after.

106.17 McCarthy asked Ngcuka what implications this had for the Zuma prosecution. He asked him whether he was to leave the prosecution and “let other people deal with it”. Ngcuka emphasised several times during the conversation that he should continue with the prosecution.84

106.18 It is clear from what transpired that McCarthy took Ngcuka’s instructions to heart. At 16h06 on the same day (Wednesday 19 December 2007), McCarthy phoned Ngcuka. He reported to him that he wanted “to move on Friday” and that the longer they delayed, the more difficult it would be for them to act.85

106.19 The NPA respondents believe that the above conversations demonstrate that after the Polokwane conference, Ngcuka and others were concerned that Mbeki would be recalled as President, or that other means would be found to frustrate Zuma’s prosecution. Given the haste with which McCarthy moved after the Polokwane conference, and the lengths to which he went to recall the prosecution team from leave, this contention is not unreasonable.86

107 It is apparent from the above that McCarthy’s decisions about the timing of the prosecution were made on the instruction of Ngcuka.

107.1 He first planted the idea about postponing the prosecution after his discussion with Ngcuka on 7 November 2007. He raised it first with Downer on 12 November 2007 and later with Hofmeyr and Mpshe.

107.2 From the detail of McCarthy’s discussions with Ngcuka, it is plain that McCarthy was uneasy about his instructions and kept his channel of communication open in the hope that they may change.

107.3 After Mbeki’s defeat at Polokwane, he checked with Ngcuka what his instructions were. When Ngcuka told him that the prosecution should proceed, he first appeared to do it on his own, but soon contacted Downer and told him to finalise the indictment.

108 McCarthy’s interactions over that period were not limited to Ngcuka. From 19 December 2007 he was in regular contact with former Minister of Intelligence, Ronnie Kasrils. Although the details of their conversations are not known, the timing of their meetings and discussions was significant. Kasrils subsequently confirmed that McCarthy discussed the Zuma prosecution with him, specifically when Zuma should be charged. He denied any improper motive on either his or McCarthy’s part. He also said that he and McCarthy only met once during that time.

109 The record tells a different story. McCarthy and Kasrils met more than once during that period.

109.1 On 14 December 2007 McCarthy telephoned Kasrils and arranged to meet him the following day.87

109.2 On 19 December 2007, the day on which McCarthy told Ngcuka that he hoped to be ready to “move” by the Friday, McCarthy telephoned Kasrils. He arranged for them to meet the following day.88

109.3 On 19 December 2007 McCarthy arranged to meet with Kasrils the following day. He spoke to Kasrils immediately after Ngcuka had told him that the prosecution should continue.89

109.4 On 27 December 2007, the day before the indictment was served on Zuma, McCarthy arranged to meet with Kasrils.

109.5 On 29 December 2007, the day after the indictment was served, McCarthy telephoned Kasrils. They arranged to meet.

Legal framework regulating decisions to prosecute

110 The DA maintains that Mpshe’s decision to discontinue the prosecution is irrational because it was Mpshe and not McCarthy who took the decision to prosecute and who made decisions about the timing of the prosecution. For that reason, it argues that Mpshe could not possibly have believed that McCarthy manipulated the prosecution. It argues that Mpshe gave the instruction to delay the prosecution until after the Polokwane conference.

111 This argument is flawed for two reasons:

111.1 The first is that in law, Mpshe did not have the authority to institute prosecutions. That includes the authority to decide when to institute the prosecution. That authority vested with McCarthy, as head of the DSO;

111.2 As a fact, McCarthy was in charge of the Zuma prosecution. He made all decisions related to the prosecution, including the decision to delay the prosecution.

112 On a proper interpretation of s 179 of the Constitution, read with sections 20 and 22 of the National Prosecuting Authority Act 32 of 1998 (NPA Act), the primary responsibility to institute prosecutions is vested in the DPPs and not in the NDPP. That means that if the NDPP were to purport to take a decision to institute prosecutions, as the DA contends he did, that decision would be invalid.

113 Section 179(1) of the Constitution creates a single NPA consisting of the NDPP and the DPPs.

113.1 Section 179(2) vests the NPA with the power to institute criminal proceedings on behalf of the state and perform all functions incidental to it.

113.2 Section 179(3)(b) provides that national legislation must ensure that the DPPs are responsible for prosecutions within their areas of jurisdiction.

113.3 Section 179(5) gives the NDPP limited powers of control over the DPPs, including powers to prescribe prosecution policy, issue policy directives, intervene in on-going prosecutions when prosecution policy or directives are not followed, and review decisions to prosecute or not to prosecute. This power is limited to intervening in decisions to prosecute where the NPA’s prosecution policy has not been adhered to and to reviewing decisions to prosecute where the decision has already been taken.

114 Section 20(1) of the NPA Act echoes section 179(2) of the Constitution by saying that the power to prosecute vests in the NPA.

115 Section 22, which sets out the powers of the NDPP, provides:

115.1 The NDPP has authority over the exercise of all powers conferred on or assigned to any member of the prosecuting authority in law.

