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[2014] ZASCA 101
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Zuma v Democratic Alliance and Others (836/2013) [2014] ZASCA 101; [2014] 4 All SA 35 (SCA) (28 August 2014)
IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 836/2013
Reportable
In
the matter between:
JACOB
GEDLEYIHLEKISA
ZUMA
.....................................................................................
Appellant
and
DEMOCRATIC
ALLIANCE
......................................................................................
First
Respondent
THE
HEAD OF THE DIRECTORATE OF SPECIAL
…....................................
Second
Respondent
OPERATIONS
THE
ACTING NATIONAL DIRECTOR OF
PUBLIC
..........................................
Third
Respondent
PROSECUTIONS
Neutral
Citation:
Zuma v DA
(836/2013)
[2014] ZASCA 101
(28 August 2014).
Coram:
Mpati P, Navsa ADP, Brand, Ponnan &
Tshiqi JJA
Heard:
15 August 2014
Delivered:
28 August 2014
Summary:
Interpretation and enforcement of order of this court in
Democratic
Alliance v Acting National Director of Public Prosecutions
(2012)
3 SA 486
(SCA) – ANDPP ordered to produce record of decision to
discontinue prosecution against appellant save for confidential
written
representations and anything that might reveal such
representations – no blanket prohibition – no specific
claim of
confidentiality by appellant despite opportunities to assert
such claims – audio recordings conceded to be compellable –
sufficient safeguards in relation to production of internal
documentation within the office of the NDPP that make up part of the
record of decision – conduct of officials of the NDPP
criticised.
ORDER
On
appeal from
: The North Gauteng High
Court, Pretoria (Mathopo J sitting as court of first instance).
The
following order is made:
1.
The appeal is dismissed with costs including the costs attendant upon
the employment of two counsel.
2.
The order of the high court is amended only to the degree reflected
in what is set out hereafter:
‘
1.
The First Respondent is directed to comply with the order of the
Supreme Court of Appeal in case no. 288/11 dated 20 March 2012
(the
SCA order), within five days of the date of this order.
2. The record to be
produced and lodged by the First Respondent with the Registrar of
this Court, in terms of the SCA order, shall
include a copy of the
electronic recordings and a transcript thereof referred to by the
First Respondent in the announcement of
the First Respondent’s
decision of 6 April 2009 as well as any internal memoranda, reports
or minutes of meetings dealing
with the contents of the recordings
and/or transcript itself, insofar as these documents do not serve to
breach the confidentiality
of the Third Respondent’s written or
oral representations.
3. With regard to
memoranda, minutes and notes of meetings, referred to by the Frist
Respondent in paragraph 26 of her answering
affidavit (the internal
documentation):
3.1
Within five days of the date of this order, the
First Respondent shall cause to be delivered to the Honourable Mr
Justice NV Hurt
(Justice Hurt) copies of the internal documentation;
3.2
On the copy of each document forming part of the
internal documentation, Justice Hurt shall mark or record that part
of the document
which he considers to reveal the contents of Third
Respondent’s written or oral representations (the
representations) to
First Respondent;
3.3
The exercise referred to in paragraph 3.2 above
shall be performed in accordance with any directives which the
Honourable Justice
Hurt may prescribe in order to fulfil his mandate;
3.4
The ruling of Justice Hurt shall be final and
binding on the parties; and
3.5
Should Justice Hurt, for whatever reason, be
unable to commence or complete the exercise referred to in this
paragraph, the Applicant
and the Third Respondent shall attempt to
reach agreement on another independent and impartial person to
replace him and, if no
agreement can be reached within five days of
Justice Hurt becoming unavailable, then the chairperson of the
General Council of
the Bar of South Africa shall be requested to
appoint such person.
4.
The First Respondent and the Third Respondent
shall pay the Applicant’s costs (including the costs of two
counsel) jointly
and severally, the one paying the other to be
absolved.’
JUDGMENT
Navsa
ADP (Mpati P, Brand, Ponnan & Tshiqi JJA concurring):
[1]
This appeal is part of a protracted litigation battle involving the
appellant, Mr Jacob Zuma, who is presently the President
of the
Republic of South Africa, the office of the National Director of
Public Prosecutions (the NDPP) and the first respondent,
the
Democratic Alliance (the DA), a registered political party and the
official opposition in our national parliament.
[1]
In the main, the lack of merit of the present appeal was conceded by
counsel on behalf of Mr Zuma, particularly in relation to
the release
of audio recordings
[2]
and
transcripts thereof in the possession of the third respondent, the
Acting National Director of Public Prosecutions (the ANDPP).
However,
it is necessary, especially in the light of the litigation referred
to above, that the history of this case culminating
in the present
appeal, and the issues that arose therein, be carefully set out and
that the concessions made in court be accurately
recorded. It is also
necessary to provide as succinctly as possible the bases for the
orders that appear at the end of this judgment.
The object of this
exercise, perhaps optimistically, is to obviate further protraction
and to expedite the litigation.
