IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No.: 573/08
In the matter between:
THABO MVUYELWA MBEKI 1st Applicant
THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA 2nd Applicant
and
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 1st Respondent
JACOB GEDLEYIHLEKISA ZUMA 2nd Respondent
In re: NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Appellant
and
JACOB GEDLEYIHLEKISA ZUMA Respondent
AFFIDAVIT IN SUPPORT OF THE APPLICATION TO INTERVENE
I, the undersigned,
THABO MVUYELWA MBEKI
do hereby make oath and state that:
1. The facts herein are within my personal knowledge and belief, unless the contrary is stated or the context indicates otherwise, and are true and correct.
THE APPLICANTS
2. I am the First Applicant and I bring this application in my personal capacity and in my capacity as former President and head of the National Executive, as well as in the public interest. I was President of the Republic of South Africa at the time that the judgment which forms the subject matter of the appeal noted by the Appellant was delivered by Nicholson J in the Natal Provincial Division ("the judgment").
3. The Second Applicant is the Government of the Republic of South Africa, c/o the State Attorney, Johannesburg, c/o the State Attorney, Bloemfontein, 11th Floor, Fedsure Building, 49 Maitland Street, Bloemfontein.
4. Insofar as I make legal submissions I make them on the advice of my legal representatives, which advice I believe to be correct.
THE RESPONDENTS
5. The First Respondent is the National Director of Public Prosecutions who is the Appellant in the appeal referred to above, with his address at VGM Building, 123 Westlake Avenue, Weavind Park, Silverton, Pretoria, c/o the State Attorney, Bloemfontein, 11th Floor, Fedsure Building, 49 Maitland Street, Bloemfontein.
6. The Second Respondent is Jacob Gedleyihlekisa Zuma who is the Respondent in the appeal referred to above, with his address at 8 Epping Road, Forest Town, Johannesburg, c/o Hulley & Associates 2nd Floor Momentum House, Cnr Prince Alfred Street and Ordinance Road, Durban.
THE NATURE AND PURPOSE OF THIS APPLICATION
7. This is an application by the First and Second Applicants to be joined or granted leave to intervene in the appeal proceedings and to allow them, in particular, to make written and oral submissions regarding Mr. Justice Nicholson's judgment or findings that there was political interference by me as President and in my other capacities, and by members and former members of the National Executive (i.e. Minister Mabandla and former Minister Maduna respectively) in the First Respondent's decision to prosecute the Second Respondent (the impugned findings).
8. I respectfully submit that both the Second Applicant and I, in my aforementioned capacities, have a direct and substantial interest in the subject matter of the appeal, in particular, that part of the judgment or findings appealed against, holding that there was political interference by me, the National Executive, and or present or former members of the National Executive (i.e. with specific reference to Minister Mabandla and former Minister Maduna respectively) in the decision to prosecute the Second Respondent.
9. I am advised and I respectfully submit on the basis of such advice, that this Honourable Court has the inherent power and a duty to grant us leave to intervene to ensure that we, who have a direct and substantial interest in the subject matter of the appeal as stated above, and whose rights have, or may be affected by any judgment, including on appeal, are before the Court and that our interests are safeguarded.
10. This application to be granted leave to intervene is made on the basis of the law, including the common law, pertaining to joinder and intervention and the provisions of section 38 of the Constitution, read with sections 34 and section 173 thereof.
11. Notwithstanding our direct and substantial interest in the findings made by Nicholson J we were never joined in those proceedings culminating in the judgment. Our non joinder was not due to any fault on our part.
12. Neither I, nor the National Executive was advised of the allegations concerning us prior to the proceedings in the Court a quo.
Furthermore, the Court did not call upon any member or former member of the National Executive (i.e. including Minister Mabandla and former Minister Maduna respectively) or me as former head of the National Executive, to appear before it, nor were we given an opportunity to respond to any allegations of political interference or the impugned findings.