115.2 In particular, the NDPP is required to do the following:

115.2.1 Determine prosecution policy and issue policy directives as contemplated by section 21;

115.2.2 Intervene in any prosecution process when policy directives are not complied with; and

115.2.3 Review a decision to prosecute or not to prosecute after consulting the relevant DPP and after taking representations from the accused person, the complainant and any other person or party whom the NDPP considers relevant.

116 In terms of section 24(1)(a), the power to institute criminal proceedings vests in DPPs. That vests all DPPs with the power to prosecute in their areas of jurisdiction. Section 20(3) however provides that they exercise this power “subject to the control and directions” of the NDPP. Properly interpreted, this means that DPPs exercise the authority to institute prosecutions subject only to the policy directives of the NDPP. It does not mean that the NDPP has the power to overrule decisions of DPPs.

117 To provide for the Office for Serious Economic Offences, the Act provided for Investigating Directorates headed by that Investigating Directors who had the power to initiate prosecutions in matters that fell within their jurisdiction. The only requirement was that they did so after consulting with the DPP in whose geographical jurisdiction the matter fell. This requirement was for logistical purposes only as they needed to set down cases in the courts under the control of the DPP. It ensured proper coordination between the OSEO and the DPP. OSEO became the Investigating Directorate: Serious Economic Offences (“IDSEO”). McCarthy was later appointed as its head.

118 IDSEO was absorbed into the DSO when it was established. Section 7(1)(a) of the NPA Act provided for a permanent Investigating Director to be established in the office of the NDPP with authority to do the following:

118.1 investigate and carry out any functions incidental to investigations, gather,

118.2 gather, keep and analyse information; and

118.3 where appropriate, institute criminal proceedings and carry out any necessary functions incidental to instituting criminal proceedings.

119 Section 7(3) made provision for the appointment of the head of the DSO who is a DNDPP. Section 7(4)(a)(a) of the NPA Act provided for the head of the DSO to be supported in his functions by one or more Investigating Directors or Deputy Directors. In terms of section 24(2) of the NPA Act, both the head of the DSO, as well as the Investigating Directors appointed to assist him, were given the power to institute criminal proceedings.

120 At the time of the Zuma prosecution, two people in the DSO had the necessary authority to institute the prosecution. The first was McCarthy, the head of the DSO. The second was the Investigating Director formally responsible for the prosecution. From about 2006, this was Mngwengwe,

Mpshe had no power to make the decision to prosecute Zuma, nor did he purport to do so. His authority to make decisions about the prosecution was limited:

121.1 Under s 2(4) of the Prevention of Organised Crime Act 121 of 1998 (POCA), only Mpshe could authorise the inclusion of racketeering offences in the final indictment. In this case the prosecuting team’s first application under s 2(4) of POCA was submitted on 13 November 2007. The final draft was submitted on 20 November 2007.90

121.2 Only Mpshe could authorise that the proceedings be centralised in one jurisdiction in terms of s 111 of the Criminal Procedure Act 51 of 1977 read with s 22(3) of the NPA Act

122 These two decisions, while related to the prosecution, are not decisions to prosecute within the scope of s 24(1)(a) of the NPA Act. They arise only once a decision to prosecute has already been made.

123 At the time that the 2007 decision was made, Mpshe and the NPA’s top management structure was acutely aware that Mpshe had no authority to decide whether to prosecute or not to prosecute. Both his predecessors had purported to make decisions about whether or not to prosecute Zuma.91

124 The policy requirement that provided for the NDPP to be briefed on high profile cases had been confused with the need for the NDPP’s concurrence in high profile cases. This resulted in what has been termed “corporate” decision- making. It is a term internal to the NPA. It is used to describe the consultation process that took place between the prosecuting team and Mpshe and the Deputies. The process sought to ensure the buy-in and endorsement of the

NDPP. It could not give the NDPP a power to make decisions which, in law, he does not have.92

125 The DA submits that the NPA respondents are wrong in law. They point out that both the SCA and the CC have accepted that the NDPP may take a decision to institute a prosecution.93

126 They also point to the NPA’s own pleadings in the matter of State v Jacob Gedhleyihlekisa Zuma and others: CC 273/07 (8652/08). They argue that on at least two previous occasions, Mpshe, Hofmeyr and various other members of the NPA confirmed under oath that Mpshe was responsible, or at least partially responsible for taking the decision to reinstate the charges against Zuma.94

127 In his supplementary confirmatory affidavit, Mpshe points out that in the papers relied on by the applicant, one of which is an affidavit by Senior Special Investigator, Johan Du Plooy in State v Zuma and others: CC 273/07 (8652/08), the process used to describe the decision to prosecute Zuma is ambiguous. For example:95

127.1 In paragraph 91 (pp301 – 302) he records that the “process of drafting, consultation and assessment was completed by 11 December 2007 whereupon Mr Mpshe and Mr McCarthy considered the matter as a whole with a view to taking a decision on prosecution.”

127.2 In paragraph 93 (p302) he records: “The NPA was also satisfied that the prosecution team’s theory and the manner in which the offences were committed amounted to racketeering in contravention of section 2(1)(e) of POCA was justified by the available evidence. Mr Mpshe accordingly issued the instruction to the prosecution team to reinstitute the charges without delay.”

