IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
SCA CASE NO. 573/08
NPD 8652/08
CC79/08
In the matter between :
THENDPP Applicant
and
JACOB GEDLEYIHLEKISA ZUMA Respondent
RESPONDENT'S HEADS OF ARGUMENT
INTRODUCTION:
The Appellant (also referred to as the "NDPP") has, throughout the proceedings, sought to construct and attribute a case to the Respondent (also referred to herein as "Zuma") which it could impugn. It is therefore necessary to spell out what the Respondent's case actually was and is, and to deal with some fundamental flaws in the Appellant's analysis thereof, before dealing specifically with the case the Appellant seeks to make out.
THE FACTUAL MATRIX:
1.
The background facts and circumstances are set out in the papers. Save for some minor qualifications the facts and circumstances set out in the founding papers are not in dispute. The main aspects in broad outline are:
(a) In about the middle of 2001 (at the latest) an intensive investigation was launched by the National Prosecuting Authority ("NPA") and particularly its Directorate of Special Operations ("DSO") into any criminal wrongdoing by Zuma and Schabir Shaik, relating to particularly the arms deal and their relationship and possible corrupt conduct. The investigation was completed in middle 2003, and certainly by 23rd August 2003.
(b) The then NDPP announced publicly on 23rd August 2003 that it had been decided by the NPA not to charge Zuma. The reason given was that, while there was a prima facie case against Zuma, the case was not sufficiently strong ("winnable"). However, Shaik was to be charged (this is referred to as the "Ngcuka decision").
(c) In June 2005, shortly after Shaik's convictions, Pikoli the new NDPP who replaced Ngcuka, decided to review the case against Zuma and to charge him with essentially the same offences (this is referred to as the "Pikoli decision"). There was no attempt at any compliance with S179(5)(d) of the Constitution of the RSA, 1996.
(d) Zuma's case was struck from the roll by Msimang J on 20th September 2006 after he refused the State a postponement.
(e) On 11th October 2007 Zuma, in writing (through his attorneys), requested an opportunity to make representations should his matter be reviewed, the State having previously indicated that it had not as yet decided whether to prosecute him or not. On 12th October 2007 the NDPP notified Zuma that his case was not the subject of a review or reconsideration by the NDPP and was still in the normal course of investigation by the DSO. It followed from this that in the NDPP's view representations would have been premature at that stage.
(f) On 27th December 2007, so the NDPP says, Mpshe the Acting NDPP in the place of the suspended Pikoli, decided to charge Zuma in respect of corruption involving the arms deal and his relationship with Shaik and certain ancillary charges (this is referred to as the "Mpshe decision"). The decision was implemented by the service of an indictment on Zuma on 28th December 2007. No attempt at any compliance with S179(5)(d) was made, nor to invite the representations Zuma asked to make on 11th October 2007, nor to inform Zuma that the NDPP had in fact, in the interim, come to consider whether to indict Zuma and that, therefore, if Zuma were entitled to make representations, the time was ripe to do so.
2.
The Respondent's case was and is premised on two alternative bases for the order it sought setting aside the decision to prosecute and the consequent charges:
(a) The NDPP was by reason of the provisions of S179(5)(d) of the Constitution, obliged to offer the Respondent an opportunity to make representations as to whether the status quo, established by the Ngcuka decision not to prosecute the Respondent, should be reversed or not, prior to reconsidering the decision with a view to possibly changing it;
or
(b) The NDPP was obliged to provide Zuma a proper opportunity to make representations in that in the circumstances of the case, it was required to do so by virtue of its prior conduct together with the provisions of law which prescribe the mode of exercise of the State's discretionary powers of prosecution (S179(5)(d) is simply one of the provisions that is relevant to and informs this obligation). Its failure to do so was unlawful in that it did not comply with such legal provisions; alternatively the failure constituted an unlawful abuse of the prosecution process.
See inter alia: Vol 1, p10, par 7 - p12, par 9; Vol 1, p18 - 19, par 9 - 10.
3.
The NDPP has throughout the proceedings sought to classify the Respondent's case as a review of the NDPP's decision(s) to prosecute him. That was not and is not the Respondent's case. Indeed, the Respondent has not sought to impugn the decision to prosecute itself herein; he has disavowed a challenge to the merits of such decision herein - it was expressly stated that the merits of such a decision will be addressed in a later application should that be necessary.
See: Vol 1, p11, line 19 and p19, lines 6 - 12.
4.
The Respondent's complaint always related to an antecedent event, the failure to give him an opportunity to make representations before the Ngcuka decision was overturned. Such a reversal would, given the provisions of the Prosecution Policy that such decisions as the Ngcuka decision can be relied upon (Vol 4, p295, lines 25 - 27), be dependent also on whether the special circumstances envisaged in the Policy were present etc. The Respondent's complaint relates to a necessary antecedent jurisdictional fact which was by law demanded from the NDPP before he could finally and duly consider his decision whether to change an earlier decision to prosecute or not.
5.
In short, the outcome of the decision to prosecute or not is not the essential part of the Respondent's cause of action. It is the Respondent's case that he would, in principle, have been entitled to interdict the actual reconsideration of Ngcuka's decision (this is dealt with infra but would the NDPP still have labelled that application a "review"?) in order to be given an opportunity to make representations. It is with respect fundamentally flawed to conflate the Respondent's complaint, with a review of the substantive decision to prosecute eventually made. The Respondent's complaint relates to the validity of the commencement of the actual review process and only indirectly relates to the outcome (which could obviously be affected by representations). Reference to case law which recognises a narrow ambit within which Prosecuting decisions may be reviewed, is, strictly speaking, not relevant to this enquiry.
6.
If the NDPP was obliged to provide the Respondent with an opportunity to make representations, before making up his mind whether to reverse the previous NPA (Ngcuka) decision or not, its failure to do so is simply unlawful and it offends the principle of legality and it has nothing to do with a reluctance to interfere with the actual decision to prosecute or not. Thus this Court was quite untroubled by the restricted powers of interference in prosecutorial discretion when it struck down the prosecution in NAIDOO AND OTHERS v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS 2005 (1) SACR 349 (SCA) for the simple reason that the NDPP's written consent which was required by law for the prosecution, had not been obtained. We deal with this further hereinafter.
THE S179(5)(d) ISSUE:
7.
The Respondent contends that the Pikoli and Mpshe decisions fall within the ambit of S179(5)(d) which reads:
"179 Prosecuting authority
(5) The National Director of Public Prosecutions-
...
(d) may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:
(i) The Accused person.
(ii) The complainant.
(iii) Any other person or party whom the National Director considers to be relevant.".
8.
If the contention that the Pikoli and Mpshe decisions fall within the ambit of S179(5)(d) is correct, the appeal must fail and none of the other issues needs to be addressed - that much is common cause.
THE INTERPRETATION OF S179(5)(d):
9.
(a) "A decision to prosecute or not to prosecute" - The sub-section contains absolutely no qualification or restriction on the phrase "decision to prosecute or not to prosecute". Prima facie it relates to any and all such decisions which the NDPP reviews. Whilst it is not expressly spelt out who made the decision to be reviewed by the NDPP, it obviously refers to a decision of the Prosecuting Authority, following on S179(2) which vests the power to make such decisions in the Prosecuting Authority after creating it and the components thereof being the NDPP, DPP's and Prosecutors (S1791(1)). See also the head note to S179 - "Prosecuting Authority", which is then described with reference to the NDPP, the DPP's and prosecutors (S179(1)). Interpretation in the context of the provision is the first rule of construction; S179 deals with the creation and functions and powers of the Prosecuting Authority:
As to the headnote forming part of such context - see CHOTABHAI v UNION GOVERNMENT (MINISTER OF JUSTICE) AND REGISTRAR OF ASIATICS 1911 AD 13 p24.
(b) The sub-section finds application whenever the NDPP then reviews (i.e. considers with a view towards reversing or maintaining) a decision by the Prosecuting Authority which includes the NDPP, the Deputy NDPP's, the DPP's and the Prosecutors appointed under the contemplated legislation (the National Prosecuting Authority Act No. 32 of 1998) ("the NPAA").
(c) The remainder of S179(5)(d) deals with what are obviously jurisdictional pre-requisites for the NDPP's review decision.
10.
S179(5)(d) thus means exactly what it says. If a NDPP seeks to consider reversing any decision to prosecute or not, compliance with its consultative and hearing requirements must first be complied with. The Pikoli and Mpshe decisions fall four square within those parameters.
11.
There is no sound reason why the Court should not give S179(5)(d) the aforesaid ordinary literal grammatical meaning which the language and context conveys: Compare DESERT PALACE HOTEL RESORT (PTY) LTD v NORTHERN CAPE GAMBLING BOARD 2007 (3) SA 187 (SCA) par [7] and [8], The correctness of the above interpretation is further considered and supported below when the Appellant's construction is considered.
See also: S v TOMS; S v BRUCE 1990 (2) SA 802 (A) 807 H - 808 A quoted by the Court a quo Vol 15, p1248, par 67.
THE FLAWS IN THE APPELLANT'S INTERPRETATION:
12.
The Respondent's interpretation maximises the ambit of operation of S179(5)(d) to include all previously made NPA decisions to prosecute or not which the NDPP intends to reconsider so as to possibly reverse them (obviously this relates to final decisions in the sense used in HOEXTER (infra) p247 not decisions of various functionaries in a decision making process).
13.
The NDPP's interpretation restricts the ambit of S179(5)(d) to a reconsideration of decisions previously taken by a DPP. Excluded would be decisions of prosecutors, Deputy National Directors, NDPP's and indeed any other NPA official in whom prosecuting authority is vested.
14.
One immediate difficulty with the NDPP's interpretation is that S179(5)(d) is an empowering Section - it grants the NDPP the power to review decisions to prosecute or not and indeed to change them provided he complies with certain requirements in the process. If the Section is then to be confined to the decisions of the DPP's, on what basis could Pikoli or Mpshe review the decision of Ngcuka if S179(5) did not give such a power and given the principle of legality which requires a lawful (constitutional) pedigree for an official act such as the review of the Ngcuka decision? In short, if S179(5)(d) is given the Appellant's interpretation, there was no right on behalf of the NDPP to review its previous decision - cadit quaestio. The post Ngcuka NDPP's had no power to change his decision and such purported changes were outside their jurisdiction. The office of the NDPP as that of a single apex official was created by the Constitution (See MINISTER OF DEFENCE v POTSANE AND ANOTHER; LEGAL SOLDIER (PTY) LTD AND OTHERS v MINISTER OF DEFENCE AND OTHERS 2002 (1) SA 1 (CC) [19], [29]). S179(5) determines important powers and functions of the NDPP - he is not given powers to change prosecutorial decisions over and above S179(5)(d) as the NPAA (S22(2)(c)) simply echoes S179(5)(d) - there was no reason to put the identical provision in the NPAA save to spell out that this is the sole power and ambit of the NDPP's power of changing prosecutorial decisions. The appeal must then fail on the Appellant's argument, on the basis that the Pikoli and Mpshe decisions offend the principle of legality.
