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[2011] ZAGPPHC 57
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Democratic Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2011] ZAGPPHC 57 (22 February 2011)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE No: 19577/09
DATE:22/02/2011
In
the matter between:
DEMOCRATIC
ALLIANCE
.......................................................................................
APPLICANT
And
THE
ACTING NATIONAL DIRECTOR
OF
PUBLIC
PROSECUTIONS
................................................................
FIRST
RESPONDENT
THE
HEAD OF THE DIRECTORATE
OF
SPECIAL
OPERATIONS
..............................................................
SECOND
RESPONDENT
JACOB
GEDLEYIHLEKISA
ZUMA
.........................................................
THIRD
RESPONDENT
And
RICHARD
MICHAEL MOBERLY
YOUNG
.......................................................................................
FIRST
INTERVENING PARTY
CCII
SYSTEMS (PROPRIETARY)
LIMITED
.................................................................................
SECOND
INTERVENING PARTY
JUDGMENT
Ranchod J,
Introduction
[1]
In April, 2009 the first respondent ('the NDPP') made public his
decision ('the decision') to discontinue the criminal prosecution
of
the third respondent relating to alleged crimes of corruption which
had been instituted and contained in an indictment of 27
December,
2007. By the time the NDPP's decision was made, the criminal
proceedings in respect of the third respondent had been
pending for a
long time.
[2]
The history of the matter relating to the prosecution of the third
respondent has been set out in various affidavits filed in
several
Court proceedings before the High Court, Supreme Court of Appeal and
Constitutional Court and are reflected in, inter alia,
the following
decisions:
2.1
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA); and
2.2
Thint (Pty) Ltd v National Director of Public Prosecutions and
others; Zuma v National Director of Public Prosecutions and others

2009 (1) SA (CC).
[3]
The Applicant ('the DA') was unhappy about the first respondent's
decision to discontinue the criminal prosecution of the third

respondent and launched an application in this Court for the review
and correcting or setting aside of the decision. The review

application is stated to be brought under the Promotion of
Administrative Justice Act 3 of 2000 ('PAJA') and sections 1(c) and

33 of the Constitution of the Republic of South Africa, 1996.
[4]
Applicant thereafter requested the 1
st
and 3
rd
respondents to deliver to Registrar of this Court, in terms of Rule
53(1) of the Uniform Rules of Court the record of the proceedings

(the record) pursuant to which the first respondent's decision was
taken.
[5]
The first respondent informed the applicant that he could not do so
as the record contained written and oral submissions made
by or on
behalf of third respondent on a confidential as well as "without
prejudice" basis. First respondent said he
would require third
respondent's consent. The State Attorney (acting for the first
respondent) wrote to third respondent's legal
representatives asking
them to state in writing whether the third respondent would be
prepared to waive the confidentiality and
"without prejudice"
conditions, alternatively whether third respondent would be prepared
to permit filing of the record
subject to suitable written
confidentiality undertakings being furnished by the applicant's legal
representative. Third respondent
refused to waive the conditions nor
did he agree to the filing of the record subject to any
confidentiality undertakings.
[6]
The result is this (one of two) interlocutory application before me
in terms of Rule 6(11). It was launched by the applicant
on 27 May,
2009. Applicant seeks the following order:
"1. Directing the
first respondent to dispatch, within such time as this Honourable
Court may prescribe, the record of the
proceedings relating to the
decision of the first respondent which forms the subject of the
review application brought by the Applicant
under the above case
number, excluding the written representations made on behalf of the
third respondent to the first respondent
and any consequent
memorandum, report or the like prepared in response thereto which
serves to breach any confidentiality attaching
to these
representations ('the reduced record');
2.
Directing the first respondent to specify, by written notice
accompanying the reduced record, the documents or material excluded