[2]
The present litigation follows upon the decision of this court in
Democratic Alliance v Acting National
Director of Public Prosecutions
2012
(3) SA 486
(SCA), and concerns the interpretation and enforcement of
the order made in that case. I shall, for the sake of convenience,
refer
to that case as the first appeal.
[3]
As noted in para 2 of the first appeal, the DA had applied in the
North Gauteng High Court for an order reviewing, correcting
and
setting aside the decision of the office of the NDPP to discontinue
the prosecution of Mr Zuma, and for a declaration that
the decision
was inconsistent with the Constitution. Thereafter, the DA required
the office of the NDPP and the Head of the Directorate
of Special
Operations to deliver to the registrar of the high court, in terms of
rule 53(1) of the Uniform Rules of Court, the
record on which the
impugned decision was based, which included representations made by
Mr Zuma as to why the prosecution should
be discontinued.
[4]
In para 3 of the judgment of the first appeal, this court dealt with
the attitude of the prosecuting authority in relation to
the record.
It noted that the prosecuting authority refused to deliver the record
on the basis that it contained the said representations,
which it
contended had been made on a confidential and without prejudice
basis, pointing out that Mr Zuma had declined to waive
the conditions
under which he had submitted his representations. Furthermore, the
office of the NDPP informed the DA that it intended
to contest the
DA’s locus standi in the review application and that it would
assert that a decision by the National Prosecuting
Authority (NPA) to
discontinue a prosecution was not reviewable. The DA was informed
that these issues would be raised in limine.
[5]
The DA responded by launching interlocutory applications in which it
sought orders directing the ANDPP to dispatch the record
of
proceedings on which the decision to discontinue the prosecution was
based, excluding the representations by Mr Zuma and directing
that
the prosecution authorities specify, by written notice, the documents
or material excluded from the record.
[6]
In resisting the interlocutory applications the ANDPP and Mr Zuma
contested the DA’s locus standi in the review application.
The
high court accepted the submission on behalf of the ANDPP that the DA
did not have a direct and substantial interest in the
decision to
discontinue the prosecution. It held, ultimately, that the DA had not
provided a sustainable basis for its contention
that it had standing
to bring the review application. Consequently, the high court
dismissed the application to compel production
of the reduced record
of the decision to discontinue the prosecution. In the first appeal,
this court, in overturning the decision
of the high court, concluded
as follows in relation to the question of the locus standi of the DA
in respect of the review application:
‘
Presently,
it follows that the DA has standing to act in its own interests, as
well as in the public interest, and is entitled to
pursue that
application to its conclusion.’
[7]
In the first appeal this court, in dealing with the reviewability of
a decision to discontinue the prosecution, restated what
is now
accepted as a legal truism, namely, that the exercise of all public
power must comply with the Constitution.
[3]
The court went on to note the concession by the ANDPP and Mr Zuma
that the decision to discontinue the prosecution was subject
to a
rule of law review, but contended that the review was a narrow one
and could be brought only on limited grounds. This court
declined an
invitation to delineate the parameters of such a review of a decision
of the NDPP.
[8]
In dealing with the production of the record and the contention that
the representations by Mr Zuma were confidential and not
subject to
disclosure this court, at para 33, said the following:
‘
There
was debate before us about what the value would be to the reviewing
court of a reduced record, namely a record without Mr
Zuma’s
representations. Concern was also expressed on behalf of Mr Zuma that
there might be material in the record of decision,
which might
adversely affect his rights and to which he might rightly object.
That concern was met by an undertaking on behalf
of the first
respondent that, in the event of this court altering the decision of
the court below so as to order the production
of the record of the
decision sought to be reviewed, the NDPP’s office would inform
Mr Zuma of its contents. Questions involving
the extent of the record
of the decision and its value to the court hearing the review
application are speculative and premature.
In the event of an order
compelling production of the record, the office of the NDPP will be
obliged to make available whatever
was before Mr Mpshe when he made
the decision to discontinue the prosecution. It will then fall to the
reviewing court to assess
its value in answering the questions posed
in the review application. If the reduced record provides an
incomplete picture it might
well have the effect of the NDPP being at
risk of not being able to justify the decision. This might be the
result of Mr Zuma’s
decision not to waive the confidentiality
of the representations made by him. On the other hand, a reduced
record might redound
to the benefit of the NDPP and Mr Zuma.’
[9]
Significantly, at para 37 of the judgment in the first appeal, this
court noted that:
‘
Without
the record a court cannot perform its constitutionally entrenched
review function, with the result that a litigant’s
right in
terms of s 34 of the Constitution to have a justiciable dispute
decided in a fair public hearing before a court with all
the issues
being ventilated, would be infringed. The DA, in its application to
compel discovery, has merely asked for an order
directing the office
of the NDPP to despatch within such time as the court may prescribe
the record of proceedings relating to
the decision to discontinue the
prosecution, excluding the written representations made on behalf of
Mr Zuma to the office of the
NDPP.’