15.
We simply point out that this is the outcome of taking the Appellant's argument to its logical conclusion which, while it suits the Respondent's case, the Respondent unfortunately must eschew because Appellant's interpretation is wrong and the aforesaid simply illustrates it.
16.
We submit that the interpretation of S179(5)(d) contended for by the Appellant is contrived, flawed and untenable for other reasons as well which we deal with in greater detail below.
17.
The first reason is that S179(5)(d) simply does not say what the NDPP says it means. It would have been a simple matter, and would have made perfect grammatical sense, for the legislature, if it had intended that, to have enacted S179(5)(d) of the Constitution in the following terms:
"(The NDPP) may review a decision [by a director of public prosecutions] to prosecute or not to prosecute, after consulting the relevant director of public prosecutions [such director] and after taking representations within a period specified by the national director of public prosecutions, from the following:
(i) the accused person;
(ii) the complainant;
(iii) any other person or party whom the national director considers to be relevant."
(Bold [ ]= insertion; underlining = omission).
18.
The Appellant is unable to advance any plausible explanation for the failure to simply word S179(5)(d) as above if that was intended. By parity of reasoning compare: RAF V RAMPUKAR 2008 (2) SA 534 SCA 541 B - C "This argument, of course, immediately gives rise to the question why, if this was indeed the legislature's intention, it failed to take the relatively simple step of introducing the restricting phrase." (This simple step was also not taken in respect of S22(2) of the NPAA, separated as its promulgation was from that of S179 by some 2 years).
19.
The Appellant's inability to explain this failure prompts it to rely on the words "the relevant director of public prosecutions" to imply that the decision had to emanate from a DPP, and no other source, before S179(5)(d) can come into operation. We submit that this is the second main reason why the suggested interpretation must be rejected - the applicant's interpretation purports to seize unjustifiably on what is no more than a procedural and implementation pre-requisite of S179(5)(d), once that sub-section is applicable, and to endeavour to elevate that procedural requirement to a defining element of the ambit of the operation of the sub-section itself. We submit that this is a manifestly impermissible and contrived interpretation of S179(5)(d).
20.
The phrase "relevant director" indeed does not support the Applicant's interpretation - surely there was no reason at all why the clear formulation suggested above which accords with sensible expression would not have been adopted if that was meant to be conveyed. "Relevant" suggests quite plainly that the DPP to be consulted, is not necessarily he who made the decision.
21.
We submit that the procedural requirement that the NDPP consult the relevant DPP is no more than a practical recognition that, in the ordinary course, decisions to prosecute or not to prosecute would be taken by a DPP or some-one under him and that all prosecutions would occur in the jurisdiction of a DPP. The DPP's are, in terms of S179(3)(b), responsible for prosecutions, in specific (geographic) jurisdictions making up the whole of the RSA. Any decision to prosecute would then be relevant to one of them (certainly when the Constitution was passed). That one is the relevant one referred to in S179(5)(d). We submit that S179(5)(d) does not and cannot mean that the decision to prosecute or not to prosecute had to emanate from a DPP (himself or herself) before the sub-section can come into operation. Such an interpretation would lead to absurd consequences. A DPP who suspects that the NDPP may change a decision under S179(5)(d) could then simply tell an underling to make the decision and negate the powers of review in S179(5)(d).
22.
The phrase relevant director indeed then implies the contrary of what the Appellant contends for. The DPPs' (the old AGs') combined jurisdiction covered the whole of the geographic jurisdiction of the RSA as recognised by S179(3)(b). A decision to prosecute or not would thus relate to the jurisdiction of one or other of them in the scheme and structure of S179; a Prosecutor (including the DPP himself) would normally have made the decision to be reviewed. Clearly the DPP in whose jurisdiction the case falls would be the relevant DPP - hence the reference to relevant as opposed to the DPP "who made the decision". In short, S179 contemplates that every prosecution would resort under some DPP.
23.
In the vast majority of cases, the decision on review, if it is to prosecute, will be implemented by a DPP in whose jurisdiction the prosecution is to be instituted, and will, in all cases, be prosecuted in a Court within the jurisdiction of a DPP who is therefore responsible (i.e. accountable) for that prosecution under S179(3). Moreover, it must be borne in mind that in terms of the Constitution, the NDPP is a direct presidential appointment for which no appropriate qualifications such as the DPP's must have (S179(3)(a)), were set. Consultations with an appropriately qualified person do not seem out of place.
24.
Indeed, the insertion of the word "relevant" detracts strongly from the NDPP's interpretation; the grammatical construction and reading of S179(5)(d) would sit far easier and more naturally with that interpretation if the word "relevant" was not used at all. In the NDPP's argument "relevant" is indeed a tautology or superfluity and there is a strong presumption against interpretations which yield such results - compare COMMISSIONER FOR INLAND REVENUE v GOLDEN DUMPS (PTY) LTD 1993 (4) SA 110 (A) 116 F - 117 B.
25.
The Appellant's suggested interpretation is further premised on a fallacy. The fallacy is that of the purported "autonomy" or "original powers" or "entrenched powers" of the DPP. The alleged "autonomy" or "original powers" of the DPP are said to have their source in S179(3)(b) of the Constitution. The flaw in this contention is fourfold :
(a) In like fashion to the S179(5)(d) interpretation, that is not what S179(3)(b) says; it simply makes the DPP's accountable for prosecutions within their areas of jurisdiction which must be demarcated - given the multitude of AGs that previously were in existence in the territories previously described as "homelands" before the advent of democracy.
(b) S179(2) reposes the power to institute criminal proceedings in the Prosecuting Authority made up as stated in S179(1) (and S4 of the NPAA).
(c) Such an interpretation of S179(3)(b) would fly in the face of S179(1) and S179(5) (to which 179(3) is rendered expressly subject) of the Constitution. Nor is such "autonomy" evident from Sections 20, 21, 22 and 24 of the NPAA. These Sections make it plain that the NDPP is the head of the prosecuting authority and that the DPP's exercise their powers subject to his directions and control. There is nothing "autonomous" about them, nor do they exercise "original powers", the power to decide to prosecute or not being vested in the prosecuting authority (S179(2) of the Constitution) itself which consists of more than just the DPP's (S179(1)).
(d) It is wholly irrational to seek to protect or safeguard the "autonomy" of the DPP's by giving the Accused and the Complainant and other relevant parties the right (but not the duty) to make representations. Why would this be added to the requirement of simple consultation with the DPP and how do the added requirements protect the DPP? At least one of them is going to try and wholly undermine the previous decision of the DPP to obtain a reversal thereof, if they make representations.
26.
Once it is shown that there is nothing "original" or "entrenched" about the DPP's powers, the State's argument crumbles because that argument is premised on the need to "strike a balance" between the "original and entrenched powers" of the DPP and powers of the NDPP - the correct position is simply that the NDPP is the Head of the single Prosecuting Authority (S179(1)(a)) and that the DPPs exercise their powers subject to his directions and control.
Compare also: NAIDOO AND OTHERS v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS 2005 (1) SACR 349 (SCA) [par 34]
THE RATIONALE OF S179(5)(d):
27.
The purpose of S179(5)(d) is to protect the legitimate reliance especially an Accused and a Complainant place on a duly considered and announced decision to prosecute or not to prosecute and also their interest in the result of such decisions as these are the parties who generally are most directly and significantly affected by that. It protects this at the level of NDPP decision making. Prosecution Policy expressly recognises the legitimacy of such reliance (see Vol 4, p295, lines 25 - 27). The jurisdictional pre-requisites in S179(5)(d) also in effect clearly serve to limit arbitrary changes of the decision to prosecute or not, by the NDPP. The dictum quoted below in CARLSON INVESTMENTS SHARE BLOCK (PTY) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE 2001 (3) SA 210 (W) (concerning S79(1) of the Income Tax Act No. 58 of 1962) is descriptive also of S179(5)(d) and its purpose: The pre-requisites are brakes on "the arbitrary exercise of power" "In my view, it is important to understand that the power to reassess may be exercised only when the jurisdictional facts set out in s 79(1) are present. This in itself is a brake on the arbitrary exercise of power. If the respondent or any of the respondent's officials were to purport to exercise the power to reassess in the absence of such jurisdictional facts then such action is clearly challengeable in Court." 233 B - C (our emphasis).
See also: SCAGGEL v AG OF THE WESTERN CAPE 1996 11 BLR 1446 (CC) [16] - [18].
28.
The profound effects of a mere decision to prosecute are within common sense, knowledge and experience and are well illustrated by the experiences of Zuma. Merely being prosecuted can destroy a person even if he is eventually acquitted.
THE APPELLANT'S ARGUMENTS IN SUPPORT OF ITS ALTERNATIVE INTERPRETATIONS IN ITS HEADS:
29.
The position re HOFMEYER'S evidence is the following:
(a) HOFMEYER'S statement that there were concerns that the NDPP as the apex official and a direct Presidential appointee could interfere with prosecuting decisions on the basis of political considerations can be accepted. His evidence is hardly necessary for this conclusion - there was now a single direct Presidential appointment who was in ultimate control of every prosecutorial decision. Obviously, political influence would be a concern and curbing abuse of his powers would be part of the mischief to be guarded against.
(b) The provisions of S179(5)(d) do not in their historical evolution speak to the mischief - they are the means to combat it. HOFMEYER'S evidence intended as it is to elevate means to mischief can thus not be relied upon - it is akin to explaining what draft legislation means.
(c) The analysis of the documents does not support HOFMEYER'S central thesis (irrelevant as it may be) that S179(5)(d) really gives effect to a historical desire to curb the mischief by confining it to decisions not to prosecute of an AG. The final working draft relates clearly and unmistakably to a decision to prosecute or not to prosecute - the intention has thus clearly changed to include the complete opposite from the earlier formulation and the earlier draft can then not serve to explain the diametrically opposite result.
(d) The HOFMEYER interpretation also does not explain why if it was really the AG's position of original power which was to be protected, he only needed to be consulted and why the Complainant and the Accused and other interested parties were given rights to make representations: that is clearly aimed at curbing arbitrary exercise of the NDPP's power as head of the Prosecuting Authority and to recognise the interests of these parties in the matter.
(e) Moreover:
(i) S179(5) is not ambiguous or vague - no background material is necessary to interpret it.
(ii) The background material is not common cause - it is not clear who compiled the CD, whether all relevant materials were included and accurately included.
(f) HOFMEYER'S views and recollections are of little or no weight beyond the obvious purpose of S179(5)(d) being a check on the NDPP having carte blanche to change decisions to prosecute or not.
30.
We dealt at length with the admissibility of HOFMEYER'S evidence in the heads of argument which appear in Volume 12 of the record and specifically in paragraph 50 to 72 (pages 969 to 983). We do not intend to repeat those arguments save to emphasise the following.
31.
HOFMEYER'S personal recollections and opinions as to what the drafts and final version mean are inadmissible based on the following case law authorities.
32.
