In the much talked about judgment of Supreme Court of Appeal (SCA), Judge Louis Harms found that Judge Chris Nicholson had, in his September 12 ruling on Jacob Zuma case, failed to confine his judgment to the issues before the court. Judge Harms and the other four judges unanimously decided to overrule the judgment of the lower court (see here).

Both courts have in the course of their judgments quoted and discussed section 39 (2) of the constitution which states: "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." For me this section has two meanings:

1. Indirect application of the Bill of Rights;- this means that every court, including magistrate courts, have an obligation to ensure that their judgments are on all fours with the constitution despite the fact that the accused or any other concerned person has not alleged a particular violation of his or her right.

2. Submission restraint mantra; - In order to ensure that their judgments are on kilter with the spirit, purport and objects of the Bill of Rights, courts will most often than not be obliged to look beyond the issues raised before them.

The view that courts must be able to look beyond the submissions before them is not a new one. It is a view that existed even long before our constitution as judge Nicholson correctly noted when he referred to the case of Hepworth decided by the then Appellate Division in 1928. In this case the AD held:

"A criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and judges' position in a criminal trial is not merely that of an umpire to see that the rules of the game are observed by both sides. A judge is an administrator of justice, he is not merely a figure head, he has not only to direct and control the proceedings according to recognized rules of procedure but to see that justice is done."

I think it is a shame that about 80 years after the AD and about 14 years into our democracy we are still having judgments that say it is not about justice but about what the parties have submitted or failed to submit to the courts to make a decision. In terms of section 39 of our constitution a judge who fails to deliver a judgment that is fair cannot raise the fact that the parties did not raise certain issues before him as a defence. In fact such a judge will be failing in their duty. It is my view that perhaps at this point we should be debating how best should judges, faced with the issue where facts not tendered to the court are necessary to ensure a fair decision, must deal with the matter.

The Constitutional Court must show leadership in this regard. The Constitutional Court found in the case of Mr. Zuma involving the legality of the search warrants that the NPA had proved a NEED on the affidavit when making the application for the warrants.  The Court failed to note that the NPA through its spokes person has been saying that regardless of the decision of the courts on the legality of the warrants the state was ready to proceed with or without the evidence in question. This to me means the NPA did not actually NEED the evidence in question though they might have wanted it. The NPA should have therefore used a less intrusive means to obtain the evidence.

The SCA also found that Mpshe's decision to charge Zuma was a new one and did not constitute a review because Pikoli's decision to charge Zuma came to naught when judge Msimang truck the matter off the roll. With respect, I find this reasoning fallacious because as the SCA correctly points out; when a matter is struck off the roll, trial proceedings are terminated. The decision of a Prosecutor or that of Mpshe for that matter, to prosecute does not form part of the trial proceedings. Trial proceedings begin with the serving of an indictment to the accused and when a matter is struck off the roll it means the indictment comes to naught but it does not on itself affect the decision of a prosecutor to charge the suspect.

The SCA will know better that in some cases where presiding officers have struck matters off the roll, the prosecutors have instructed the police officials to rearrest the suspect there and there, before he/she could even leave the court building. The reason they do this is because when a matter is struck off the roll, the decision of the prosecutor is not automatically affected.

My assessment of section 179 (5) (d) of the constitution is that it gives the power to make prosecutorial decisions to the Directors of Public Prosecution (DPP) and not to the National Director of Public Prosecution (NDPP). The section gives the NDPP the power to: determine prosecution policy with the Minister, to issue policy directives, to intervene in the prosecution process when policy directives are not followed and the power to review a decision whether to prosecute or not to prosecute after consulting the relevant DPP.

The word "intervene" in the section shows that the NDPP is not supposed to be involved in prosecutorial decisions, he can only intervene to ensure that policy is followed. A review process as the two courts have correctly noted is an apex function. This is further proof that if the NDPP is to review the decision to prosecute or not to prosecute he is not the one who has made that decision. The words "relevant DPP" in the section are further proof that the decision to prosecute is only intended to the DPP by the constitution.

It is therefore my conclusion that Section 22 (2) (c) of the National Prosecuting Authority Act 32 of 1998 which expressly gives the NDPP the powers to make prosecutorial decisions is ultra vires and therefore unconstitutional. If I ‘am correct in my assessment, then the failure of both the SCA and the High Court to request the parties to address them on this point is inexcusable. Judges are required by the constitution to look beyond the submissions before them in order to deliver judgments that promote the spirit, purport and objects of the Bill of Rights.

Mfana Maswanganyi is a non-practicing attorney based in Pretoria.