[10]
Having held in favour of the DA on both scores, this court went on to
make the order that is at the heart of the present appeal,
the
relevant part of which reads:
‘
[3.1.3]
In the rule 6(11) application the first respondent is directed to
produce and lodge with the registrar of this court the
record of the
decision. Such record shall
exclude
the written representations made on behalf of the third respondent
and any consequent memorandum or report prepared in response
thereto,
or oral representations, if the production thereof would breach any
confidentiality attaching to the representations
(the
reduced record). The reduced record shall consist of the documents
and materials relevant to the review, including the documents
before
the first respondent when making the decision and any documents
informing such decision.
. . .
4. The . . . order
set out in para [3.1.3] above is to be complied with within 14 days
of date of this judgment.’ (My emphasis.)
[11]
Events subsequent to the order led to the litigation culminating in
the present appeal. On 12 April 2012, two days after the
expiry of
the 14 days afforded to the ANDPP to comply with this court’s
order, the State Attorney, in a letter, conveyed
to the DA’s
attorneys that:
(i) They were in the
process of preparing copies of the reduced record as indicated in the
order in the first appeal;
(ii) A list of
documents was supplied which, it was alleged, constituted the reduced
record; and
(iii) The list was
said to not be in breach of the confidentiality obligation.
[12]
The last two paragraphs of the letter bear repeating:
‘
4
Other material considered by the Acting NDPP at the time is subject
to the confidentiality obligation and therefore cannot be
disclosed –
unless it may transpire that Mr Zuma’s team may at a later
stage be willing to consent to a relaxation
of the confidentiality in
respect of particular documents or particular contents, in which
event we will advise you accordingly.
5 There are in
addition certain tape recordings which are in the process of being
transcribed, but that process has not been completed
as yet and will
take some additional time. On completion thereof, we are obliged to
give an opportunity to Mr Zuma’s legal
team to consider whether
there is any objection to disclosure of such transcripts. On
completion of that process, if there is no
objection to disclosure,
they will be made available as a supplement to the record.’
[13]
On 9 May 2012 the State Attorney wrote to the DA’s attorneys,
stating that Mr Zuma’s legal representatives required
a period
of two to three weeks to consider the transcripts referred to in the
preceding paragraph, but that they are not consenting
to the release,
pending further consultation with their client.
[14]
I interpose to state that the list of documents referred to in para
11 were supplied to the DA’s attorneys during May
2012 and that
they comprised representations that the ANDPP received from the DA
and others, attempting to persuade him not to
discontinue the
prosecution. At the end of June 2012 the DA, apparently frustrated at
no further documentation having been produced,
wrote to the State
Attorney recording the history of the matter and stating the
following:
‘
5.
A copy of the transcript of the recordings (“
the
transcript
”
)
has not been furnished. The transcript itself and any consequent
memorandum or report prepared in response thereto, are not covered
by
the limitation to the production of the record as per the order of
the SCA for the following reasons:
5.1 Firstly, the
recordings and/or the transcript could not possibly have been given
in confidence to the First Respondent because
he quoted extensively
from these recordings when announcing his decision to discontinue the
prosecution of the Third Respondent
on 6 April 2009.
5.2 Secondly, the
limitation in the SCA order only relates to “
the written
representations made on behalf of the Third Respondent and any
consequent memorandum or report prepared in response
thereto or oral
representations if the production thereof would breach any
confidentiality attaching to the representations (the
reduced
record)
”. The recordings and/or the transcript are neither
written, nor oral representations nor memorandum or report prepared
in
response thereto.
5.3 Thirdly, the
limitation in the SCA order does not cover memoranda or reports
prepared in response to oral representations but
merely in response
to the written representations.
5.4 Fourthly, to the
extent that internal NPA memoranda, reports or minutes of meetings
deal with the contents of the recordings
and/or the transcript
itself, as opposed to Third Respondent’s written or oral
representations in respect thereof, they are
not covered by the
limitation in the SCA’s order and should be produced. In other
words, the internal debate regarding the
effect of what is revealed
in the recordings on the decision on whether or not to discontinue
the prosecution, is not covered by
the limitation to the extent that
such debate does not refer to the representations themselves.
6. It is
inconceivable there are no internal NPA memoranda, reports or minutes
of meetings dealing with the contents of the recordings
and/or the
transcript itself. We accordingly call on you to produce these
documents, as well as the recordings and the transcripts
themselves
forthwith, failing which our client will take all the necessary steps
to compel compliance with the order of the SCA.
Naturally, costs will
be sought against your clients as well.’
[15] The exhortation
in the last paragraph of the letter, set out at the end of the
preceding paragraph, yielded no results. It
is common cause that
during telephone discussions in July 2012 between a specific State
Attorney and the DA’s legal representative,
the former had
indicated that the blame for the delay was attributable to Mr Zuma’s
attorney. The NDPP itself adopted a supine
attitude.
[16] This led to the
DA approaching the North Gauteng High Court for an order, inter alia,
directing that the record be produced
and lodged by the Third
Respondent with the Registrar of that Court, in terms of the SCA
order, which shall include a copy of the
electronic recording and a
transcript thereof as referred to by the Third Respondent in the
announcement of his decision on 6 April
2009, as well as any internal
memoranda, reports or minutes of meetings dealing with the contents
of the recordings and/or the
transcript itself, insofar as these
documents do not directly refer to the Third Respondent’s
written or oral representations.