In ATTORNEY-GENERAL, EASTERN CAPE V BLOM AND OTHERS 1988 (4) SA 645 (AD), Corbett JA, as he then was, summarised the principles as follows:
"... In the former judgment I referred to certain English cases of high authority in which it had been held that
'... in construing a statute where the words are not clear and unambiguous the Court may have regard to the report of a Royal Commission or committee appointed by the Government which shortly preceded the passing of the statute in order to ascertain the mischief aimed at and the state of the law as it was then understood to be, but not to determine the meaning attached by the commission or committee to any draft Bill recommended in the report which formed the basis of the statute passed by Parliament'.
The judgment referred to certain South African and other authorities and then proceeded:
'In my opinion, our courts too are entitled, when construing the words of a statute which are not clear and unambiguous, to refer to the report of a judicial commission of enquiry whose investigations shortly preceded the passing of the statute in order to ascertain the mischief aimed at, provided that there is a clear connection between, on the one hand, the subject-matter of the enquiry and recommendations of the report and, on the other hand, the statutory provisions in question.'
It is clear that this Court approved of reference to the report of a judicial commission of enquiry in the circumstances postulated, only in order to ascertain the mischief aimed at by the statutory enactment in question. It did not approve of such a report being used in order determine the meaning attached by the commission to any draft legislation recommended in the report, which formed the basis of the statute passed by Parliament. Indeed, the English authorities referred to in the judgment expressly disapprove of a report being used for this latter purpose; and I agree with that approach. I have read the extracts from the report attached to counsel's heads of argument. As I see it, counsel is endeavouring to use the report in order to demonstrate the interpretation placed by the Commission upon the draft s 30 - and its predecessor, s 12A of the Internal Security Act 44 of 1950 (as amended by ss 6 and 8 of the Internal Security Amendment Act 79 of 1976) - as an aid to the construction of s 30 of the Act as passed by Parliament. This is precisely the purpose for which such a report may not be used. This argument, therefore, falls to the ground." (At 668H-669F)(Emphasis added.)
33.
In the new constitutional era, those interpretive principles have not been changed. They have been endorsed and approved by the Constitutional Court with the addition of further cautionary principles.
34.
In S V MAKWANYANE AND ANOTHER 1995 (3) SA 391 (CC), (the death penalty decision) the Constitutional Court dealt with the issue in similar vein : see par 12- 14, 17, 19 and especially par 18:
[18] It has been said in respect of the Canadian Constitution that
'. . . the Charter is not the product of a few individual public servants, however distinguished, but of a multiplicity of individuals who played major roles in the negotiating, drafting and adoption of the Charter. How can one say with any confidence that within this enormous multiplicity of actors . . . the comments of a few federal civil servants can in any way be determinative.'
Our Constitution is also the product of a multiplicity of persons, some of whom took part in the negotiations, and others who as members of Parliament enacted the final draft. The same caution is called for in respect of the comments of individual actors in the process, no matter how prominent a role they might have played.
35.
Those principles of interpretation were revisited by the Constitutional Court in MINISTER OF HEALTH V NEW CLICKS SA (PTY) LTD AND OTHERS 2006(2) SA 311 (CC) at paragraphs 200-201 where the Court restated the general position and approved of the BLOM approach.:
36.
If as the State contends, based on HOFMEYER'S evidence that one of the concerns (which we accept) during the constitutional drafting process was to avoid political interference in the decision on whether to prosecute or not given the apex position of the NDPP, who is appointed by the President, then obviously similar considerations dictate the need to avoid political interference in a decision previously taken, endorsed or adopted by another NDPP. There is nothing in the plain language of the Section to preclude its application in such instance. The Appellant's restricted interpretation on analysis does not then serve the basic mischief HOFMEYER testifies to.
THE "ANOMALIES" CONTENDED FOR BY THE NDPP:
37.
It appears to be a high water mark of the Respondent's challenge to the ordinary sense and meaning of S179(5)(d) that: "why must the NDPP comply with S179(5)(d) in respect of previous NDPP decisions if other Prosecutors do not have to in respect of their previous decisions?"
38.
This rhetorical challenge has no merit at all:
(a) The NDPP must comply with S179(5)(d) for the simple reason that the Constitution says so in a clear and specific manner; it is not for him to question the underlying policy.
(b) Secondly, the question rests on an incorrect premise - namely, that there is never a duty on any other prosecutor to follow a similar process in respect of the change of a communicated decision to prosecute or not to prosecute. That is exactly what is addressed in the alternative case made out by the Respondent.
(c) It further rests on a logical non sequitur - it reverses the proper sequential process of logic. The question is not why should S179(5)(d) exist given the absence of such a process applying to "lower" prosecutors, it is why should, in the light of the existence of S179(5)(d), such a process not apply to other prosecutors reversing a decision to prosecute or not? The Appellant's line of reasoning proceeds on the premise that the proposed NO safeguard process is correct - that is not so, even in the historical sense. The correct starting point in a constitutional dispensation is, however, surely the S179(5)(d) safeguard process as the basic premise for it was a specific obligation enacted specially in the Constitution and entrenched against ordinary legislative change. It is not clear why the divergence of the S179(5)(d) regime from the regime which governs other prosecutors in respect of changes in decision, render S179(5)(d) as interpreted by the Respondent anomalous, as opposed to rendering the other prosecutors' regime anomalous.
39.
It is with respect a cart before the horse approach to utilise this as a justification for giving S179(5) a restrictive interpretation. The framers of the Constitution dealt with the apex structure of the Prosecution. They decreed that the NDPP must comply with these dictates if he is to reverse a decision to prosecute or not. They also decreed the NDPP had to formulate binding legal Policy and directives for prosecutors, well aware of the injunction of S39 of the Constitution. They may well have considered that these Constitutionally prescribed instruments would contain similar mutatis mutandis provisions. It is submitted later that the sense of especially the Policy and Code indeed calls for a similar S179(5)(d) approach albeit on a basis of principle as opposed to a rule of thumb. What is clear, however, is that the lack of a similar and precise term to S179(5)(d) in these instruments cannot be utilised to interpret the Constitution. It may also be that because of the level of the NDPP's intervention and the finality thereof in a hierarchical sense as well as the political connotations to the appointment, the specific requirements were set. One cannot however, use the provisions of the NPAA and the structures there created to interpret the Constitution which is both the earlier and supreme law. Once this is recognised, much of the basis of the argument seeking to restrict S179(5) simply disappears.
40.
The manner and extent in which the NDPP implemented the principle of the safeguards in 179(5)(d) and reliance on decisions to prosecute or not was left to him and the Minister and, indirectly, Parliament. If the Policy and directives failed to do so clearly and sufficiently that may be the subject of a Constitutional challenge to those - not S179(5)(d). What it cannot mean is that the failure to do so, or do so adequately, determines the interpretation of 179(5)(d). That would be the wholly impermissible equivalent of allowing later regulations of a Minister made under an Act of Parliament, to serve as a means of interpreting such Act.
41.
In short, the lack of precise provisions governing all cases and requiring compliance with the type of safeguards in S179(5)(d) in the Code and Policy may be an indictment of the quality and validity of these instruments; it cannot however serve to interpret S179(5)(d) or limit its ambit as dictated by S39 of the Constitution.
42.
In the pre-Constitutional era, the principle that regulations could not be used to interpret the provisions of an Act were well established. (MOODLEY AND OTHERS V MINISTER OF EDUCATION AND CULTURE, HOUSE OF DELEGATES, AND ANOTHER 1989 (3) SA 221 (A), where the Court held at 233 E-F:
43.
Those principles have been endorsed by the Constitutional Court as to the interpretation of provisions of the Constitution.
See: ISLAMIC UNITY CONVENTION v MINISTER OF TELECOMMUNICATIONS AND OTHERS 2008 (3) SA 383 (CC), at paragraph 57 read with the authorities cited at footnote 82. "The disputed paragraphs cannot be used as an aid to interpret the impugned provisions, in the same way that regulations made in terms of legislation cannot be used as an aid to interpret that legislation."
44.
There is another sound reason why the Respondent's reliance on an analogy between the NDPP and other prosecutors is unsafe:
45.
The NDPP is the apex official in a body which has a fixed practice and history of considering representations (See Ngcuka's announcement). Representations can be made at every level but parties dissatisfied with the outcome obviously can and sometimes will take it to the NDPP as the apex official to seek change - that is the final level within the NPA where internal remedies are exhausted and the framers of the Constitution have seen fit to prescribe how he shall deal with the review process of any previous decision should he decide to engage in it (which decision he will presumably take in a responsible manner). If he decides not to engage in it, the previous decision stands. Should he decide to review it, he must do so in accordance with the process in S179(5)(d). There was no need to further prescribe similar provisions for changes lower down in respect of changes in a decision to prosecute or not. At that lower level the policy will dictate what the steps are to be taken with S179(5)(d) the fall back situation. At the final (highest) level of internal NPA decision making, the Constitution thus stipulates the process. There is nothing anomalous about that.
ANOMALIES IN THE NDPP'S INTERPRETATION:
46.
The interpretation of the NDPP of course brings about its own absurdities and irrationalities. If the DPP wishes to avoid intervention under S179(5)(d) he can simply ask the Deputy Director or some other prosecutor to make the decision. The NDPP can intervene if it is the DPP's decision but not the decision of a lower ranking or a higher ranking official (e.g. a National Deputy Director). Those Accused and Complainants affected by such a decision have no similar opportunity to be heard. We submit that the Appellant's interpretation results in arbitrary, unequal and therefore untenable consequences.
47.
We illustrate a further anomaly. The DPP KZN decides not to prosecute A(ccused). He conveys this decision to A and C(omplainant). C seeks to change the DPP's mind in vain and then approaches the NDPP. The NDPP decides to review the DPP's decision and, as is common cause between the parties, has to and does comply with S179(5)(d). He has to and does give A (and of course C) an opportunity to make representations. He confirms the decision not to prosecute and conveys it to the parties. A year later C again makes representations to the new or acting NDPP. The Appellant will habit that the NDPP can now decide to prosecute without giving A the opportunity to make representations. In short, despite a decision in A's favour by a DPP, but merely because the decision had been confirmed by an NDPP, A is deprived of the constitutional protection of S179(5)(d) in respect of changes of decisions to prosecute or not. This is a wholly irrational result - there is no rational basis why such an Accused should have no right to make representations simply because the DPP's decision was backed by the previous NDPP as well - indeed, that factor should strengthen, as opposed to destroy, his right to be given an opportunity to make representations if a change is to be considered. This result is wholly at odds with the provisions of S9 of the Constitution - "(1) Everyone is equal before the law and has the right to equal protection and benefit of the law." The NDPP's interpretation renders "some more equal than others, and arbitrarily at that."
48.
The anomalies that the NPA complains of in paragraph 34 of its written submissions are thus easily explained. However, there is a fundamental flaw underlying the questions posed in this paragraph and that is the failure to recognise that the process of inviting (and considering) representations from accused persons and complainants and other relevant parties precedes the making of a decision. In other words, the representations from all relevant parties are to assist in determining whether to reverse a prosecutorial decision to prosecute or not. At the time of such hearing, a decision to alter the prosecution decision has not yet been made. The questions posed by the NPA in paragraph 34 ignore this critical purpose.