THE FIRST APPLICANT'S APPLICATION TO THE CONSTITUTIONAL COURT
13. The National Executive and I only became aware if the findings relating to us only after the judgment was handed down. Soon after the judgment was delivered, the National Executive gave a clear indication of its desire to appeal the judgment insofar as it concerned the National Executive and the individual Ministers who were referred to therein. The National Executive then took a formal decision to this effect, in principle, on the 18 September 2008, and confirmed this on 19 and 21 September 2008.
14. On instruction from the National Executive, legal advice was sought, which culminated in the launching of the application in the Constitutional Court in September 2008. This application for direct access was brought before the First Respondent brought its application for leave to appeal against the judgment. The latter application was granted on the 22 October 2008.
15. I was not in a position to assume that the National Director would indeed exercise the option of seeking leave to appeal against the judgment, and particularly, would seek leave to appeal to this Court.
16. The First Respondent opposed the application for direct access to the Constitutional Court on the basis that it intended to apply for leave to appeal to this Court against the entire judgment and all the orders of the High Court except those relating to the amicus in the court a quo. The First Respondent in its response submitted, inter alia, that the application for direct access and other relief in the Constitutional Court be postponed pending its appeal to this Court.
17. The Second Respondent also opposed the application for direct access on various grounds and, inter alia, also attempted to defend or justify the impugned findings of Nicholson J.
18. I reiterate that the application for direct access was prompted by the adverse and highly prejudicial impugned findings made against the National Executive, Ministers who had served in the National Executive that I headed (i.e. Minister Mabandla and former Minister Maduna respectively), and against me personally and as President of the Republic of South Africa and head of the National Executive. The findings were made on the basis of untested evidence and in circumstances where we were not joined as parties in violation of the constitutional right of access to the courts and the audi alteram principle.
19. As a consequence of Nicholson J granting leave to appeal on the 22 October 2008, I made submissions to the Constitutional Court requesting that, for reasons of convenience and because of the change in circumstances, the application for direct access in the Constitutional Court be postponed sine die, pending the decision of this Court on the appeal. The Constitutional Court has not yet decided on the matter. The Constitutional Court decided on the 11 November 2008 that having regard to the relevant appeal being prosecuted against the whole judgment before this court, it is not in the interest of justice to grant direct access to the Constitutional Court.
20. I respectfully submit that there is nothing, procedural or otherwise, which bars the Applicants from intervening at this stage in the appeal that is pending before this Honourable Court.
THE INTENDED SUBMISSIONS
21. Nicholson J made a number of findings regarding alleged political interference, some express, some implied, concerning the National Executive as a collective, of me (in all my capacities aforementioned) and of Minister Mabandla and former Minister Maduna respectively. [Judgment paragraphs 158, 170 - 173; 188 - 191; 193 - 196; 197 - 199; 205 - 207; 210 - 213; 214 - 215; 216; 220;]
22. The submissions that the Applicants intend to make are directed at the fact that neither I, nor the National Executive, nor its members that are referred to in the judgment were given a hearing, and to the fact that Nicholson J, in dealing with the issue of alleged political interference, in many respects transgressed the principle of the separation of powers.
23. I submit that it is in the interests of justice and in the public interest that the Second Applicant and I be given the opportunity to make written and oral submissions to this Court with regard to the impugned findings and conclusions relating to the National Executive and its members as recorded in the judgment and in respect of which leave to appeal has been granted by Nicholson J to the First Respondent.
24. I am advised that, subject to the directions of this Honourable Court, we shall be filing our submissions in due course.
25. We accordingly ask for the relief as set out in the Notice of Application to which this affidavit is annexed.
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DEPONENT
10
THUS SIGNED AND SWORN to before me at _______________________ on this the day of NOVEMBER 2008 by the Deponent, he having acknowledged that he knows and understands the contents of this affidavit, that he has no objection to taking the prescribed oath and considers same to be binding on his conscience.
_____________________________
COMMISSIONER OF OATHS
Source: http://www.npa.gov.za/