In addition, the DA sought an order
that the ANDPP be held in contempt of the SCA order.
[17] The basis of
the application, as foreshadowed in the letter from the DA’s
attorneys as set out above, was that in terms
of the order in the
first appeal, a copy of the transcript of the recordings ought to
have been furnished and that the recordings
could not possibly have
been provided to the ANDPP confidentially, as that office quoted
publicly and extensively from the recordings
when announcing the
decision to discontinue the prosecution of Mr Zuma. Furthermore, it
was contended that the SCA order envisaged
an embargo only on written
representations made on behalf of Mr Zuma and any subsequent
memorandum or report in relation thereto,
if the production thereof
would breach any confidentiality attaching to the representations.
The recordings and/or transcripts,
it was submitted, were neither
written nor oral representations nor a memorandum or report related
to the representations. In addition,
it was asserted that memoranda
or reports relating to internal debate within the office of the NDPP
concerning the recordings were
not covered by any limitation
envisaged in the order in the first appeal. The DA was adamant that
internal memoranda, reports or
minutes of meetings addressing the
transcripts must exist and are susceptible to disclosure. In the
founding affidavit on behalf
of the DA the following appears:
‘
The
notion of an accused making representations to the First Respondent
“
in
confidence
”
,
which representations then lead to the discontinuation of a
prosecution, is already absurd. For the time being, the Applicant
has
elected to live with that absurdity. But the Applicant cannot accept
and will not allow the NDPP to conceal the foundation
of the
decision, i.e. the recordings and the internal debate regarding
them.’
[18] It is important
to note that the ANDPP’s answering affidavit does not adopt a
position in relation to the confidentiality
of the tapes or
transcripts. It resorts to a metaphorical shrugging of the shoulders,
and places the reason for its non-compliance
with the order of this
court in the first appeal at the door of Mr Zuma’s legal
representatives, submitting that the present
dispute was due to them
not being timeously forthcoming with a final position on the
disclosure of the tapes or the transcripts.
The NDPP’s office
assumes the position that the lack of consent to the release of the
tapes or transcripts was sufficient
to forestall compliance with the
order in the first appeal.
[19] The ANDPP
admits that internal records, including memoranda and minutes of
meetings and notes, exist and that they relate to
internal
discussions and consultations leading up to the decision to
discontinue the prosecution. The following part of the answering
affidavit is a stark revelation of the ANDPP’s attitude, dealt
with in greater detail later in this judgment:
‘
However,
those memoranda, reports, minutes and notes all arose from and deal
specifically with what was conveyed both in writing
and orally in the
representations submitted on behalf of the third respondent and on
the basis of confidentiality. Those issues
are inextricably linked
with the recordings or transcripts. Thus all these fall within the
ambit of the SCA order and are covered
by the limitation for the
production of the record.’
[20] It is necessary
to record that Mr Zuma did not file an answering affidavit in
response to the application to compel production
of the reduced
record.
[21]
Before the high court the office of the NDPP, in line with the
attitude that appears from what is set out above, informed Mathopo
J,
who heard the matter, that it would abide the court’s decision
in relation to the production of the transcripts and that
the matter
should be argued between the DA and Mr Zuma. The following is
recorded in para 13 of the high court’s judgment:
‘
During
argument counsel for the first respondent unequivocally made the
concession that the first respondent has “no view”
regarding the transcripts or recordings.’
[22]
In the high court, even though Mr Zuma had not filed an answering
affidavit, counsel on his behalf submitted that confidentiality,
as
envisaged in this court’s order in the first appeal, extended
to everything comprising representations made on Mr Zuma’s
behalf. It was contended that since the office of the NDPP did not
itself take steps to obtain the recordings but accessed them
through
the efforts of Mr Zuma, separating them from the representations
would be illogical and irrational.
[23]
In deciding the matter, Mathopo J reasoned as follows:
‘
[21]
The applicant has alleged in its papers that the transcripts are not
protected by confidentiality. The third respondent confronted
with
such serious allegation elected not to submit any evidence to gainsay
the averments. It is settled law that a bare or unsubstantiated
denial will only pass muster where there is no option available to a
respondent due, for example, to a lack of knowledge or because
nothing more can be expected from the respondent. A bare denial in
circumstances where a disputing party must, necessarily be conversant
with the facts averred and is in a position to furnish an answer or
countervailing evidence as to its truth or correctness, does
not
create a real or genuine dispute of fact. A proper answer to the
material averments under reply requires at the minimum, a
separate
and unequivocal traversal of each and every allegation which the
party seeks to contend.
[22] It should have
been obvious to the third respondent that, in the absence of any
countervailing evidence particularly since
the parties accorded
different interpretations to the SCA order, more was required to
clarify his position instead of seeking refuge
on a point of law. The
objective facts submitted by the applicant cried out for an answer,
yet the third respondent elected not
to respond. This approach is not
without consequences. The third respondent imperilled his position in
the circumstances by failing
to put up any cogent explanation as to
why he is entitled to the confidentiality.’