49.
The steps in S179(5)(d) are to be taken before the decision is taken. The NDPP also does not at that stage know whether he is going to reverse or uphold the decision he is reconsidering. The Respondent reverse engineers the process in its logic. If the NDPP confirms the decision not to prosecute without hearing representations from the Complainant or the other relevant parties, his decision is ultra vires and offensive to legality.
50.
The making of representations in casu and the consideration of such which are made, does not translate into the traditional or paradigm hearing situation or a mini trial. Clearly what representations are designed to achieve is not a process of evidence, cross-examination and the like - it is designed to place before the NDPP relevant information and contentions so as to assist him in correctly deciding whether to change a decision on which others could and would normally rely on as final, and conducted their affairs accordingly.
51.
We deal below with the NDPP's other contentions.
52.
First the NPA argues that S35 of the Bill of Rights deals with the rights of accused persons and it is incongruous to interpret S179(5)(d) to "extend yet further protection to an accused". (Paragraph 45 of the NPA's written submissions). It seems to us that that is exactly what S39(2) may require.
53.
We fail to see the incongruity. S179(5)(d) appears in chapter 8 headed "Courts and Administration of Justice" which clearly grants rights to both an accused and a complainant (and relevant parties) in the context of a criminal case which rights are not expressly recognised in S35. If such rights are interwoven with a restriction on the NDPP's powers to change decisions and also deal with rights of complainants and other relevant parties, why should the interpretation of such a provision be dictated by what was said in S35 about the suspected, the arrested and the accused and why should it not be dealt with under the administration of Justice? There are indeed many sections in the Constitution which either amplify or enhance or limit rights in the Bill of Rights - see e.g.
NEW NATIONAL PARTY OF SOUTH AFRICA v GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS 1999 (3) SA 191 (CC).
DOCTORS FOR LIFE INTERNATIONAL v SPEAKER OF THE NATIONAL ASSEMBLY AND OTHERS 2006 (6) SA 416 (CC).
MATATIELE MUNICIPALITY AND OTHERS v PRESIDENT OF THE RSA AND OTHERS (No 2) 2007 (6) SA 477 (CC) par [36].
54.
It is indeed not odd to use the term review in respect of one's own decision or policy - indeed that is exactly what Ngcuka stated in respect of the Ngcuka decision. McCarthy used the same terminology and indeed the Code uses the term review clearly also in the context of a Prosecutor reconsidering his own decision. Cleary S179(5) does not refer to a review in the sense the High Court reviews decisions. Dictionary parlance "review: examine or assess (something) formally with the possibility or intention of instituting change if necessary" (New Oxford Dictionary of English) reflects the ordinary meaning which fits comfortably with a review of one's own earlier decision etc.
Compare also: Judgment, Vol 15, p1249, par [68].
55.
Nor is it odd for the NDPP to have input from both Accused (suspect) and Complainant and indeed all relevant parties - he is not supposed to have changed the decision made, already, he is to assess the previous decision's correctness with input from both sides. Indeed it would be blatantly unfair and odd to invite representations from only one side where notoriously the two sides are at odds.
SECTION 39(1) & (2) CONSIDERATIONS:
56.
S39(1) and (2) of the Constitution reads:
"39 Interpretation of Bill of Rights
(1) When interpreting the Bill of Rights, a court, tribunal or forum-
(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
...
(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights."
57.
S39(2) of the Constitution requires the interpretation of legislation in a manner which "promotes the spirit, purport and objects of the Bill of Rights." This has come to be known as a "mandatory constitutional canon of statutory interpretation".
FRASER V ABSA BANK LTD (NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AS AMICUS CURIAE) 2007 (3) SA 484 (CC), at paragraph 43
See also: INVESTIGATING DIRECTORATE: SERIOUS ECONOMIC OFFENCES AND OTHERS V HYUNDAI MOTOR DISTRIBUTORS (PTY) LTD AND OTHERS: IN RE HYUNDAI MOTOR DISTRIBUTORS (PTY) LTD AND OTHERS V SMIT NO AND OTHERS 2001 (1) SA 545 (CC), at paragraphs 21-22:
This (S39(2)) means that all statutes must be interpreted through the prism of the Bill of Rights. All law-making authority must be exercised in accordance with the Constitution. The Constitution is located in a history which involves a transition from a society based on division, injustice and exclusion from the democratic process to one which respects the dignity of all citizens, and includes all in the process of governance. As such, the process of interpreting the Constitution must recognise the context in which we find ourselves and the Constitution's goal of a society based on democratic values, social justice and fundamental human rights. This spirit of transition and transformation characterises the constitutional enterprise as a whole."
58.
In PHUMELELA GAMING AND LEISURE LTD V GRÜNDLINGH AND OTHERS 2007 (6) SA 350 (CC), the Constitutional Court expressed this duty as follows:
"[27] A court is required to promote the spirit, purport and objects of the Bill of Rights when 'interpreting any legislation, and when developing the common law or customary law'. In this no court has a discretion. The duty applies to the interpretation of all legislation and whenever a court embarks on the exercise of developing the common law or customary law. The initial question is not whether interpreting legislation through the prism of the Bill of Rights will bring about a different result. A court is simply obliged to deal with the legislation it has to interpret in a manner that promotes the spirit, purport and objects of the Bill of Rights. The same applies to the development of the common law or customary law." (Footnotes omitted.)(Emphasis added.)
59.
It is submitted that this applies with equal force to the interpretation of S179(5). On this basis this Court is enjoined to favour an interpretation that is expansive rather than limiting of the obvious protections and safeguards in S179(5).
60.
This was the position even in the pre-Constitutional era as it related to the right to a hearing.
See: ATTORNEY-GENERAL, EASTERN CAPE V BLOM, supra, at 660F- 662I.
Compare also now MNGOMEZULU AND ANOTHER v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND ANOTHER 2008 (1) SACR 105 (SCA) par [6] re the S39 approach to a right of hearing.
61.
It is thus necessary to pose the question as to what values which underlie an open and democratic society based on human dignity, equality and freedom spirit and / or objects of the Bill of Rights would be promoted by adopting the restricted interpretation proposed by the NDPP.
62.
The NDPP does not deal with S39 and has not pointed to any legitimate Constitutional objective or advancement of the administration of justice, which is promoted by the restriction it seeks to read into S179(5)(d). This is because there is not one. The restriction results in extra-ordinary and irrational results which are wholly irreconcilable with the equality provisions of S9 - everyone is entitled to equal protection and benefit of the law.
63.
On the Appellant's interpretation the NDPP only has to invite representations by the persons most directly affected by a reconsideration and its result, the Accused and the Complainant, if the standing decision is one by a DPP; not if it is one by some other Prosecutor, the Deputy NDPP or the NDPP himself (or his predecessor) or any combination of these.
64.
The right to be heard is recognised as the care element of the concept of natural justice and the rule of law.
65.
The rule of law is a justiceable fundamental value which underlies the Constitution.
66.
There is no doubt that S179(5)(d) recognizes the right to make representations on an important right and that fairness and transparency demand that such a right be recognised on the part of those directly affected by a potential change of the standing decision.
67.
There is nothing novel about this proposition. The fact that citizens are entitled to rely on decisions made by public officials is a deeply entrenched principle of our common law finding expression in the administrative context in the functus officio doctrine. Stated simply this doctrine means that once a decision is taken on a matter, the decision cannot be reversed unless there is statutory authority to do so. It is a doctrine rooted in the Rule of Law, a founding constitutional value. HOEXTER links this common law doctrine to the doctrine of legality and to the values of certainty and fairness:
"There are good reasons for this. The rule of law holds that individuals should be entitled to rely on governmental decisions, and to be able to plan their lives around such decisions, insulated at least to some degree from the injustice that would result from a sudden change of mind on the administrator's part. There is also the fundamental principle that administrators must have lawful authority for everything they do - and undo. These considerations of certainty, fairness and legality help to explain why official decision-makers are said at common law to be ‘functus officio' once a decision has been made. According to this doctrine, an official who has once ‘discharged his official function' by making a decision is unable to change his mind and revoke, withdraw or revisit the decision." (HOEXTER (supra) at page 247 and see generally pages 246-251).
68.
In the pre-democratic era, although the doctrinal basis for the functus officio doctrine was not always clear, the principles of legal certainty, fairness and finality in administrative law, as essential elements of rule of law, were well entrenched in public law.
69.
Compare also the Court's analysis of the general right to be heard in A G v BLOM (supra).
70.
(a) S179(4) requires the prosecutorial function to be exercised without favour or prejudice. S179(5)(d) requires as an imperative that an opportunity for representations be granted in the instances governed by its provisions.
(b) Should a NDPP review a decision of his own office to prosecute or not as opposed to that of a DPP, there is no rational difference from the perspective of the interests of the relevant parties in S179(5)(d)(i) - (iii) in participating in the review process. Indeed, given at least as part of the rationale that such participatory rights serve to minimize or ameliorate political influence to change a decision, the mechanism of suspending or dismissing an NDPP to have a more "compliant" NDPP to reverse a decision, suggests that the fear or favour requirement dictates similar protection for the relevant parties where a change in the person of the decision-maker coincides with a review.
(c) S9 of the Constitution provides for "equal protection and benefit". If the relevant parties do not have an opportunity of participation where both a DPP and an NDPP had taken an earlier decision, it is conduct which offends against such equality provision in a discriminatory and irrational manner. Why would this reliance on such decision receive less protection?
71.
An interpretation which recognizes a wider ambit of S179(5)(d), thus promotes the values and objects underlying the Constitution. In terms of S39(2), that must be adopted.
72.
We submit that the above establishes that the Court a quo's decision to adopt the "wider" interpretation and to reject the NDPP's interpretation was clearly correct. The appeal must then fail with the costs of three Counsel.
THE FACTUAL OBSTACLE:
73.
Even if the Appellant's restricted interpretation is correct, it is not clear how it takes the Ngcuka decision out of the parameters of S179(5)(d).
74.
The Ngcuka decision was at best for the Appellant, a joint decision of Ngcuka (the NDPP) and McCarthy, the head of the DSO (at worst, a decision of McCarthy which Ngcuka saw fit not to interfere with).
75.
The head of the DSO is, to all intents and purposes, an equivalent of a DPP (although statutorily categorised in the NPAA, subsequent to the enactment of S179(5)(d), as a "Deputy" NDPP), subsequent to S179's promulgation and hence not specifically catered for in the wording of S179. The head of the DSO is the equivalent of a DPP but with his jurisdiction determined on a case by case basis (with reference to the nature of the offence) as opposed to any specific geographical area of jurisdiction (Compare the NPAA S7 and chapter 5).
76.
The reversal of the Ngcuka decision was thus not only a reversal of a decision of a NDPP but also a decision of a Prosecutor the equivalent of a DPP. That falls four square within S179(5)(d) even as interpreted by the NDPP.
THE NDPP'S STRIKING OFF ARGUMENT:
77.