from the record;
3.
Granting the applicant leave, if it requires the first respondent to
lodge the full record, to amplify its papers accordingly
and to
re-enrol this application, any such amplification and re-enrolment to
take place not later that ten days after the reduced
record has been
filed;
4.
Giving directions for the further conduct of the main application;
5.
Granting the applicant further and/or alternative relief;
6.
Directing the first respondent to pay the costs of this application,
save in the event of opposition from any of the respondents,
in which
case costs are to be paid by the first respondent and any other
respondent opposing this application, on a joint and several
bases."
[7]
Two days later, on 29 May, 2009 the first and second intervening
parties ('Mr Young' and 'CGI') brought an interlocutory application

for leave to intervene as second and third applicants in the review
application. I deal with that application later on herein.
[8]
This Court (per Legodi J) made an order directing how, inter alia,
the two interlocutory applications were to be dealt with.
[9]
Pursuant to the order, the first respondent filed an answering
affidavit in the interlocutory application for the reduced record
and
raised certain in limine matters. The Applicant thereafter filed a
replying affidavit.
[10]
In the main application (for review) only the DA (as applicant) has
filed its founding affidavit. No answering or replying
affidavits
have been filed as the interlocutory application was launched when
first respondent failed to file the complete record
of the
proceedings sought to be reviewed. As I said, the interlocutory
application is for an order compelling the first respondent
to file a
reduced record which is to exclude the written and oral
representations made by the third respondent. And it is at this

stage, in the interlocutory application, that first respondent has
raised the points in limine.
[11]
The in limine matters raised by first respondent are the following:
11.1. the lack of locus
standi on the part of the DA, Mr Young and CCII to seek the review
and setting aside of the NDPP's decision;
11.2.
the NDPP's decision does not constitute administrative action that is
reviewable under PAJA;
11.3.
the Court should, even at this stage of the proceedings, exercise its
discretion against reviewing and setting aside the NDPP's
decision
even if it is shown to have been unlawful as the DA contends.
[12]
Counsel for the DA submitted that the issue of standing should be
raised in the main application as also the issues of reviewability
of
the first respondent's decision and whether a sitting president may
be prosecuted. (I will refer to the review application as
the main or
review application interchangeably in this judgment.) The latter
issue arose because the third respondent, Mr Zuma,
has since become
the President of South Africa. Mr Rosenberg, who appeared for the
Applicant, submitted that a party raising points
in limine should
file a full set of papers and plead over on the merits as well and
referred me to Standard Bank of SA Ltd. v RTS
Techniques &
Planning (PTY) Ltd
1992 (1) SA 432
(TPD) at 440. There, Daniels J
referred to Bader and Another v Weston and Another
1967 (1) SA 134
(C) at 136 where Corbett J (as he then was) stated that the practice
in application procedure requires a respondent, who wishes
to oppose
an application on the merits, to place his case on the merits before
the Court by way of affidavit.
'Having
done so, it is also open to him to take the preliminary point... I do
not think that normally it is proper for such a respondent
not to
file opposing affidavits but merely to take the preliminary point. I
say "normally" because situations may arise
where this
procedure is unexceptionable. For example, a respondent who is
suddenly and without much notice confronted with a complex

application and who would normally be entitled to a substantial
postponement to enable him to frame opposing affidavits might well
be
permitted there and then to take such a preliminary point.' Mr
Kennedy, who appeared for the first respondent, submitted that
the
Standard Bank case is authority for the point that a litigant who
raises in limine points without pleading over carries a risk
that if
the in limine points are not upheld he or she may not be allowed to
thereafter file an affidavit on the merits. That does
not apply here
where interlocutory applications are concerned. I agree.
[13]
The DA's attorneys were informed at the outset by the State Attorney
in a letter dated 24 April, 2009, about the first respondent's

concerns regarding the locus standi of the DA and whether the first
respondent's decision was reviewable.
1
The relevant portion of the letter reads:
"The
locus standi of the DA and reviewability of the decision
15.
The review application has significant implications for the
functioning of the NPA. It deals with important and complex matters