[24]
The following is the order made by the court below:
‘
1.
The First Respondent is directed to comply with the order of the
Supreme Court of Appeal in case no. 288/11 dated 20 March 2012
(“the
SCA order”), within five days of the date of this order.
2. The record to be
produced and lodged by the First Respondent with the Registrar of
this Court, in terms of the SCA order, shall
include a copy of the
electronic recordings and a transcript thereof referred to by the
First Respondent in the announcement of
the First Respondent’s
decision on 6 April 2009 as well as any internal memoranda, reports
or minutes of meetings dealing
with the contents of the recordings
and/or transcript itself, insofar as these documents do not serve to
breach the confidentiality
of the Third Respondent’s written or
oral representations.
3. With regard to
the memoranda, minutes and notes of meetings, referred to by the
First Respondent in paragraph 26 of her answering
affidavit (“the
internal documentation”):
3.1 within five days
of the date of this order, the First Respondent shall cause to be
delivered to the Applicant’s Cape Town
attorney Minde Schapiro
& Smith (Mr M Smith) and to the Third Respondent’s attorney
of record copies thereof;
3.2 on the copy of
each document referred to in 3.1 above, the First Respondent shall
mark or record that part of the document which
she considers to be
confidential;
3.3 save for the
purpose of consulting with counsel, the Applicant’s attorney
shall not disclose to any other party, including
the Applicant, any
part of the document in respect of which the First Respondent claims
confidentiality;
3.4 should the
Applicant dispute any claim to confidentiality and should the parties
be unable to resolve such dispute, the Applicant
shall on notice to
the Respondents and any person having an interest therein, have the
right to apply to a Judge of the North Gauteng
High Court in chambers
for a ruling on the issue;
3.5 should the
circumstances require, any of the parties shall have the right to
apply to a Judge of the North Gauteng High Court
in chambers for an
amendment to paragraphs 3.2, 3.3 and 3.4 of this order.
4. The First
Respondent and the Third Respondent shall pay the Applicant’s
costs (including the costs of two counsel) jointly
and severally, the
one paying the other to be absolved.’
[25]
The present appeal by Mr Zuma, directed against that order, is before
us with the leave of the court below.
[26]
Telescoped, the procedural and evidential problems faced by Mr Zuma
are that the ANDPP filed an answering affidavit in which,
essentially, she took no stance on the confidentiality of the
materials sought by the DA, other than the written representations
in
her possession, and further that confidentiality is not specifically
claimed by anyone in respect of any particular document
or other
materials in the possession of the office of the NDPP. In relation to
the internal memoranda, that part of the answering
affidavit referred
to in para 19 above lacks specificity and the generalisation resorted
to by the ANDPP, which will be dealt with
in greater detail in due
course, is, to say the least, disingenuous. Worryingly, much of what
the ANDPP stated in her answering
affidavit appears not to be
first-hand knowledge and seems to be based on what she was told by Mr
Mpshe, who was the Acting Director
of Public Prosecutions at the time
of the decision not to prosecute Mr Zuma. Mr Mpshe did not depose to
a confirmatory affidavit.
It will be recalled that the ANDPP decided
to abide the decision of the high court and did not make an
appearance in this court.
Thus, the party that filed an
inconsequential affidavit took no part in the argument in either
court and the party that did not
file an affidavit was the only
contestant in both. Even the letter written by Mr Zuma’s
attorney, subsequent to the high
court application being launched by
the DA, is worthless. It is necessary to quote it in full:
‘
We
refer to the Application to Compel as well as the request received
from the Democratic Alliance regarding the production of the
record
and respond thereto as follows:
1.
The Order of the court (“
the
Order”
of the SCA) relates to the
production of the reduced documentary record qualified as it was by
the exclusions set out therein. In
the interest of precision we set
out the wording hereafter.
2.
Consequently, any record which breaches such
confidentiality in the absence of a waiver or consent would not be in
accordance with
the Order.
3.
Our instructions are neither to consent nor waive
the confidentiality provisions which underscore the representations
made. The
motivation for such confidentiality was well founded and
has not dissipated with the passage of time. This principle of
confidentiality
is, self-evidently, recognised as valid by all the
parties.
4.
The Record of the Decision would obviously be only
that information and documents relevant thereto. These cannot extend
beyond what
was brought to the attention of the acting NDPP.
5.
His decision would obviously include past
subjective knowledge of the Zuma prosecution and investigation
(including the Court papers
of the past litigation), as well as
(oral) reports to him regarding the merits of the charges and of the
matter raised in the representations.
6.
It is clear that the Order envisages that only the
documentary portions (that is what portions exist in written,
including electronic,
format) of the above Record be produced.
7.
It is from such documentary Record that the
representations (written and oral) and whatever documentary materials
were generated
or established as a result of the contents thereof,
are to be excluded. That stripped down version is what equates to the
Reduced
Record.
8.