127.3 In paragraph 94 (pp302 – 303) he records: “On Friday 28 December 2007 the NPA instituted a prosecution of the applicant and the Thint companies by serving on them a summons, an indictment and certain ancillary documents”.

128 The description of and terminology used to describe the decision making process was inconsistent. Even the affidavit relied on by the applicant in what it refers to as the Baloyi answering affidavit in the s 179 case provides a different version. That version is that on 27 December 2007 the NPA again decided to prosecute Mr Zuma, the decision having been taken by the current acting NDPP, Mr Mpshe and Mr McCarthy.

129 Mpshe also explained the circumstances under which he signed the confirmatory affidavit. He explained:

129.1 By the time the 2007 decision was imminent, the NPA’s top management agreed that McCarthy had the necessary authority to make decisions about the Zuma prosecution. McCarthy was the head of the DSO. He was also an ID. He had the power to overrule Mngwengwe, the ID who signed the indictments.96 He was also the senior manager in charge of the case.

129.2 The prosecution team appeared not to understand the legal position. The first draft of the s 33 report to the Minister, drafted after the meeting of 29 November 2007, reflected that the NDPP had taken the decision to prosecute. That formulation was corrected to reflect that the ID took the decision in consultation with the NDPP;97

129.3 After Zuma was charged in December 2007, he brought an application for a permanent stay of his prosecution (the s 179(5) application). The prosecution team prepared the NPA’s draft response to Zuma’s application. They did not accurately reflect the factual position as to who took the decision. Consequently the NPA sought counsel’s advice on the correct interpretation of s 179(3)(b) of the Constitution. He advised that the most likely interpretation was that the authority to prosecute was vested in DPPs and not the NDPP. He suggested that all references to the NDPP having made the decision be removed.98

130 Mpshe confirms that the NPA’s court papers were amended in line with counsel’s instructions. It appears that this was done except for paragraph 94 of du Plooy’s affidavit which retained the incorrect formulation.99

The Constitutional guarantee of prosecutorial independence

The NDPP’s power of review

131 The power of review is regulated by s 179(5)(d). Under s 179(5)(c) the NDPP may review a decision to prosecute or not to prosecute. This means that the NDPP may overturn and reverse a decision of the DPP if he/she complies with the prescribed procedure. The prescribed procedure is the following. The NDPP must take the decision after consulting with the “the relevant DPP” and after taking representations from the accused person, the complainant, and any other person or party whom the National Director considers to be relevant.

132 The provisions of s 179(5)(d) are echoed in s 22(2)(c) of the NPA Act. Under s 22(2)(c), the NDPP may review a decision to prosecute or not to prosecute, after consulting the relevant Director and after taking representations, within the period specified by the National Director, of the accused person, the complainant and any other person or party whom the National Director considers to be relevant.

133 The NDPP’s power of review in terms of s 179(5)(d) read with s 22(2)(c) of the NPA Act is a power to review a decision to prosecute or not to prosecute in the sense that the NDPP may overturn or change a DPP’s decision.

134 The consideration in this case is the circumstances under which a decision by an NDPP to review or overturn a decision to charge can be made. In other words, when is such a decision rational.

135 The DA maintains that even if the Court finds that McCarthy did manipulate the timing of the prosecution for ulterior purposes, Mpshe’s reliance on abuse of process was flawed. It relies on the dictum of Harms DP in NDPP v Zuma100 for this contention. That case dealt established when a prosecution is wrongful. The issue for Harms DP was whether an improper motive rendered a prosecution wrongful. Harms DP found that it did not.

136 The applicant’s reliance on NDPP v Zuma is misplaced. This case is not concerned with whether or not the prosecution was wrongful. Mpshe (and the NPA) have never contended that the decision to prosecute Zuma was wrongful or that reasonable and probable grounds for prosecuting Zuma were absent. To the contrary, when Mpshe announced his decision to discontinue the prosecution he emphasised that the merits of the merits of the case against Zuma was not in issue.

137 Mpshe stressed that his decision to discontinue the prosecution was taken for policy reasons. From his statement it is plain that the policy consideration that was uppermost in his mind was the constitutional requirement for the NPA to be independent and to be seen to be independent. The only way to restore the independence of the NPA was to discontinue the prosecution.

138 More recently, our courts have recognised that a prosecution may be discontinued on policy grounds when public interest demands this.101 This means that while a prosecution should normally follow if the merits of a case are good, it does not follow that the merits of a particular case are determinative in every case.

139 The independence of the NPA is vital to the effective functioning of our constitutional democracy. Section 179(2) of the Constitution authorises the prosecuting authority with “the power to institute criminal proceedings on behalf of the state”. Section 179(4) provides that national legislation must ensure that the prosecuting authority exercises its functions “without fear, favour or prejudice”. Part 3, clause 6 of the Prosecution Policy Directives states that prosecutors must perform their functions without fear, favour or prejudice.