which will require extensive work on the part of the parties involved
for their proper determination.
16.
The NPA (through the NDPP) intends to dispute the locus standi of the
DA to bring the review application and to seek the relief
that it
seeks, and the reviewability of a decision to discontinue a
prosecution. These aspects are quite apart from whether the
relief is
itself competent given the ground upon which it is sought - which
relief the NDPP and the NPA will oppose, on the basis
that the
decision sought to be reviewed was taken in a lawful, fair and valid
manner, in accordance with the Constitution, applicable
legislation
and the rule of law, and on proper, rational and justifiable grounds.
17.
It would be convenient for all the parties involved, and serve the
interests of justice better, for the Court to be requested
to rule on
the issue of the DA's locus standi and the reviewability of the
decision before extensive work is undertaken and unnecessary
costs
are incurred (bearing in mind that such costs entail the expenditure
of public funds, and that the Public Finance Management
Act precludes
fruitless and wasteful expenditure).
18.
If it is found that the DA lacks locus standi, and/or that the
decision is not legally susceptible to judicial review, as the
NDPP
will contend, there will be no need to file the Record. The matter
will then come to an end.
19.
In the circumstances, the NDPP intends to raise the matter of the
DA's locus standi and the reviewability of the decision as
a
preliminary matter to be dealt with on an interlocutory basis
together with the request to the Court to sanction any
confidentiality
arrangements that the parties agree upon or to give
directions in the event that the parties fail to reach agreement on
the arrangements
to preserve confidentiality."
[14]
I am of the view that it is not necessary for all the affidavits to
be filed in the main application. The DA has filed its
founding
affidavit. The issue of locus standi and reviewability can be decided
without any further evidence. It would otherwise
be a duplication of
effort. One can compare the issue of the point in limine with that of
taking an exception where the issue raised
on exception is dealt with
even before hearing all the evidence. Mr Kennedy submitted that it
would be convenient and in the interests
of justice for the in limine
matters to be determined prior to deciding on the merits of the
applications for the reduced record
and for intervention. Although in
the normal course the in limine matters would be decided after the
exchange of all affidavits
in the main application, the circumstances
of this case are unique; there are unlikely to be any further facts
that the DA, Mr
Young and CCII can adduce that are necessary to
determine the matters raised in limine. All the relevant facts are
before the Court.
The Court is in a position to determine the matters
raised in limine prior to the exchange of all affidavits. Again, I
agree. If
the DA does not have locus standi then clearly it would
dispose of the application for a reduced record. If it were to be
left
for determination in the main application then in effect, if an
order for the reduced record were granted, and the DA's locus standi

was found to be wanting, then it would be in possession of a record
it was not entitled to.
[15]
It would, in the circumstances, only be appropriate to determine the
issue of locus standi even at this preliminary stage.
Put another
way, if the DA lacks locus standi, there would be no need for the
first respondent to produce the reduced record. The
concomitant
factors of not incurring unnecessary costs and of convenience would
be obvious.
[16]
I conclude accordingly that the preliminary issues should be dealt
with at this interlocutory stage.
[17]
I deal with both the application for a reduced record and the
application for intervention in this one judgment. However, before
I
do so, another issue raised by the DA's counsel must be dealt with.
[18]
The point raised by the DA's counsel, even before the preliminary
issues were argued, was that the respondents were in effect
seeking a
separation of issues and should have made a formal application for
that purpose. The DA would then have had the opportunity
to oppose
it. Mr Rosenberg referred to Pharmaceutical Society of South Africa
and Others v Tshabala-Msimang and Another NNO; New
Clicks South
Africa (PTY) Ltd v Minister of Health and Another
2005 (3) SA 283
at
252 paras [15] and [16] in support of his submissions. Mr Kennedy
submitted that these cases dealt with separation of issues
on a
piece-meal basis. They were not relevant here, again because these
matters before me were interlocutory applications and it
cannot be
said that the main application is being dealt with on a piece-meal
basis.
Locus standi
and the
other preliminary points raised were not separate issues. They were
not confined to the main applications for both the reduced
record and
intervention by Mr Young and CCII. In my view, it is not necessary
for the respondents to seek a formal separation of
issues. The DA's
submissions in this regard are misplaced.
LOCUS
STANDI OF THE APPLICANT
[19]
The Applicant bears the onus of proving that it has the necessary
standing. It must appear from the allegations in the founding