The NDPP argues that the Ngcuka decision was reversed by the Pikoli decision and that the Pikoli decision was nullified ("spent") when Msimang J struck the case against Zuma from the roll. The NDPP conflates the concept of a decision to prosecute or not to prosecute, a withdrawal of charges and a striking off the roll of a criminal matter. These are different legal acts and have different consequences. A prosecutor who elects to withdraw charges rather than seek a postponement has not changed the decision to prosecute. The bringing of charges is an implementation of a decision to prosecute; neither theory nor practice demands an equation which indeed seems impossible. Of course a withdrawal may be an indication and sometimes a compelling indication that the decision to prosecute has been changed but this is a factual issue (compare DENSE CONCRETE (infra)) but as a matter of law a withdrawal or a striking from the roll does not negate the decision to prosecute which was being implemented.
78.
Clearly a prosecutor whose witness has not arrived and he is not certain when and if he is going to find him and elects to withdraw, does not necessarily change the decision to prosecute in the process. He may elect withdrawal exactly because the decision stands and will be given effect to, by re-charging the Accused.
79.
What is incomprehensible about the NDPP's argument is why the striking off of a case which terminates the then current criminal court charges before Msimang J, undoes Ngcuka's decision which is wholly in accord with the result thereof - there are to be no charges.
80.
It would also present a remarkably easy way to get rid of decisions which would otherwise require a review - simply bring a charge, allow a strike off by not proceeding on the first appearance (or non-appearance) and then be unfettered by any previous decisions.
81.
In this instance the prosecution before Msimang J indeed refused to withdraw the charges after the adjournment was refused - the decision to prosecute was clearly not changed as a result. It is perfectly clear also that a striking off in terms of S342A(3)(c) has no effect whatsoever on even the resuming or de novo institution of charges unless the Court adds a rider that the DPP's written consent is required - clearly even then it has no effect at all on the decision to prosecute as a separate legal fact.
82.
It is patently clear that if Mpshe had indeed as argued, reviewed the decision to prosecute or not on the basis that the striking off of the matter had negated Ngcuka's decision and he thus took a fresh decision without any regard to it, he clearly so mis-directed himself that there was no review process at all under S179(5)(d) or even under the policy where he is at least to consider whether there are special circumstances.
83.
(a) We submit that if the Respondent is right in his interpretation of S179(5)(d), then Pikoli's decision was invalid (this is common cause). It was, for that reason, and because it offended the principle of legality, a nullity. It could therefore not have affected Ngcuka's decision, which stood.
(b) Furthermore, Mpshe's decision (on the Appellant's argument) depends, for its validity, on not the fact (i.e. the existence) of Pikoli's decision, but the validity of that decision, for it was only if Pikoli's decision was valid that it could legally destroy Ngcuka's decision and leave Mpshe with the clean slate for which the State contends. Cf OUDEKRAAL ESTATES (PTY) LTD v CITY OF CAPE TOWN 2004 (6) SA 222 (SCA) at [26] - [38].
THE ALTERNATIVE BASIS RELIED ON BY THE RESPONDENT:
84.
If the NDPP's interpretation that S179(5)(d) applies only where the NDPP seeks to review a decision of a DPP and the Pikoli and Mpshe decisions do not do so, then the Respondent contends that in the circumstances of the case he had a right to make representations which was unlawfully negated by the NDPP.
85.
Lawful exercise of the prosecutorial discretion to reverse the 2003 decision not to prosecute requires that this be done in accordance with the applicable legal framework and rules. See NAIDOO v NDPP 2005 (1) SACR 349, par 38, par 39, par 46 and par 49.
86.
The NDPP suggests that the Respondent's alternative case was solely based on S33 of the Constitution. That was and is not so.
See: Vol 1, p11, par 9.
Vol 1, p18, par 10.
Vol 1, p89, par 158.
Vol 1, p95, par 164.
Vol 1, p54 "This application is about the unlawful denial of an opportunity to make those representations."
87.
The duty to invite representations contended for flows from the interpretation and application of the provisions of the Constitution, the NPAA and the Policy and Code and the conduct of the NPA in the circumstances of the case.
88.
The Constitution in S179(5)(a) and (b) requires both the formulation and compulsory observance of a prosecution policy; this is echoed and confirmed in S21(1) of the NPAA.
THE PROSECUTION POLICY:
89.
The Prosecution Policy is not simply to be treated as an internal declaration of Policy which the NPA can change at will and observe to the extent it deems meet. Compliance with the Policy is a Constitutional imperative (S179(5)(a)) and this is recognised as such in the Policy itself (Vol 4, p290, par 1, lines 15). It also recognizes that members of the public will rely on such a document and conduct themselves in accordance therewith (Vol 4, p290, par 2 and p295, para 5 (b)). In short, the Prosecution Policy, though it must clearly not be read and interpreted as a Statute as it lays down principles rather than rigid prescriptions, is binding law which the NPA must comply with, and which the public can legitimately expect will be complied with and which, where individual interests are threatened, can be enforced. Conduct contrary to it is clearly unlawful and contrary to the principle of legality which binds the NPA.
90.
S22(6) of the NPAA also requires a Code of Conduct which all members of the Prosecution Authority must comply with (the NPAA defines the Prosecution Authority to include the NDPP - Section 1 - and both the Code and Policy require input from the Government). See also the Policy and Code which themselves proclaim their binding nature.
See: Policy Vol 4, p288 - 300 (repeated at pages 364 to 373).
Code Vol 4, p374 - 376.
91.
The most relevant provisions of the Policy are the following (We apologise for quoting as opposed to simply referring but the outlay of the Policy and Code makes precise reference difficult).
92.
Under the heading "Restarting a Prosecution", (Vol 4, p295, para 5 (b)) the Policy provides as follows:-
"People should be able to rely on and accept decisions made by members of the Prosecuting Authority. Normally, when a suspect or an accused is informed that there will not be a prosecution or that charges have been withdrawn, that should be the end of the matter.
There may, however, be special reasons why a prosecutor will review a particular case and restart the prosecution. These include:
•· An indication that the initial decision was clearly wrong and should not be allowed to stand;
•· An instance where a case has not been proceeded with in order to allow the police to gather and collate more evidence, in which case the prosecutor should normally have informed the accused that the prosecution might well start again; and
•· A situation where a prosecution has not been proceeded with due to the lack of evidence, but where sufficient incriminating evidence has since come to light."
93.
Under the heading "Purpose of Policy Provisions", (Vol 4, p290, line 28) the Policy provides as follows:-
"... Since the Prosecution Policy is a public document, it will also inform the public about the principles governing the prosecution process and so enhance public confidence. ..." (at Vol 4, p291, lines 4 - 5).
94.
Under the heading "The Role of the Prosecutor", (Vol 4, p291, par 3) the Policy provides as follows:-
"...Members of the Prosecuting Authority must act impartially and in good faith. They should not allow their judgement to be influenced by factors such as their personal views regarding the nature of the offence or the race, ethnic or national origin, sex, religious beliefs, status, political views or sexual orientation of the victim, witnesses or the offender. ..." (p291, lines 33 - 36).
95.
Under the heading "Criteria Governing the Decision to Prosecute", (Vol 4, p292, par 4) the Policy provides as follows:-
"...The decision whether or not to prosecute must be taken with care, because it may have profound consequences for victims, witnesses, accused and their families. A wrong decision may also undermine the community's confidence in the prosecution system. ..." (p292, lines 12 - 14).
96.
Also under the heading "Criteria Governing the Decision to Prosecute", (Vol 4, p292, par 4) the Policy provides as follows:-
"... Where the prospects of success are difficult to assess, prosecutors should consult with prospective witnesses in order to evaluate their reliability. The version or the defence of an accused must also be considered, before a decision is made. ..." (Vol 4, p292, lines 24 - 26).
97.
Also under the heading "Criteria Governing the Decision to Prosecute", (Vol 4, p292, par 4), the Policy provides as follows:-
"... The review of a case is a continuing process. Prosecutors should take into account changing circumstances and fresh facts which may come to light after an initial decision to prosecute has been made.
This may occur after having heard and considered the version of the accused and representations made on his or her behalf. Prosecutors may therefore withdraw charges before the accused has pleaded in spite of an initial decision to institute a prosecution. ..." (p292, lines 30 - 35)
98.
Also under the heading "Criteria Governing the Decision to Prosecute", (Vol 4, p292, para 4) the Policy provides as follows:-
"... ● Whether there has been an unreasonably long delay between the date when the crime was committed, the date on which the prosecution was instituted and the trial date, taking into account the complexity of the offence and role of the accused in the delay. (p295, lines 6 - 9).
The relevance of these factors and the weight to be attached to them will depend upon the particular circumstances of each case. (p295, lines 10 - 11).
It is important that the prosecution process is seen to be transparent and that justice is seen to be done." (p295, lines 12 - 13).
99.
It is thus imperative that the prosecution policy lays down binding constitutionally prescribed norms which must be complied with - the NPA cannot (lawfully) act contrary to these norms. In the Court a quo the Prosecution accepted that the Policy consisted of legal rules analogous to sub-ordinate legislation. It is at least that but no useful purpose is served in casu by this classification - the policy consists of legal norms expressly required by the Constitution and by the NPAA to be complied with by the NPA in the exercise of its powers and functions.
100.
The discretion to review a decision to prosecute or not must be exercised according to the law (which includes the Policy) and within the spirit of the Constitution. It is thus no answer to a call for such compliance that the Policy is framed more as a collection of principles than as Statutory provisions - it contains "principles governing the prosecution process" (Vol 4, p291, par 2, line 5). The common law is no less the law and no less requires implementation by the Courts simply because it consists of principles and doctrines. Such a source of law may well give more latitude or be more fluid as to what conduct offends or complies, but that does not detract from the fact that prosecutorial conduct either complies with or offends the principles of the Policy. Conduct outside these parameters offends the principle of legality. Given the above, the injunction to heed S39(1) and (2) in interpreting the Policy and applying it to the facts to establish the NPA's compliance or not, take on even greater significance.
101.
The Code (Vol 4, p374 - 376) has a similar status : Constitution S179(7) read with S22(6) of the NPAA:
(a) It is intended to promote and ensure public confidence in the integrity of the criminal justice system (p374 lines 18 - 19).
(b) The discretion to institute proceedings should be free from undue political interference (p374 lines 39 - 41, par 2).
(c) 3(h): "take into account all relevant circumstances and ensure that reasonable enquiries are made about evidence, irrespective of whether these enquiries are to the advantage or disadvantage of the alleged offender;" (p375, lines 14 - 16).
(d) 4.2(d): "if requested by interested parties, supply reasons for the exercise of prosecutorial discretion, unless the individual rights of persons such as victims, witnesses or accused might be prejudiced, or where it might not be in the public interest to do so;" (p375, lines 44 - 47).
102.
South African law recognizes the Prosecution's overriding duty to act fairly which is owed to suspect, accused, complainant and the community generally and that an abuse of the prosecution process is unlawful (see authorities infra).
103.