140 The principle of prosecutorial independence is echoed in the NPA Act. Section 32(1)(a) recognises and entrenches the principle of prosecutorial independence. It provides that every member of the prosecuting authority shall serve impartially and perform their functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.

141 Section 32(1)(b) provides that nobody and particularly no organ of state or member or employee of an organ of state, “shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof” in the performance of their functions.

142 Under section 32(1)(c), the NDPP, Deputy National Directors (deputies), Directors of Public Prosecutions (DPPs) and all other prosecutors must take an oath or affirmation before taking office committing themselves to “uphold and protect the Constitution and the fundamental rights entrenched therein and enforce the Law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the Law.”

143 The Constitutional Court has held that these provisions create “a constitutional guarantee of independence”.102

144 In Bonugli, the High Court held that prosecutorial independence means that justice must not only be done but must also be seen to be done. In other words, s 179(4) requires not only that the prosecution act without fear, favour or prejudice, but also that they be seen to do so.103

145 In Carmichele the Constitutional Court held that prosecutors have always owed a duty to carry out their public functions independently and in the interests of the public. 104 In Pikoli105 the court held that for the NDPP to be fit and proper to hold office, he had to have the necessary experience, conscientiousness and integrity to be entrusted with the responsibilities of office and had to demonstrate prosecutorial independence without fear, favour or prejudice.106

146 Mpshe felt that McCarthy’s conduct subverted the constitutional guarantee of prosecutorial independence. Although he acknowledged the merits of the case against Zuma, for him restoring the institutional integrity of the NPA was paramount. The objective he sought was to ensure that the abuse that occurred in the Zuma prosecution did not happen again.107

147 In these circumstances, and on the test established in Pharmaceutical Manufacturers and reaffirmed by Yacoob ADCJ in Democratic Alliance, Mpshe’s decision is rational.

Procedural requirements of s 179(5)

148 In terms of s 179(5)(d) of the Constitution, an NDPP may review a decision of a DPP to institute a prosecution on condition that he/she consults with the relevant DPP, and after taking representations from the accused person, the complainant and any other person or party whom the NDPP feels is relevant.

149 The purpose of the provision requiring the NDPP to consult with and take representations from various parties is to ensure that before he takes the decision he has the necessary information before him to ensure that his decision is informed and not arbitrary, in other words, that his decision is rational. The procedural requirements of s 179(5) are designed to ensure that.

150 Before Mpshe decided to stop the Zuma prosecution, he consulted with his deputies, including Mzinyathi, who was acting head of the DSO at the time. He also consulted with Thanda Mngwengwe, the ID formally responsible for the Zuma prosecution and the person who had signed the indictment. Mpshe asked the prosecution team to comment on Zuma’s representations.

151 The record includes notes taken by Hofmeyr, Mzinyathi, Downer and Mngwengwe where Zuma’s representations were discussed and where Mpshe sought advice from his deputies and the prosecution team on how to respond to the representations. The record also includes memoranda prepared by the prosecution team with recommendations on how to respond to Zuma’s representations.

152 The DA claims that Mpshe did not comply with the procedural requirements of s 179(5). The basis on which they say this and the NPA respondents’ response is dealt with below.

Alleged Failure to consult with the relevant DPP

153 As far as the DA is concerned, in order to comply with this requirement, Mpshe would have had to consult with the DPP in whose geographical jurisdiction the prosecution arose. That person was Shamila Batohi.

154 Under s 24(1) of the NPA Act, the primary responsibility to institute proceedings is vested in DPPs.108 It follows that when the NDPP reviews a decision taken by a particular DPP to prosecute, he/she is required to consult with them. The purpose is to get their comment.

155 We have already explained that in the case of the DSO, the authority to institute criminal proceedings vested in the head of the DSO and the ID.109 At the time of the 2007 decision to prosecute Zuma, that authority vested in two people. The first was McCarthy. In terms of s 7(3) of the NPA Act, McCarthy was both the head of the DSO and a DNDPP with the powers of an ID. Mngwengwe was appointed as ID in the DSO. Under s 24(2) of the NPA Act, they had the power to institute criminal proceedings.

156 It follows that when Mpshe decided to review the Zuma prosecution, he consulted with, amongst others, the two people in the DSO who, at the time, were responsible for the Zuma prosecution. The first was Mzinyathi. He was the acting head of the DSO. The second was Mngwengwe, the ID who signed the indictment. McCarthy was no longer the head of the DSO. Had he been, Mpshe would have consulted with him.

157 The record reflects that both Mzinyathi and Mngwengwe participated in meetings with Mpshe, the deputies and the prosecuting team where Zuma’s representations were considered. Both Mzinyathi and Mngwengwe took notes. Their notes form part of the record.110

158 Both Mzinyathi and Mngwengwe were able to participate in meetings. They were able to make input about the representations. The fact that they were part of broader meetings is irrelevant.

159 For the DA to suggest that Mpshe should have consulted with Batohi instead of Mzinyathi and Mngwengwe undermines the purpose of s 179(5)(d) which is to consult with the person who authorised the prosecution.