We quote the paragraph from the Order:
“
In
the Rule 6(11) application the first respondent is directed to
produce and lodge with the Registrar of this Court the record
of the
decision.
Such
record shall exclude the written representations made on behalf of
the third respondent and any consequent memorandum or report
prepared
in response thereto or oral representations if the production thereof
would breach any confidentiality attaching to the
representations
(the reduced record)
.
The reduced record shall consist of the documents and materials
relevant to the review, including the documents before the first
respondent when making the decision and
any
documents informing such decision
.”
(our
underlining).
9.
We respectfully point out that the Reduced Record
is simply there to assist in the supplementation of the founding
papers should
the Democratic Alliance so consider fit. This does not
preclude the Respondents from explaining the decision in answer, the
Reduced
Record is clearly not a reflection of (all) material on which
the decision was based.
May we request that
we have sight of any further documents which constitute the reduced
record before their production to the Applicants.
That was clearly
the tenor of the arrangement between the parties.’
[27]
As can be seen from what is set out above the litigation that led up
to the order of this court in the first appeal was conducted
on the
basis of what appears to be a reluctant acceptance by the DA of the
confidential nature of representations to a prosecuting
authority in
relation to a pending prosecution. Thankfully, this is not an issue
that is required to be addressed in this appeal.
There will in
future, no doubt, be litigation about whether such representations
can be considered to be confidential, particularly
in an era of
prosecutorial accountability. If that question is answered in the
affirmative the parameters of confidentiality might
have to be
explored and may include a consideration that, in all probability,
representations that lead to decisions not to persist
in a
prosecution must of necessity be exculpatory and therefore
non-prejudicial. This aspect, however, need detain us no further.
[28]
At the commencement of proceedings before us, counsel on behalf of Mr
Zuma was constrained to accept that what is set out in
the preceding
paragraphs is an abject lesson on how not to conduct opposing
litigation. Oftentimes, misguided unsuccessful litigants
criticise
the courts in which they appeared, rather than being introspective
about the litigation choices made by them or by their
advisers. In
the present case, counsel for Mr Zuma, acting in the best traditions
of the legal profession, recognised that the
fault lay with the
manner in which the litigation was conducted.
[29]
Initially, counsel on behalf of Mr Zuma repeated the argument made in
the high court, set out in para 22 above, namely that
the audio
recordings were an integral part of the representations made by Mr
Zuma and therefore fell within the confidentiality
‘prohibition’.
When asked to identify within the record the factual foundation for
this proposition, he experienced
great difficulty. First, he could
find no substantiation in the affidavit filed on behalf of the ANDPP.
Second, he sought, rather
desperately, to rely on statements in the
DA’s replying affidavit, which as he ultimately conceded
contained no admissible
evidence in his favour. If anything, the DA’s
replying affidavit expressly resists the notion that the recordings
formed
part of the confidential written representations. When faced
with this intractable problem, counsel for Mr Zuma ultimately
conceded,
without qualification, that this meant he had no case
against the release by the ANDPP of the audio recordings, and a
transcript
thereof.
[30]
It is important to note the following in relation to the audio
recordings. First, if regard is had to the highlighted part
of para
3.1.3 of the order in the first appeal, set out in para 10 above, the
audio recordings do not constitute written representations.
It
appears, as best as can be gleaned from the first appeal and the
record in the present matter, that Mr Zuma gave the office
of the
NDPP ‘access’ to the audio recordings. In the two
paragraphs quoted from the letter written by the State Attorney
after
the first appeal, referred to in para 11 above, it is clear that the
ANDPP herself saw them as distinct from the written
representations.
Second, the audio recordings came into existence long before Mr Zuma
made his representations. Third, it was accepted
by counsel for Mr
Zuma that the gist of those recordings, namely that they contained a
discussion involving the office of the NDPP
indicating that the
decision to prosecute Mr Zuma was politically inspired and
constituted an abuse of power, was made public in
2009 by Mr Mpshe.
That appears to put paid to any suggestion that they were subject to
confidentiality. Fourth, it was accepted
on behalf of Mr Zuma, as
reflected in the public statement made by Mr Mpshe, which was an
annexure to the DA’s replying affidavits,
that the office of
the NDPP sought and obtained verification of the authenticity of the
audio recordings from the National Intelligence
Agency (NIA) and a
copy thereof existed in the hands of the NIA, which made it available
to the office of the NDPP. The NIA declassified
the information and
if any privilege at all attached to the audio recordings, it may be
that it could only be claimed by the NIA.
[31]
Importantly, the audio recordings cannot by any stretch of the
imagination, or by a process of deduction, be said to reveal
Mr
Zuma’s confidential representations, the prevention of which
was the object of the order of this court in the first appeal.
Put
simply, a reading of para 3.1.3 of the order in the first appeal, for
all the reasons set out in this and the two preceding
paragraphs,
dictates that the audio recordings be produced as conceded on behalf
of Mr Zuma.