In short, it is not correct that a prosecutor can simply always reverse a deliberate decision not to prosecute, without calling for representations from the Accused. The circumstances may well be such that he must do so in order to comply with the legal provisions which govern his capacities and conduct. The present is one such a case. Even the decision to prosecute or not is justiceable.
104.
It is also with respect clear that the State is bound by agreement, a promise, undertaking or representation that it will not prosecute an individual.
105.
The underlying values vary from the clean hands doctrine to policy considerations that if the Prosecution's word (and thus the State's) cannot be relied upon, no one will accept it and the entire system will be strained.
106.
On the basis of the principle that the greater includes the lesser in respect of rights and duties, there is no doubt that a Court will hold the Prosecution to an agreement, promise, undertaking or representation that it will not make a decision to prosecute or change a decision to prosecute without giving the intended Accused an opportunity to first make representations in respect of such a decision. Holding the Prosecution to such a representation etc does not detract from or dilute the prosecutorial discretion; indeed it can only enhance the prospects of a proper exercise (see above).
107.
We deal with the authority for the above propositions below. We contend that especially the Policy and the Code required that in the circumstances of the case, the granting of an opportunity to Zuma to make representations especially those provisions requiring the Accused's version to be considered, that great care must be taken in making such decision to prosecute or not, the recognition of the reliance placed on such decisions by the affected parties and the relative finality of such decisions which would normally require special circumstances to reverse.
108.
It is the Respondent's case that the NPA indeed also represented that it would, especially if an opportunity is sought, provide the Respondent with an opportunity to make representations prior to making another decision to prosecute or not.
THE 2003 NGCUKA DECISION:
109.
In August 2003 the NPA took a decision not to prosecute Zuma in respect of his relationship with Schabir Shaik involving Shaik making payments over a number of years to Zuma, and similarly in respect of any arrangement between Zuma Shaik and Thint whereby Zuma would be paid to protect Thint in respect of any fall-out from the Arms deal and generally advance Thint's interests. This was after seeking and receiving a statement from Zuma as to his version of certain events, which Ngcuka indicated necessary to make a proper and informed decision.
110.
This decision not to prosecute was:
(a) the decision of the NPA, the single entity established by S179(1) of the Constitution and made, inter alia, by the head of the DSO, which was the directorate of the NPA which specifically investigated the above matters, one McCarthy a Deputy National Director of Public Prosecutions and Ngcuka, the then National Director of Public Prosecutions.
(b) a decision following a careful, meticulous, extensive and exhaustive investigation into all possible criminal conduct in the above context, by the NPA, employing vast resources both in and outside of the RSA.
(c) a decision which was regarded as of extreme importance and carefully considered by the top echelon of the NPA with whose views experienced Senior Counsel agreed.
(d) stated by the NPA to be a considered one and intended to bring to an end the severe strain, harm and prejudice the investigation had subjected Zuma to. It was thus clothed with a high degree of finality and certainty in respect of any possible prosecution of Zuma.
(e) announced and published in the most emphatic and wide ranging manner possible through a NPA press statement, a Press conference and the televising of the announcement of the decision.
(f) justified by reasons being provided to the public and the Accused for the decision.
(g) implemented by Shaik and his company empire being charged on their own in respect of the alleged criminal conduct set out above.
(h) Accompanied by a pertinent statement by Ngcuka that the NPA will always consider representations and indeed that it considers itself bound by law to do so (Vol 3, p200, par 25)
See: Vol 3, p197 - 2002.
111.
This decision was announced in the above manner in the context of the Code and Policy which clearly held that persons are entitled to rely on decisions to prosecute or not and that such a decision is normally the end of the matter. Given the above features of the 2003 decision, it was clear that a great deal of reliance could be placed on the same being final and the end of the matter. It was clear that a revival of the charges at a later date would cause great harm to the Accused and his political supporters.
THE 2005 PIKOLI DECISION:
112.
(a) That decision was left to stand undisturbed for 2 years. It was then reversed in circumstances which smack of political pressure (without contending that it was actually inspired by that).
(i) Shaik is convicted in June 2005. That was always seen as a likely consequence by the NPA and one which had no effect on the decision to charge Zuma. The terms and reasons for the 2003 decision announced in one breath make that clear. The result in that prosecution where Zuma was excluded, expected as it was, could never justify the reversal of the 2003 decision.
(ii) The President almost immediately thereafter seeks the resignation of Zuma; when that is rejected, he dismisses him on 14 June 2005 stating that Zuma has still to have his day in Court.
(iii) The NPA announces the decision to prosecute Zuma on 20 June 2005 without seeking an iota of input from Zuma into the Pikoli decision which reverses the 2003 decision. If the Ngcuka decision was an extremely important one to be taken with great care as the NPA proclaimed, a fortiori so was a decision to reverse it.
(b) Zuma is charged in all haste with the mirror charges re Shaik on 29 June 2005 and an indictment reflecting this with exactly the same list of 102 witnesses is filed in November 2005 when he is charged in the High Court.
(c) The charges are in September 2006 held to be ill-considered, hasty, premature and carelessly brought and the decision to prosecute likewise in the Msimang J Judgment which is res judicata between the parties as to these issues.
THE 2007 MPSHE DECISION:
113.
(a) The NPA states its indecision whether to charge Zuma or not following this. It had been specifically apprised by the defence before Msimang J of Zuma's S179(5)(d) complaint and the intention to rely on this. The NPA intimates that it will await inter alia the finalization of the warrant litigation before making a decision.
(b) On 11th October 2007 with the Polokwane elections at hand in December 2007 to elect the ANC's political leader, with the choice between Zuma and President Mbeki, Zuma specifically requests an opportunity to make representations if the decision to charge him or not, is reviewed (as press reports and statements indicate); the very words Ngcuka used to describe the process of reversing the 2003 decision (review) should additional evidence of guilt emerge. Zuma clearly seeks an opportunity to make representations prior to any decision to prosecute being made.
(c) The laconic reply of the NPA on 12th October 2007, is that his case is not being reviewed as yet, it is still being investigated - this clearly means that there is no point in making submissions at that time.
(d) On 27 December 2007 without inviting any representations from Zuma, Mpshe (with McCarthy) decides to prosecute Zuma which is done on 28 December 2007.
114.
We submit that it is significant that the Appellant cannot explain this conduct plausibly given the exchange of correspondence between the respondent and the applicant on 11 October 2007 and 12 October 2007. (Annexures "K" and "L" to the founding affidavit Vol 4, p342 - 343, and 344 respectively). We respectfully submit that the only reasonable interpretation that can be attributed to annexure "L", at the stage at which it was sent to the Respondent, was that the respondent's request to be allowed to make representations before he was recharged, was premature because the respondent's matter was still under investigation by the DSO and the NDPP had not then had cause to apply his mind to the matter. The response could not but have engendered in the respondent the legitimate expectation that if and when the NDPP was called upon to apply his mind to the matter he would give the respondent an opportunity to make representations before taking a decision to recharge the Respondent or at least inform him he was going to take a decision without affording him an opportunity to be heard. We submit that while the Court a quo held that the only implication of the NDPP's response was that it was a refusal to consider any representations [Vol 15, p1279, par 134], it was, properly interpreted, a refusal in the light of subsequent events (i.e. the NDPP indeed considering the matter and taking a decision to recharge the respondent without giving him an opportunity to make representations, despite the contents of the NDPP's letter dated 12 October 2007).
115.
We point out that it is common cause that the NDPP in October 2007 was fully aware of the Respondent's stance that in terms of S179(5)(d), it was entitled to a hearing. The October letter was, however, not a demand, but a request. If heeded, the S179(5)(d) dispute raised before Msimang J, would have been resolved and would have become academic. If refused, in clear language, there could have been little doubt as to what the Respondent's next step would have been. He would have brought an urgent application based inter alia on S179(5)(d) and the Policy to preclude the NDPP from taking a decision to prosecute or not without due compliance with S179(5)(d).
116.
It was obvious that especially with the Polokwane elections due shortly, the Respondent would have gone to Court. It was a most misleading letter if it is not read in the sense of the language used - it deprived the Respondent of his access to Court to seek to preclude such a decision taken without compliance with S179(5)(d). Clearly any attempt to seek an interdict to secure Zuma a right of prior representations would have been met with a counter that it was wholly premature with reference to Mpshe's reply "L" and a request for an adverse costs order. Courts every day hold the Prosecution and / or the Defence to representations they made and agreements they made. There is nothing esoteric or complex about it; it is simply based on the principle that the Prosecution process must be a fair one. The representation (dashed by the later decision to prosecute without even a communication to the Respondent of readiness to make it) was a clear one - your request is premature, wait till we are ready (and of course we will tell you when that is). This is especially the case given Ngcuka's statement that the NDPP must and will consider representations.
117.
Zuma's request must be seen in the light of:
(a) His assertion that S179(5)(d) applies and that he is relying on that - the 2003 decision has brought it into operation.
(b) The Msimang J Judgment that the previous decision to charge him was ill-considered ad premature. Clearly a considered careful decision to overturn the 2003 decision was called for - this is common cause (answering affidavit Vol 5, p465, par 81).
(c) The awareness of the sentiments in the case law in cases such as A G V BLOM that a hearing post a decision is no substitute for a prior hearing. This approach is echoed in S179(5)(d) - reversals of important NPA decisions at NDPP level require a process whereby the input of the Accused and other relevant parties are sought prior to the decision actually being reconsidered in a new decision making process.
(d) Zuma's insistence on political motives influencing the decision making of the NPA and especially the NDPP as evidenced by the timing and content of his dismissal by his political rival President Mbeki and the Pikoli decision. They are engaged in a bitter political battle in 2007 at this time for the political leadership of the country. Political influence in prosecutorial decisions must be avoided as a matter of law ). In short, if there is ever a time to demonstrate this and openness and fairness, this is the time.
(e) The acting NDPP is aware of the fact that Zuma has strenuously contended before Msimang J that there is no real new evidence which warranted the reversal of the Pikoli decision. In short, there were no special circumstances as envisaged by the Policy to warrant the change. This is supported by the contents of the November 2005 indictment. Zuma maintains his innocence on the charges.
(f) The NDPP Mpshe has been appointed in the place of the suspended Pikoli following a fall-out with the Government of President Mbeki as to his prosecution of Mr Selebi. He is a direct appointee of the very President with whom Zuma is engaged in a struggle for the leadership of the ANC. He chooses to simply ignore Zuma's request when, with respect, it is obvious that it should have been granted.
118.
Some time shortly after Zuma wins the political leadership of the ANC at Polokwane in mid-December, Mpshe then decides to prosecute him and announces this to the world by charging him on 28 December 2007. At no stage from October 2007 till 28 December 2007, does he invite or inform Zuma to make representations as Zuma requested. There is no explanation for this in the papers and no sound explanation seems feasible. The NPA simply does not identify the harm in or reason for not granting Zuma such an opportunity to make representations. There was none which accords with sense and fairness.
119.