Alleged failure to seek representations from the accused

160 The DA maintains that although Zuma made representations to Mpshe to discontinue his prosecution, they were not made in terms of s 179(5)(d).

161 They say so because Hulley, in an affidavit dated 14 August 2009, stated that Zuma’s representations were not made in terms of s 179(5)(d) and were not intended to be presented in terms of that process.

162 The fact that Hulley or Zuma dispute that the representations were made in terms of s 179(5)(d) is irrelevant.

163 The only mechanism available to Mpshe to review a decision of a DPP or an ID is in terms of s 179(5)(d). The Constitution and the NPA Act do not provide another remedy.

No representations from the complainant

164 The DA maintains that Mpshe did not give any consideration to who initiated the complaint against Zuma and did not make any attempt to contact that person.

165 In most cases, the complainant in a criminal matter is also the victim of the crime. The purpose of requiring the complainant is to ensure that the voices of victims of crime are heard. It allows the NDPP to balance the nature and seriousness of an offence with the interests of the victim and the broader community.111

166 The Zuma prosecution is, within the scope of s 179(5)(d), a victimless crime. Moreover, the source of the complaint against Zuma is not as clear as the DA suggests.

167 The DA speculates that the complainant was Patricia de Lille. It does so on the basis of an internal memorandum from Downer on 3 March 2009 in which Downer speculates that Patricia de Lille and Richard Young were complainants.112

168 The DA is correct that Mpshe did not call for representations from Patricia de Lille. We submit that there was no requirement for him to do so.

169 The background to the Zuma prosecution is set out in detail in SSI Du Plooy’s affidavit (Rule 53 record D226 –D 399) and in the NPA respondents’ answering affidavit (Pleadings pp 191 – 206).

170 It began in the context of allegations of corruption against Zuma arising out of the Defence arms procurement package of 1999. It culminated in Pikoli’s decision in 2005 to prosecute Zuma. That decision was triggered by Shaik’s conviction, and not by any formal complaint laid against Zuma.113

171 When Msimang J struck the matter from the roll on 20 September 2006, the effect was that there was no longer any prosecution. Consequently, the 2007 decision to charge Zuma was a fresh decision. That decision was not taken pursuant to any complaint laid against Zuma. The trigger for that decision was the SCA ruling on 7 November which upheld the lawfulness of the search

warrants conducted on 18 August 2005.114

172 Given the complex history of this matter, even if it were possible to identify the original complaint, which it is not, the 2007 decision to prosecute Zuma did not arise as a consequence of any formal complaint or charge being laid against Zuma.

Alleged failure to consult with relevant parties/consultation with irrelevant parties

173 The DA takes issue with the fact that Mpshe consulted with his deputies before he took the decision to discontinue the prosecution. In particular, the DA takes issue with the fact that Hofmeyr participated in consultations with Mpshe and his deputies. They argue that Hofmeyr was not objective. The implication is that he may have influenced the process unduly because he had strong views

on the matter.115

174 Nothing prohibited Mpshe from consulting with his deputies. Mpshe was entitled to ask for advice from his senior managers, which he did. He decided to have regular deputies meetings to discuss operational issues and to ensure that for important decisions he could draw on the collective wisdom of the top leadership of the NPA. In this case, he knew that he was bound to face criticism, whatever he decided. He wanted to make sure that he had the support of his deputies.116

175 The DA’s claim that Hofmeyr was not objective or that he may have influenced Mpshe unduly is speculative and without merit. It is also not supported by the record. There is no evidence that Hofmeyr dominated the discussions. Mzinyathi and Ramaite participated equally. They debated what to do. Ultimately they assured Mpshe that they would support his decision.117

176 The DA also says that Mpshe did not apply his mind to whether the prosecuting team was a relevant party. The DA appears to suggest that Mpshe did not consult with the prosecuting team. This is not correct.

176.1 The prosecuting team were asked to respond to Zuma’s representations. They submitted memoranda in response to Zuma’s representations. The fact that they did not support Mpshe’s final decision is a matter of public record. Mpshe said as much at his press conference.118

176.2 The prosecution team attended meetings with Mpshe and the deputies on 18 March 2009. They presented their responses to Zuma’s representations. Their memorandum identified various shortcomings with Zuma’s representations.119

176.3 On instruction of Mpshe, members of the prosecution team consulted with Ngcuka on two occasions (20 and 24 March 2009). They reported on the outcome to Mpshe on 30 March 2009 during a meeting with Mpshe and the deputies.120

176.4 Downer’s notes of meetings with Mpshe and the deputies are included in the record.

Conclusion

177 In summary and in conclusion:

177.1 In our law, decisions to prosecute or not to prosecute are subject to review on narrow grounds of legality, which includes the ground of rationality.

177.2 A decision whether or not to prosecute is polycentric in nature. It includes considerations of public interest and policy.

177.3 The independence of the NPA is vital to the effective functioning of our constitutional democracy. Section 179(4) of the Constitution provides that national legislation must ensure that the prosecuting authority exercises its functions “without fear, favour or prejudice”. The principle of prosecutorial independence is replicated in s 32(1) of the NPA Act. It provides that every member of the prosecuting authority shall serve impartially and perform their functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.