[32]
That brings us to the second part of the order of the court below
(para 3 of that order) which relates to documentation admittedly
in
the hands of the office of the NDPP and which are referred to in para
26 of the answering affidavit in the present case:
‘
Further
the NPA confirms that the contents of the conversations that had been
intercepted and were transcribed were indeed dealt
with in the
memoranda, minutes and notes of meetings etc, by officials of the NPA
in the process of internal discussion and consultation
leading up to
the decision by Adv Mpshe.’
[33]
The stance adopted by the office of the NDPP is set out in para 27 of
the answering affidavit and appears in para 19 above.
For the sake of
convenience it is repeated:
‘
However,
those memoranda, reports, minutes and notes all arose from and deal
specifically with what was conveyed both in writing
and orally in the
representations submitted on behalf of the third respondent and on
the basis of confidentiality. Those issues
are inextricably linked
with the recordings or transcripts. Thus all these fall within the
ambit of the SCA order and are covered
by the limitation for the
production of the record.’
[34]
The court below, in dealing with the documentation referred to,
stated the following (at para 38):
‘
It
would seem to me that the position adopted by the third respondent is
that the SCA order envisaged a blanket prohibition of the
disclosure
of the memoranda, minutes or notes, reports etc, despite the fact
that no legal claim of confidentiality has been asserted
by the third
respondent.’
[35]
At para 40 of the judgment of the high court, in line with what is
stated at para 37 of the judgment of the first appeal (set
out in
para 9 above), the following is stated:
‘
The
first respondent, as an organ of state, has a duty to prosecute
without fear, favour or prejudice by upholding the rule of law
and
the principle of legality. It is also a constitutional body with a
public interest duty. It behoves its officials to operate
with
transparency and accountability. The first respondent has a duty to
explain to the citizenry why and how Mpshe arrived at
the decision to
quash the criminal charges against the third respondent. In pursuance
of its constitutional obligations it is incumbent
upon the first
respondent to pass the rationality test and inform the public why it
quashed the charges. In my view, the converse
would make the public
lose confidence in the office of the NDPP. The documents, sought by
the applicant, will assist in enquiring
into the rationality of the
decision taken by Mpshe. It cannot simply be said that all the
documents submitted, whether oral or
written, are covered by
privilege. That would amount to stretching the duty of privilege
beyond the realms of common sense and
logic.’
[36]
The high court rightly concluded that the order of this court in the
first appeal did not envisage a blanket prohibition of
disclosure and
that it excluded only matters that Mr Zuma could rightly consider
confidential. The high court reasoned that absent
specificity in
relation to claims of privilege, there is an obligation to disclose.
In order to protect legitimate claims of confidentiality
by framing
an appropriate order, the high court relied on the decision of this
court in
Tetra Mobile Radio (Pty) Ltd v
MEC, Department of Works
2008 (1) SA
438
(SCA). At para 14 of that case, this court was concerned with
achieving a balance between the rights of access to documentation
and
confidentiality. Mathopo J accordingly made the order as quoted in
para 24 above.
[37
Before us, counsel on behalf of Mr Zuma, without any vigour,
submitted that the order by Mathopo J was inadequate to protect
Mr
Zuma’s confidentiality rights. His primary objection appeared
to be to the release of the documentation to the DA’s
attorney,
as envisaged in the order of Mathopo J. As best as could be
discerned, the submission appeared to be that there would
be enormous
pressure and stresses brought to bear on the DA’s attorney
which might lead to a disclosure in the public domain.
It was put to
counsel that an officer of the court has ethical and legal
obligations, the breach of which would be upon pain of
professional
and criminal sanction, and that that in itself was sufficient
protection. His response was that it was preferable
that the parties
agree upon a senior counsel to whom the documents would be released
and that he was agreeable to that person’s
decision regarding
confidentiality being final and binding. Consequently, the parties
undertook to reach agreement in this regard
and to report to this
court within a week. Beyond this and the other submission referred to
in this paragraph, there was no effective,
or indeed any other,
argument in relation to the second part of the order made by Mathopo
J.
[38]
I can detect no flaw in the reasoning of the court below leading to
the second part of the order. The office of the NDPP must
engender
public confidence. In
Democratic
Alliance v President of the RSA
2012
(1) SA 417
(SCA) this court quoted, amongst others, the Privy Council
which, in
Sharma
v Brown-Antoine and Others
[2006] UKPC 57
;
[2007]
1 WLR 780
(PC), said, with reference to prosecutorial independence,
that the maintenance of public confidence in the administration of
justice
required that it be, and is seen to be, even-handed. The
Supreme Court of the United States of America, in
Imbler
v Pachtman, District Attorney
[1976] USSC 26
;
424
US 409
(1976), spoke of the fearless and impartial policy which
should characterise the prosecutorial service and ‘the
independence
of judgment required by his public trust’. The
Constitutional Court in the Certification judgment
[4]
dealt with the independence of a prosecuting authority as follows
(para 146):
‘
[Section]
179(4) provides that the national legislation
must
ensure
that
the prosecuting authority exercises its functions without fear,
favour or prejudice. There is accordingly a constitutional
guarantee
of independence, and any legislation or executive action inconsistent
therewith would be subject to constitutional control
by the courts.