In Zuma's request ("K" - Vol 4, pgs 342 - 343) he states that one of the issues he seeks to make representations on, is the manner of the investigation against him. The DSO is hardly going to provide details of any unlawful activities on its part to Mpshe. Clearly this aspect is covered by the public interest considerations which must be considered in terms of the Policy (part 4(c)).
120.
Any sensible or fair Prosecution authority would have heeded the call to be allowed to make representations. What could the Prosecution have lost if it heeded Zuma's request - absolutely nothing save that a reversal of the Ngcuka decision may have been demonstrated by the representations to have been improper - that is hardly a negative consequence for a Prosecution authority which is obliged "to act in a balanced and honest manner" and "impartially and in good faith" unaffected by the "political views" of the Accused (See Policy par 3) and "fairly".
121.
The positive consequences of doing so are legion; the most relevant in the current immediate context are:
(a) The transparency of the process and the fairness thereof would have been advanced or at the very least would have appeared to have been advanced, especially in the climate of the political motivations alleged.
(b) If successful the representations would have obviated the need for a very expensive trial, when a not guilty verdict may ultimately render this interference wholly unnecessary and unproductive.
(c) Even from a tactical point of view it could have revealed useful insight by the NPA into the Accused's defence and complaints, something the NPA, on its own version, had been intent on doing when it applied for the search warrants in August 2005.
122.
It is submitted that in these circumstances there was a clear legal obligation on the NPA to allow Zuma an opportunity to make representations before the Mpshe decision.
123.
The Appellant cites extensive case law to the effect that Courts will not on review readily set aside a decision to prosecute or not to prosecute. We have no quarrel with this as a general proposition which inherently recognizes that such decisions are reviewable.
124.
The line of English cases relied on by the NPA, most recently affirmed in CORNER HOUSE RESEARCH AND OTHERS V DIRECTOR OF THE SERIOUS FRAUD OFFICE [2008] UKHL 60 do not upset commonwealth jurisprudence from the UK and other jurisdictions to the effect that courts possess an inherent power to prevent an abuse of process and will review prosecutorial conduct on this basis.
125.
Decisions to prosecute are thus justiceable; they are subject to judicial control. They are clearly susceptible to being challenged in law as being unlawful in that they were not made in accordance with the applicable law, that they are inconsistent with the Constitution, that they offend the principle of legality or constitute an abuse of process, etc.
126.
The leading case in the United Kingdom on this issue is R V CROYDEN JUSTICES, EX PARTE DEAN [1993] 3 All ER (QBD) (DC) 129.
127.
The applicant, GEORGE DEAN, brought an application for judicial review arising from the prosecution's decision to proceed with the charges against him, notwithstanding earlier promises to the contrary if he co-operated with the investigation. He had agreed to be a prosecution witness and was then released.
128.
The court reviewed comparable commonwealth case law on the issue and found:
"In my judgment, the prosecution of a person who had received a promise, undertaking or representation from the police that he will not be prosecuted is capable of being an abuse of process." (at 137 B)
129.
The Court found that an impression had been created which was not dispelled for over five (5) weeks during which the applicant gave repeated assistance to the police and held that in those circumstances "the justices were bound to treat it as one of abuse of process." (at 137H) and quashed the charges against the applicant on the basis of it being an abuse of process.
130.
In EX PARTE DEAN, although it was argued that the abuse of process could only arise where there was delay, or manipulation or misuse of the rules of procedure, the Queen's Bench Division referred to English cases which stressed the inherent power of a court to prevent misuse of its procedure "in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people ..." (HUNTER V CHIEF CONSTABLE OF WEST MIDLANDS [1981] 3 ALL ER 727 AT 729, LORD DIPLOCK AT 536).
See also: ATTORNEY-GENERAL OF TRINIDAD AND TOBAGO AND ANOTHER V PHILLIP AND OTHERS [1994] 1 LRC, 40.
131.
The Court's power to make appropriate orders to regulate the criminal process and prevent abuses thereof, is recognised in the SA case law and in other case law systems which have the same adversarial system.
See also VAN HEERDEN V DPP 2005 (2) SACR 22 (C).
132.
In any event, our courts have asserted an inherent power to review prosecutorial conduct to prevent abuse of process and to ensure fairness in prosecutorial conduct. VAN HEERDEN V DIRECTOR OF PUBLIC PROSECUTIONS 2005 (2) SACR 22 (C); NORTH-WESTERN DENSE CONCRETE CC AND ANOTHER V DIRECTOR OF PUBLIC PROSECUTIONS (WC) 1999 (2) SACR 669 (C). The position was the same under the common law HIGHSTEAD ENTERTAINMENT (PTY) LTD T/A ‘THE CLUB' V MINISTER OF LAW AND ORDER AND OTHERS 1994 (1) SA 387 (C); AG V BLOM 1988 (4) SA 645 (A); SHIDIACK V UNION GOVERNMENT 1912 AD 642; The Constitutional requirements of legality and rationality imperatively require the same.
133.
At paragraph 20 of the NPA's written submissions this theme of no hearing necessary is developed further to submit that procedural fairness does not require that a suspect be given a hearing before a decision is taken to prosecute him. (Again, this is not the case that the respondent presented to the court a quo).
134.
In developing this theme of procedural fairness, the NPA relies on what Professor De Ville says in relation to "administrative authorities" deciding to institute civil legal proceedings. (De Ville, Judicial Review of Administrative Action in South Africa, Lexis Nexus Butterworths, (2003)). Reference is made to pages 241 to 242 of Professor De Ville's work. The more apposite exposition from Professor De Ville is that set out at pages 64 to 65 and in particular the view that:
"It is therefore submitted that, as in the case of the other exclusions in section 1 of Para, the decision to institute or continue a prosecution should be reviewable under the Constitution [section 179] and the applicable legislation [National Prosecuting Authority Act 32 of 1998] applying a deferential standard of review."
135.
In support, Professor De Ville relies on the views expressed by Currie and Klaaren (at footnote 280) who are of the view that decisions to institute or continue a prosecution may be "reviewed for legality as a direct constitutional matter".
136.
The Appellant makes much of the English case law referred to above which proclaims that an accused is not entitled to a hearing on whether he should be prosecuted and the fact that PAJA excludes a review of a decision to prosecute (but not a decision not to prosecute).
137.
The reason why a decision to prosecute does not require a hearing, is that a hearing is any event going to be held which also explains the controversial exclusion of a decision to prosecute from PAJA "... to avoid a multiplicity of hearings about the ‘merits' of criminal charges ..." as a prosecution will result in any event in a trial. See: HOEXTER p213 - 214, note 338 - 340.
138.
We submit that these considerations do not advance the NDPP's case for they are of little weight and relevance.
139.
In the first place the issue in this case revolves round the issue whether an "accused" person has the right to make representations in a review process of an earlier "final" decision to prosecute or not. There is a fundamental difference between that and an initial decision to prosecute. This is recognised in the Policy which requires special circumstances for a change and acknowledges the reliance of persons directly affected on the relative finality of the earlier decision ("Restarting"). The link with the functus officio doctrine has already been spelt out. See also: CARLSON INVESTMENTS SHARE BLOCK (PTY) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE 2001 (3) SA 210 (W) 225 D - J. Even from a logistical perspective such cases obviously constitute a minority.
140.
The decision whether to give the intended Accused a hearing should not be conflated with the decision to prosecute. Entirely different considerations apply to what are two separate decisions.
Compare: BULLOCK NO AND OTHERS v PROVINCIAL GOVERNMENT, NORTH WEST PROVINCE, AND ANOTHER 2004 (5) SA 262 (SCA), par 21.
141.
Secondly, however valid that reasoning might be in relation to the decision to prosecute, that is not the complaint herein. The complaint is about a different decision, namely the effective decision not to allow the Respondent to make representations which could or would relate also to issues which have nothing to do with the merits of the criminal trial i.e. reliance on the earlier decision, whether special circumstances are present etc. and which would not usually be raised in the trial.
142.
The Policy now recognises explicitly (Part 4(c)) the public interest component of the decision to prosecute and devotes considerable detail to it. Some of these considerations virtually invite input from an accused or would be accused as being best or uniquely placed to do so.
143.
This aspect, as opposed to the merits of the charges, does not feature as a rule in the criminal trial. The rationale of the no hearing proposition has thus considerably weakened in the current South African context.
144.
CORA HOEXTER (Administrative Law in South Africa, Juta, 2007 at pages 213-214) provides the background to the exclusion of decisions to prosecute from the ambit of PAJA (see above), from the report of the South African Law Commission which was to confine review under PAJA to decisions not to prosecute. The author is of the view (as the other authors are) that the "excluded decisions are in any event reviewable under the principle of legality and the Constitution more generally." This is supported by the case law referred to hereafter.
THE ALTERNATIVE BASIS EXCLUDED BY PAJA:
145.
It is irrelevant whether or not the NDPP's decision to prosecute is justiceable under PAJA. We have not ever contended for intervention under PAJA - the NDPP has sought to characterise the application as one under PAJA because such an application cannot be brought under PAJA. It is not for them to label the Respondent's application. If the NDPP acted contrary to the provisions of S179(5)(d) of the Constitution, his actions offend the principle of legality and must be declared invalid in terms of S172(1)(a) read with S2 of the Constitution. Similarly in respect of the alternative basis relied on for the relief sought. We submit that, in any event, the applicant's contention that the respondent's claim had to be brought under PAJA is incorrect.
146.
The Appellant contends that the Respondent cannot rely directly on S33 of the Constitution and argues that the Constitutional Court has repeatedly stated that PAJA was intended to be a codification of the rights asserted in S33.
147.
This argument is misconceived. It is correct that the Constitutional Court observed in BATO STAR FISHING (PTY) LTD V MINISTER OF ENVIRONMENTAL AFFAIRS AND OTHERS 2004 (4) SA 490 (CC), at paragraph 25 and in MINISTER OF HEALTH AND ANOTHER NO V NEW CLICKS SOUTH AFRICA (PTY) LTD AND OTHERS (TREATMENT ACTION CAMPAIGN AND ANOTHER AS AMICI CURIAE) 2006 (2) SA 311 (CC), at paragraph 95 that PAJA was intended to codify the grounds of judicial review of administrative action and was intended to "cover the field".
148.
However, the Constitutional Court has recently stated in SIDUMO AND ANOTHER V RUSTENBURG PLATINUM MINES LTD AND OTHERS 2008 (2) SA 24 (CC) that those comments must be interpreted against the qualification expressed in BATO STAR that it was not necessary at that stage to consider "causes of action for judicial review of administrative action ... do not fall within the scope of PAJA":
"[91] Nothing in s 33 of the Constitution precludes specialised legislative regulation of administrative action such as s 145 of the LRA alongside general legislation such as PAJA. Of course, any legislation giving effect to s 33 must comply with its prescripts.
[92] In Bato Star the following appears:
The provisions of s 6 divulge a clear purpose to codify the grounds of judicial review of administrative action as defined in PAJA. The cause of action for the judicial review of administrative action now ordinarily arises from PAJA, not from the common law as in the past. And the authority of PAJA to ground such causes of action rests squarely on the Constitution. It is not necessary to consider here causes of action for judicial review of administrative action that do not fall within the scope of PAJA. As PAJA gives effect to s 33 of the Constitution, matters relating to the interpretation and application of PAJA will of course be constitutional matters.