177.4 McCarthy’s manipulated the timing of the Zuma prosecution for ulterior purposes. He delayed the prosecution because Ngcuka and others told him to do so. He did not delay the prosecution for any reasons related to the prosecution, such as unavailability of witnesses or the need for further investigation;

177.5 When Mpshe discontinued the prosecution he did so in the interests of restoring the institutional integrity of the NPA in line with the Constitutional and statutory requirements of independence.

177.6 In these circumstances, his decision was rational and should be upheld.

177.7 We accordingly submit that the application should be dismissed.

PAUL KENNEDY SC

HAMILTON MAENETJE SC

KERENSA MILLARD

1st and 2nd respondents’ counsel

2 July 2015

Footnotes:

1 The NPA’s top management structure included Mpshe and his deputies. The deputies at the time were Dr Silas Ramaite (DNDPP responsible for specialized units), Willie Hofmeyr (DNDPP and head of the Asset Forfeiture Unit and also head of the Special Investigating Unit), Sibongile Mzinyathi (acting DNDPP and acting head of the DSO)

2 NPA respondents’ AA, p246 para266

3 Rule 53 record B152 – B152

4 National Director of Public Prosecutions and others v Freedom Under Law 2014 (4) SA 298 (SCA)

5 Applicant’s HOA, p20 – 21para 66 – 70

The DA also concedes that the question whether Mpshe’s decision amounted to administrative action or not need not detain this Court.

6 Applicant’s HOA, p20 – 21 para 66 - 70

7 National Director of Public Prosecutions and other v Freedom Under Law, op cit at [25]

8 Pharmaceutical Manufacturers Association of South Africa: In re President of the Republic of South Africa 2000 (2) SA 674 (CC) at [90]

9 Democratic Alliance v President of the Republic of South Africa 2012 (12) BCLR 1297 (CC) at [32]

10 Albutt v Centre for the Study of Violence and Reconciliation and others 2010 (3) SA 293 (CC) at para 51

11 Rule 53 record, B152 under the heading: “The need for further investigation”.

12 See rule 53 record,B27/19; B57/16a – m; B27/20; B57/17

13 See rule 53 record, Record, B57/16a – m which is a text exchange between McCarthy and Pienaar on 16 December 2007. McCarthy told Pienaar that he had been asked to give “Ouboet” and “Oujan” a break. “Ouboet” is a reference to former police commissioner, Jackie Selebi. At the time he was facing prosecution for fraud. “Oujan” is a reference to Zuma.

See also rule 53 record, B149/26; B153/1 - 11 which is a conversation between McCarthy and Davids on 16 December 2007. Davids relayed the details of a discussion that had taken place between Hofmeyr and Ngcuka in Port Elizabeth the day before. From this conversation it is clear that McCarthy believed that it was his role to use his position to actively support Mbeki. This is directly in conflict with the oath he took to remain impartial and the constitutional obligation on the NPA to remain independent.

14 NPA respondents’ AA ,p178 para 40 - 41

15 Rule 53 record, B145

16 Rule 53 record, B152

17 NPA respondents’ AA, p258 - 268

18 Applicant’s HOA p 22.

19 Record, Du Plooy affidavit, D233/12

As is recorded by Du Plooy, s28(13) of the National Prosecuting Authority Act 32 of 1998 empowered the Investigating Director in the Office for Serious Economic Offences to hear evidence in order to enable him to determine if there were reasonable grounds to conduct an investigation in terms of s28(1)(a) of the NPA Act. The preparatory investigation related to allegations of corruption and/or fraud in connection with negotiations and contracts concluded by the Department of Defence in respect of the purchase of corvettes, submarines, light utility helicopters, maritime helicopters, lead in fighter trainers and advanced light fighter aircraft. On 24 August 2001, the ID instituted an investigation in terms of s28(1)(a) of the NPA Act.

20 Rule 53 record, Du Plooy affidavit, D239 – D41/25 – 30

Zuma maintained at the time that Ngcuka’s announcement was malicious and intended to harm his political chances of becoming the next President of the ANC and of the country. The Public Protector, Lawrence Mushwana, investigated his claims. His report dated 28 May 2004 criticised Ngcuka. In his answering affidavit, Zuma alleges that he was offered R20 million to bow out of politics in exchange for Ngcuka’s decision not to prosecute him.

21 Rule 53 record, Du Plooy affidavit, D251/37 & D253/39 – 40.1

22 Rule 53 record, Du Plooy affidavit, D280/13

The NPA respondents contend that Pikoli did not have the legal authority to make decisions about whether to prosecute Zuma or not.

23 Rule 53 Record, Du Plooy affidavit, Rule 53 record, D296/81

24 NDPP and Others v Zuma and another [2008] 1 All SA 197 (SCA) and Thint (Pty) Ltd v NDPP and others [2008] 1 All SA 229 (SCA)

25 Zuma’s application for leave to appeal to the CC had no bearing on the Zuma prosecution. Unless ordered otherwise by the CC, the NPA was not precluded from using the documents obtained during the search and seizure operations.