In the circumstances, the objection to [s] 179 must be rejected.’
[39]
It is to achieve and promote the objectives in the preceding
paragraphs that the order of this court in the first appeal and
the
second part of the order of the court below are directed.
[40]
As undertaken, the parties reported to this court within a week
concerning their discussions and attempts to reach agreement
about a
suitable senior counsel or retired judge to be the final arbiter of
confidentiality. They reached agreement concerning
an order to
replace the second part of the order made by the court below. During
argument before us, we were assured that the parties
were agreed that
there should now be finality and it was in that spirit that the
agreement was reached. The order in substitution
of the second part
of the order of the court below as it appears hereafter in the main
follows the agreement reached by the parties.
[41]
One remaining aspect requires to be addressed, albeit briefly. As
recently as April this year, this court in
National
Director of Public Prosecutions v Freedom Under Law
2014
(4) SA 298
(SCA) criticised the office of the NDPP for being less
than candid and forthcoming.
[5]
In the present case, the then ANDPP, Ms Jiba, provided an ‘opposing’
affidavit in generalised, hearsay and almost meaningless
terms.
Affidavits from people who had first-hand knowledge of the relevant
facts were conspicuously absent. Furthermore, it is
to be decried
that an important constitutional institution such as the office of
the NDPP is loath to take an independent view
about confidentiality,
or otherwise, of documents and other materials within its possession,
particularly in the face of an order
of this court. Its lack of
interest in being of assistance to either the high court or this
court is baffling. It is equally lamentable
that the office of the
NDPP took no steps before the commencement of litigation in the
present case to place the legal representatives
of Mr Zuma on terms
in a manner that would have ensured either a definitive response by
the latter or a decision by the NPA on
the release of the documents
and material sought by the DA. This conduct is not worthy of the
office of the NDPP. Such conduct
undermines the esteem in which the
office of the NDPP ought to be held by the citizenry of this country.
[42]
The following order is made:
1.
The appeal is dismissed with costs including the costs attendant upon
the employment of two counsel.
2.
The order of the high court is amended only to the degree reflected
in what is set out hereafter:
‘
1.
The First Respondent is directed to comply with the order of the
Supreme Court of Appeal in case no. 288/11 dated 20 March 2012
(the
SCA order), within five days of the date of this order.
2. The record to be
produced and lodged by the First Respondent with the Registrar of
this Court, in terms of the SCA order, shall
include a copy of the
electronic recordings and a transcript thereof referred to by the
First Respondent in the announcement of
the First Respondent’s
decision of 6 April 2009 as well as any internal memoranda, reports
or minutes of meetings dealing
with the contents of the recordings
and/or transcript itself, insofar as these documents do not serve to
breach the confidentiality
of the Third Respondent’s written or
oral representations.
3. With regard to
memoranda, minutes and notes of meetings, referred to by the Frist
Respondent in paragraph 26 of her answering
affidavit (the internal
documentation):
3.1
Within five days of the date of this order, the
First Respondent shall cause to be delivered to the Honourable Mr
Justice NV Hurt
(Justice Hurt) copies of the internal documentation;
3.2
On the copy of each document forming part of the
internal documentation, Justice Hurt shall mark or record that part
of the document
which he considers to reveal the contents of Third
Respondent’s written or oral representations (the
representations) to
First Respondent;
3.3
The exercise referred to in paragraph 3.2 above
shall be performed in accordance with any directives which the
Honourable Justice
Hurt may prescribe in order to fulfil his mandate;
3.4
The ruling of Justice Hurt shall be final and
binding on the parties; and
3.5
Should Justice Hurt, for whatever reason, be
unable to commence or complete the exercise referred to in this
paragraph, the Applicant
and the Third Respondent shall attempt to
reach agreement on another independent and impartial person to
replace him and, if no
agreement can be reached within five days of
Justice Hurt becoming unavailable, then the chairperson of the
General Council of
the Bar of South Africa shall be requested to
appoint such person.
4. The First
Respondent and the Third Respondent shall pay the Applicant’s
costs (including the costs of two counsel) jointly
and severally, the
one paying the other to be absolved.’
________________________
MS
NAVSA
ACTING DEPUTY
PRESIDENT
APPEARANCES:
FOR
APPELLANT: Adv. K J Kemp S.C. (with him J A S Goldstone)
Instructed
by:
Hulley
& Associates Inc., Sandown
Honey
Attorneys, Bloemfontein
FOR
RESPONDENT: Adv. S P Rosenberg S.C. (with him H J de Waal)
Instructed
by
Minde
Schapiro & Smith Inc, Cape Town
Symington
& de Kok, Bloemfontein
[1]
See
NDPP
v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) fn 2 and the cases there cited.
[2]
Referred
to during the litigation and in different parts of the record as
electronic recordings.
[3]
See
para 27 and the authorities cited thereafter.
[4]
Ex
parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa
,
1996
1996
(4) SA 744 (CC) (1996 (10) BCLR 1253 (CC)).
[5]
See
paras 37 to 41.