Much of the comment on the Supreme Court of Appeal's judgment (see here) overturning Judge Chris Nicholson's ruling in the Jacob Zuma case has been on its political significance and the effect it may have on any future litigation involving Mr Zuma. Stripped of these aspects, the unanimous judgment is also significant from two constitutional aspects.

Firstly and perhaps somewhat ironically, in its fearless denunciation of the court a quo's short-comings, the judgment serves as a manifestation of the very independence it criticizes the court a quo of eroding - with particular regard to its failure to subject itself to the basic legal tenets:

• of confining its judgment to the issues before the court;
• of only deciding matters that are germane or relevant;
• of not creating new factual issues;of not making gratuitous findings against persons who were not called upon to defend themselves;
• of distinguishing between allegation, fact and suspicion and
• of respecting the proper boundaries between judicial, executive and legislative functions

Secondly, it provides an incisive analysis of section 179(5) of the Constitution and clarifies the constitutionally prescribed relationship between the National Prosecuting Authority (NPA) and specifically the National Director of Public Prosecutions (NDPP) and the Minister. Since the SCA was concerned that many of Judge Nicholson's misplaced interpretations would be considered authoritative, the Court also dealt with various common law rules. The judgment thus also offers a useful restatement of the common law governing the principle of "legitimate expectation", the requirements for "striking out" and when the interpretive tool of "reading in, reading out" is appropriate.

The essence of the case in the court a quo was a procedural challenge, by way of motion court proceedings, to the decisions by the former and acting NDPP respectively to indict Mr Zuma (the respondent) on 18 main counts of racketeering, corruption, money laundering, tax evasion and fraud. Respondent premised his challenge on the assumption that the decisions to prosecute were tantamount to a review of the earlier decision not to prosecute. As such, the NDPP was obliged in terms of section 179 (5) (d) to invite him to make representations before reviewing the earlier decision not to prosecute him. In the alternate, respondent argued that section 33 of the Constitution, gave rise to a "legitimate expectation" to be invited before any decision was taken to change the earlier decision.

Section 179(5) (d) allows the NDPP to "review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecution (DPP), and after taking representations... from ... the accused ...". The question which thus fell to be determined is whether this provision only applied to reviews of decisions of DPPs and their prosecutors, or whether it included a reconsideration by the NDPP of one of his/her own decisions. In considering thus question, the Court first contextualized the section within the Constitution, noting that the section was to be found in the section dealing with the Administration of Justice and thus did not purport to deal with rights of the accused.

The court thereafter contextualized the sub-clause within the section, which it noted established a hierarchical prosecutorial structure comprising a political appointee at the apex (NDPP) and with non-politically appointed DPPs and prosecutors below. The DPPS are accountable to the NDPP, whilst the prosecutors are in turn accountable to the DPPs. Sub-sections 5(a ) - (c) prescribe the functions of the NDPP in his/her capacity as head, whilst sub-section 5(d) deals with the procedure that must be followed in reviewing prosecutorial decisions.

The Court pointed out that in interpreting the word "review" regard could not only be had of the dictionary meaning. The latter was only a guide since the meaning of a word depended on its context. The Court thus found that in the context of sub-section 5 the power of review could only be an "apex" function,  that is the function of the head of the NPA qua head, and did not include a reconsideration of the NDPP's own decision.

In dealing with the independence of the National Prosecuting Authority (NPA) and the apparently conflicting provisions governing the relationship between the Minister and the NPA, the Court pointed out that section 179(5) of the Constitution vested prosecutorial responsibility in the hands of the NPA, whilst s 179(6) vested final responsibility for the NPA with the Minister.

The Court confirmed that what these provisions meant was that prosecutorial independence - that is the right to prosecute or to decline to prosecute or to terminate a pending prosecution remains with the NPA, but that the Minister was entitled to be informed of all prosecutions initiated or to be initiated. The Minister could not, however, instruct the NPA on whether or not to prosecute.

In considering the appellant's request to strike out the respondent's allegations of a political conspiracy to prosecute him, the Court noted that the court a quo had erroneously considered whether the impugned allegations were offensive because they insinuate that there was "political meddling", instead of whether the allegations were relevant.

The rules governing striking out allegations from affidavits are very clear. They require that allegations may be struck out if they are "scandalous, vexatious or irrelevant", provided the objecting party would be prejudiced if they were not struck out. The test for relevance was whether the allegations applied to the matter or contributed to a decision of that matter. The truth of the allegations was thus of no moment; their relevance to the merits of the case was solely what was of consequence.

As far as respondent's alternative argument of having a legitimate expectation that he would be invited to make representations is concerned, the Court reaffirmed that an expectation can only be legitimate if it is based on a practice or a clear and unambiguous representation. Since the respondent had created his own expectation based on his perception of the law, the expectation failed to be legitimate. As a decision to prosecute was not an administrative act, section 33 of the Constitution had no bearing.

Finally, in considering the interpretation of sub-clause 5(d) by the court a quo , the Court noted that the "reading in reading out" method of in interpretation had been used. Since this method was a constitutional remedy used to prevent a finding that legislation was unconstitutional, it was inappropriate to employ it,  as the case was concerned with the interpretation of the Constitution.

Where does this leave the respondent? He has already indicated that he will be appealing the finding of the SCA to the Constitutional Court. Given the clear and insightful analysis of the issues involved, and given that the judgment was unanimous, it would seem that the chances of him succeeding in overturning the ruling of the SCA would not be very strong. It will however delay the chances of proceeding with any criminal charges, most probably beyond April.

Nikki de Havilland is deputy-director of the Centre for Constitutional Rights. This article first appeared in the Centre's publication ConsAlert.