26 NPA respondents’ AA, p 215 para 168

27 At various meetings held between Mpshe and the prosecution team, including McCarthy, McCarthy never formally raised the question of delaying the prosecution. See for example record of meetings of 1 November 2007 (rule 53 record at D301 para 90 and D56); 12 November 207 (rule 53 record annexure WH 37 and WH 38 at p357 – 358); 14 November 2007 (rule 53 record D56); 29 November 2007 (rule 53 record D52 and D57/11).

28 Rule 53 record, Downer email to Andrew Breitenbach on 29 March 2009; record D56

29 Rule 53 record, Downer email to Andrew Breitenbach on 29 March 2009; record D56

30 On various occasions Mpshe stressed that decisions about the Zuma prosecution should be made by the prosecution team and McCarthy. See rule 53 record, D56; NPA respondents’ AA, p207, para 135.

See in addition, rule 53 record, D57/12

31 Prevention of Organised Crime Act 121 of 1998

32 NPA respondents’ AA, p207 para 136

33 Record, Du Plooy affidavit, D301 - D302/92

34 The Policy Directives in force at the time were amended and approved on 30 November 2006

35 NPA respondents’ AA, p211, para 153

NPA respondents’ AA, annexure WH37 at p 357 and WH53 at p 373

36 Rule 53 record, D56/3 - 4

37 Rule 53 record, D371 to D400.

38 Rule 53 record, Downer email to Andrew Breitenbach, D56/4

39 Rule 53 record, Downer email to Andrew Breitenbach, D56

40 Rule 53 record, Downer email to Andrew Breitenbach on 29 March 2009, D57/6

41 Rule 53 record, D57/9

See Downer confirmatory affidavit, para 35 - 36

42 NPA respondents’ AA, annexure WH45 at p365 and WH55 at p 375

43 Rule 53 record, email from Downer to Andrew Breitenbach, 29 March 2009, D57/10

44 NPA respondents’ AA, annexure WH46 – WH47 at p 366 - 367 and WH55 at p375

45 NPA respondents’ AA, annexure WH48 - WH50 at p368 - 370; and WH56 - WH57 at p p376 - 378

46 Rule 53 record, D52 and D57/11

47 Rule 53 record, D366

48 Rule 53 record, D46 and D57 – D58/15

49 Rule 53 record, D58

50 Rule 53 record, D48

51 Rule 53 record, Memorandum from prosecution team to Mpshe dated 6 December 2012, D209 – D212

52 Rule 53 record, Memorandum from prosecution team to Mpshe, 6 December 2012, D 209 – D 212

53 Applicant’s HOA, p28/92

54 Rule 53 record, Downer handwritten record of discussion of 12 November 2007, D45

55 Rule 53 record, email from Downer to Andrew Breitenbach, 29 March 2009, D57/10

56 NPA respondents’ AA, p 214 para 164

57 NPA respondents’ AA, p 214 - 215 para 165 - 166

58 Insert reference to Mpshe’s supplementary affidavit

59 Mpshe’s supplementary confirmatory affidavit, p 3 para 11

60 Mpshe’s supplementary confirmatory affidavit, p 6 para 25

61 Plascon Evans Paints (Pty) Ltd v Van Riebeck Paints (Pty) Ltd 1984 (3 SA 623

62 Rule 53 record, B34/34

63 NPA respondents’ AA p228 para 208 Rule 53 record, B36 – 37/26.1 – 26.11

See also rule 53 record, B37/27In a later discussion with the Minister on 29 December 2007, McCarthy told her that the decision to charge Zuma had been taken on 19 December 2007.

64 On 29 December 2007, the day after the indictment was served on Zuma, McCarthy and the Minister had a discussion. The Minister questioned the timing of the decision. Significantly, McCarthy told the Minister that the decision had been taken already on 19 December 2007. Clearly, in McCarthy’s mind, he was the one who took he decision to prosecute.

65 NPA respondents’ AA p230 para216

66 NPA respondents’ AA p230 para 217

67 Rule 53 record, Downer diary entry 21 December 2007, D54

68 Rule 53 record, D59

NPA respondents’ AA p231 para 221 - 222

69 NPA respondents’ AA, p231,para 222

70 NPA respondents’ AA, p232 para 223

71 NPA respondents’ AA, p232 para 224 - 226

72 Rule 53 record, D436/2

73 Annexure WH56 at p376

74 Rule 53 record D437/3

75 Rule 53 record, B148/9

76 Rule 53 record B148/10(u)

McCarthy told Ngcuka: “If we hold back, it will be because clever people like you and others are saying to us that the country needs cool heads.”

McCarthy was acting NDPP at the time. He acted in Mpshe’s place for the duration of Mpshe’s leave.

77 Rule 53 record, B18/18.f

78 Rule 53 record B21/8.b

79 Rule 53 record B21/8.l and B21/10

80 Rule 53 record B22/16.5

81 Rule 53 record, B30/8-9

82 Rule 53 record B34/34

83 Rule 53 record, B34

84 Rule 53 record, B36/48

85 Rule 53 record, B36 – 37/26.1 - 26.11

Significantly, after this conversation with Ngcuka, McCarthy contacted Downer and told him to finalise the indictment.