(Emphasis added. Footnote omitted.) PAJA is a codification of the common law grounds of review. It is apparent, though, that it is not regarded as the exclusive legislative basis of review.
[93] It is against this background that the following dictum in New Clicks (relying on Bato Star) is to be understood:
PAJA is the national legislation that was passed to give effect to the rights contained in s 33. It was clearly intended to be, and in substance is, a codification of these rights. It was required to cover the field and purports to do so.
(Footnote omitted.) This does not in any way detract from the reservation contained in the quoted dictum from Bato Star."
Compare also: INDEPENDENT NEWSPAPERS (PTY) LTD V MINISTER FOR INTELLIGENT SERVICES: IN RE: MASETHLA V PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND ANOTHER 2008 (5) SA 31 (CC),
See also the Court a quo's correct reasoning: Vol 15, p1247, par 65 & 66.
149.
The Court a quo thus correctly also found for the Respondent on the alternative basis.
THE ATTACK ON THE FINDINGS RE POLITICAL INTRUSION:
150.
The Respondent especially for purposes of his alternative case relied on the fact that the decisions to prosecute him took place in circumstances which suggested that political considerations and influence from his political rivals were at work and that there was, especially at the time of the Mpshe decision, significant controversy as to whether the NDPP decisions and conduct in connection therewith, were influenced or affected thereby.
151.
The Respondent did not seek to establish that the decisions were, as a matter of fact, inspired or influenced by political influence or stratagems of his political rivals, especially the Mbeki faction which controlled Government. In the founding papers such an exercise is expressly disavowed whilst at the same time reserving the right in subsequent litigation to actually raise and seek to prove the truth of these averments and inferences of political considerations actually influencing the decisions to prosecute Zuma or not. This stance was reiterated in the Respondent's heads which the Appellant saw fit to put up.
See: Vol 1, p 19, par 10.
Vol 1, p23, par 18.
Vol 1, p44, par 63.
Vol 1, p49, par 73.
Vol 1, p88, par 153 - 154.
Vol 1, p95, par 163 N.B.
Vol 12, p943, par 13(d).
152.
As stated in the papers, the NDPP had already denied it was influenced by or involved itself in any political machinations regarding the prosecution of the Respondent. The truth hereof can only be established in oral evidence; it was never the intention of either party that the current dispute should go to oral evidence . What is said in the Respondent's papers about the circumstances and allegations of political interference as opposed to what the correct inference to draw from these is, is not disputed as such. These events did occur. That is, in the Respondent's contention, sufficient to render these aspects clearly relevant.
153.
The Respondent has set out in the affidavit at Vol 16, p1389 - p1396 (paras 6 - 11 inclusive) exactly how it came about that the Court a quo had to analyze the averments of political meddling - it was left to do so with very little assistance from Counsel.
154.
In short, once the Appellant sought to strike out these averments and had a gratuitous go at the Respondent's legal representatives (at least one of which had not previously acted for him), the Court a quo had to consider and decide the applications to strike out.
155.
(a) Were these allegations relevant to the subject matter of the disputes raised in the papers? and if so:
(b) Were these allegations, even if relevant, nevertheless still vexatious, scandalous, etc. in the sense that these had no merit at all and clearly should never even have been raised at all.
156.
The averments made by Respondent were clearly relevant. Given the NPA's evidence that the mischief S179(5)(d) was designed to combat was political interference in prosecutorial decisions utilizing the office of the "new" all-embracing NDPP as the single apex official, and the provisions of the Policy, Code and Guidelines and the manner in which it was contended the NDPP conducted itself, the contrary is hardly open to question.
157.
Zuma clearly believed and believes that the decisions to prosecute him were influenced and affected by political considerations. Given the test for what qualifies as a reasonable fear of bias or prejudice, a finding that his fears are so unfounded and the allegations in question wholly fabricated, cannot be made on the papers. One illustration suffices:
The statement by then President Mbeki on dismissing Zuma as Deputy President based on the findings in the Shaik trial, that Zuma is still to have his day in Court, coupled with the Pikoli reversal of Ngcuka's decision within the week, is clearly open to a "who will rid me of this troublesome priest" construction.
158.
In respect of the second enquiry the Respondent's case was that, indeed, the mere existence of allegations of a political conspiracy or influence sufficed to negate these being scandalous or vexatious. The allegations of a political conspiracy appeared in the press and were aired by a variety of persons (of course the Respondent also made such statements and persisted in these). Indeed, the Appellant says there was a "growing perception" (by which the Appellant plainly meant a public perception) of a political conspiracy against the Respondent (Vol 8, p660, para 20). The mere fact that such allegations existed and had been aired in the press clearly had an impact on the decision whether the Respondent should be given an opportunity to make representations and whether the failure to do so was a deliberate stratagem. Obviously any Prosecution Authority which is concerned about its projected constitutional duties of impartiality, absence of favour, and transparency, and public perception of compliance therewith and the requirements of the Code and Policy, would have considered the mere existence of these allegations of political manipulation as a factor which would significantly weigh in favour of the Respondent being given an opportunity to make representations.
159.
As a further investigation as to the lack or presence of vexatiousness, the Court a quo indeed considered whether the facts and circumstances testified to, displayed some merit. It carefully considered the circumstances, materials put up, and other matters deposed to and decided that there appeared to be merit in the Respondent's averments of political interference in his prosecution. It could thus not strike out the allegations which led to the findings which the Applicant now seeks to impugn, and the State's application to strike out was dismissed. The Court found no more than that in its Judgment - that there are such circumstances and facts which give sufficient credence to the Respondent's averments of political interference that these allegations cannot be struck out, once its Judgment is read in context of the central finding at Vol 15, p1325, par 229, lines 3 - 7:
"I am not saying the political meddling is a sufficient ground on its own to secure the relief at all. That was not an issue as such in this application. What I mean is that it was legitimate of the applicant to place it before the court to evaluate his right to make representations".
See also: Vol 15, paras 196, 209, 219, 220, 238, - note the qualifications - "seem", "indicative".
160.
What the NDPP seems intent on appealing are indeed some of the subsidiary findings and even opinions of the Court a quo.
161.
In terms of S20(1) of the Supreme Court Act, No. 59 of 1959 appeals lie only against judgments or orders. If a decision or finding does not constitute a judgment or order, the decision is not appealable on any ground.
162.
It is trite that it is the judgment or order that is appealable, and that while the word "judgment" is frequently used to refer to a decision as well as the reasons therefor, the word is not used in that sense in S20(1) of the Supreme Court Act - the reasons for a decision cannot be the subject of an appeal, nor the comments and opinions of the Court a quo.
See WESTERN JOHANNESBURG RENT BOARD & ANOTHER V URSULA MANSIONS (PTY) LTD 1948 (3) S.A. 353 (A) at 354 to 355.
HOLLAND V DEYSEL 1970 (1) S.A. 90 (A) at 93E to F.
CONSTANTIA INSURANCE COMPANY LTD V NOHAMBA 1986 (3) S.A. 27 (A) at 42I to 43B (per minority judgment of Nicholas AJA) and at 35F to G (per majority judgment of Galgut AJA).
ADMINISTRATOR CAPE & ANOTHER V NTSHWAQUELA & OTHERS 1990 (1) S.A. 705 (A) at 715D to E:
"When a judgment has been delivered in Court, whether in writing or orally, the Registrar draws up a formal Order of Court which is embodied in a separate document signed by him. It is a copy of this which is served by the Sheriff. There can be an appeal only against the substantive order made by a Court, not against the reasons for judgment."
S A EAGLE VERSEKERINGSMAATSKAPPY BPK V HARFORD 1992 (2) S.A. 786 (A) at 792D.
SPECIAL INVESTIGATING UNIT V NGCINWANA & ANOTHER 2001 (4) S.A. 774 (E) at 779F.
HASSIM V COMMISSIONER SOUTH AFRICAN REVENUE SERVICE 2003 (2) S.A. 246 (SCA) at [16].
MKANGELI & OTHERS V JOUBERT & OTHERS 2001 (2) S.A. 1191 (CC) at [12]:
"The application for leave to appeal directly to this Court focuses on the finding that the Tenure Act is inconsistent with the Constitution. Appeals are brought against orders made by a Court and not against comments made in the course of the judgment."
163.
A strike out application is a stand-alone application with its own requirements for success. The principles governing factual findings in the main application, do not govern the adjudication of a strike out.
164.
The NDPP conflates the main application with its strike-out application and thus applies the wrong approach in its carping criticism of the Court. The Respondent's version is what stands on an application of PLASCON EVANS regarding the strike out.
165.
It is also not a case of the Court not apprising the NDPP of what case it has to meet. It is a case of the Court testing the case the NDPP sought to make on the striking out i.e. did the NDPP in view of the material it put up, demonstrate that the allegations were irrelevant or vexatious / scandalous. It, in the financial analysis, simply found that there was much in the circumstances put up by both sides, which precluded allegations and perceptions of political interference from being dismissed as frivolous or mere fabrications and hence the NDPP had not established the case it sought to make.
166.
A decision on a strike out is discretionary in nature : RAIL COMMUTERS' ACTION GROUP AND OTHERS v TRANSNET LTD AND OTHERS 2006 (6) SA 68 (C) 83 D - 84 B; STEPHENS v DE WET 1920 AD 279 282 - 285. Appellant must then show that in refusing the application to strike out, that no reasonable Court could have refused the application for a striking out - not that this Court would have considered another Order more appropriate or would have refrained from certain remarks.
167.
The Respondent contends that his contention that the allegations of political interference were relevant (which is the only issue raised by the NDPP in respect of these averments) is correct and that it can be based on the propositions advanced above (If a Court is left in doubt as to whether an averment is relevant, it should not be struck out (GOLDING V TORCH PRINTING & PUBLISHING CO (PTY), LTD AND OTHERS 1948 (3) SA 1067 (C) 1090)).
168.
It follows that there is no need to debate the individual findings made by the Court a quo which the NDPP impugns herein - we have pointed out that many of these findings are indeed defendable in annexure "MH1" to the opposition to the intervention application. The Respondent's case did not and does not depend on whether these findings are correct as positive findings of the individual facts (which in context they are not).
169.
In our submission it is neither necessary nor desirable to debate the findings and comments of the Court a quo which are the subject of the attack thereon by the NDPP which ignores the golden thread which runs through the Court a quo's analysis: it cannot conclude that the allegations made by the Respondent were irrelevant or simply fabrications - a conclusion we defend. If this Court requires us in oral argument to deal with the impugned findings and comments of the Court a quo, we shall do so. For the reasons set out above, we do then not address the individual findings and comments complained of by the Appellant for the above conclusion is readily supported even without such a debate.
170.
The Appeal is to be dismissed with the costs of three Counsel.
K J KEMP SC
M D C SMITHERS
A A GABRIEL
Chambers, Durban
24th November 2008.
Source: www.friendsofjz.co.za