86 NPA respondents’ AA p235, para 239

87 NPA respondents’ AA, p226 para 200

88 NPA respondents’ AA, p229 para 213

89 Annexure WH59, pleadings p379

90 Rule 53 record, D56/3 - 4; D371 – D400.

91 See Mpshe’s supplementary confirmatory affidavit, p11 – 12, paras 47 – 50 in which he explains that while his predecessors purported to take decisions about whether or not to prosecute Zuma, by the time the 2007 decision was imminent, any confusion as to the correct legal position had been resolved in the minds of the NPA’s top management.

92 See s 33 memorandum drafted by prosecuting team dated 3 December 2007 which records: “The prosecution team gave a final briefing to the Acting DPP and the Deputy and Acting Deputy NDPPs during a meeting on 29 November 2007. They confirmed their earlier recommendations concerning the prosecution of Zuma and the two Thint companies.

In accordance with all of the above, the Investigating Director, Directorate of Special Operations, in consultation with the Head: DSO, me and the other Deputy and Acting Deputy NDPPs and the prosecuting and investigating team, has decided to institute prosecutions against Zuma and the two Thint companies on the charges indicated in the attached indictment.”

93 Applicant’s HOA, p40 para 128.2

94 See applicant’s HOA p36 para 118

95 Mpshe’s supplementary confirmatory affidavit, p 8 – 9, para 34

96 Mpshe supplementary confirmatory affidavit, p10 para 39

Significantly, on 19 December 2007, when McCarthy ultimately made the decision to serve the indictment on Zuma, he instructed Mngwengwe that he would have to sign the indictment.

97 Mpshe supplementary confirmatory affidavit, p11 - 12 para 48

98 Mpshe’s supplementary confirmatory affidavit, p12 para 50

99 Mpshe’s supplementary confirmatory affidavit, p12 para 51

100 NDPP v Zuma 2009 (4) BCLR 393 (SCA)

101 Freedom Under Law v NDPP 2014 (1) SA 254 (GNP) at para [113]

102 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the RSA 1996 (4) SA 744 (CC) para 146

103 Bonugli and Another v Deputy NDPP and Others, unreported judgment of the Pretoria High Court delivered on 1 February 2008 in case 17709/2006

104 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) at 72

105 Pikoli v President of the Republic of South Africa and others 2010 (1) SA 400 (GNP)

106 Ibid at 405F - 406H

107 Rule53 record, B152

108 NPA respondents’ AA, p186 para 63

109 In the case of OSEO, the NPA Act provided that IDs had the power to initiate prosecutions in matters that fell within the jurisdiction of OSEO. The only requirement was that they did so after consulting with the DPP in whose geographical jurisdiction the matter fell.

OSEO was renamed the Investigating Directorate: Serious Economic Offences (IDSEO). In terms of s 7(1)(a) of the NPA Act, the DSO was established as a permanent ID in the office of the NDPP with the authority to, inter alia, institute criminal proceedings and carry out any necessary functions incidental to instituting criminal proceedings.

S 7(3) made provision for the appointment of the head of the DSO who was at the level of DNDPP. S 7(4)(a)(a) provided for the head of the DSO to be supported in his functions by one or more IDs. In terms of s 24(2) of the NPA Act, both the head of the DSO as well as the IDs appointed to assist him, were given the power to institute criminal proceedings.

110 Mngwengwe’s notes are at rule 53 record, C169 – C 188. From his notes, he participated in meetings about Zuma’s representations on 30 March 2009 (C170 – C173), 1 April 2009 (C173 – C175) and on 6 April 2009 (C170).

Mzinyathi’s notes are at rule 53 record B67 – B74 and B154. He participated in meetings with Hulley and Hofmeyr on 6, 9 and 16 March 2009; B64 – B66. Mzinyathi was also present at meetings with Mpshe and others to consider Zuma’s representations on 18 March 2009, 30 March 2009, 31 March 2009, 1 April 2009 and 6 April 2009

111 Clause 3.c of the NPA’s prosecution policy states that there is no rule that all provable cases must be prosecuted. When considering whether it is in the public interest to prosecute, prosecutors must consider the following relevant factors; [1] the nature and seriousness of an offence; [2] the interests of the victim and the broader community; [3] the circumstances of the offender

112 DA HOA p55/166 - 167

113 NPA respondents’ AA p 198 – 199 paras 103 - 105

114 NPA respondents’ AA, p 206 para 133

115 DA HOA p58/174 - 175

116 NPA respondents’ AA, p247 para 270

117 NPA respondents’ AA, p247 – 248 paras 270 - 274

118 Rule 53 record, B152

See prosecution memoranda to Mpshe at rule 53 record C 28 – C 33 (20 March 2009); D 209 – D 212 (6 December 2012)

119 Prosecution memorandum to Mpshe 20 March, C28 – C33

120 NPA respondents’ AA, p 243 para 257