affidavit ( Eagles Landing Body Corporate v Molewa NO and others
2003
(1) SA 412
(T) para 36). The Applicant must have sufficient interest
in the relief claimed which must be based upon a legally enforceable
right.
2
[20]
The DA's counsel's submissions on the issue of standing were
two-pronged, namely, the DA's standing to enforce compliance with
the
rule of law (a reliance on section 1 (c) of the Constitution which
provides for supremacy of the Constitution and the Rule
of law) and,
in the alternative, the standing of the DA under section 38 of the
Constitution. For the latter ground
the
DA claims to have standing on the following basis:
“
16.
In bringing this application, the DA acts:
16.1 In its own interests
and the interests of its members and supporters (in terms of sections
38(a) and (e) of the Constitution,
who all have an interest in the
State acting lawfully and in accordance with the constitutional and
statutory requirements; and
16.2
In the public interest (in terms of section 38(d) of the
Constitution)."
I
will revert to this ground for standing later on in this judgment.
[21]
In paragraph 13 of its founding affidavit in the review application
the DA contends that the NDPP's decision can be reviewed
for
non-compliance with section 1(c) of the Constitution. The first
respondent accepts the contention but, he says, the DA, Mr
Young and
CCII lack standing to bring such a review based on section 1(c) in
the circumstances of this case. Furthermore, says
first respondent,
on the facts of this case, the Court should exercise its discretion
against granting the remedy of review even
in terms of section 1(c)
of the Constitution.
[22]
The DA says the third respondent's alleged crimes of corruption are
crimes against the public. He is alleged to have provided
political
patronage and protection for financial reward. Every South African
would accordingly be entitled to enforce compliance
with the rule of
law since every South African is affected by crimes of this kind.
This is in itself sufficient to confer standing
on the applicant.
[23]
The DA further contends that because it made submissions to the first
respondent regarding the possible decision to discontinue
the
prosecution of the third respondent it has a direct and personal
interest in the outcome of those representations.
[24]
On the first ground it was submitted that in Kruger v President of
the Republic of South Africa and others
[2008] ZACC 17
;
2009 (1) SA 417
(cc) at par
[22] and [23] it was held by the Constitutional Court that a generous
approach should be adopted to the determination
of an applicant's
standing in matters where compliance with the rule of law is sought
to be enforced. In that case the Constitutional
Court held section 38
of the Constitution did not apply because the case did not concern a
challenge based on a fundamental right
in Chapter 2 of the
Constitution (Kruger. par 23 at 428c). The Court then went on to say
it must adopt a generous approach to standing,
and then clarified
what this generous approach meant. It said, at para 24 that it meant
'an expanded understanding of what constitutes
a
direct and
personal interest
(emphasis added).' The DA's submissions
overlook the latter aspect that Skweyiya J was referring to. That
decision did not, in
my respectful view, do away with the requirement
for showing a 'direct and personal interest'.
[25]
First respondent's counsel submits that as a political party the DA
does not have a direct and personal interest in the NDPP's
decision
not to prosecute President Zuma. I agree. Whatever general interest
it might have is no different from that of any member
of the public
in South Africa. It would be wrong on legal principle to contend that
all members of the public in South Africa have
a direct and personal
interest sufficient to clothe them with standing to seek the review
and setting aside of the NDPP's decision.
I do not think every member
of the public in South Africa can demonstrate, on the facts of this
case, that the decision to discontinue
the prosecution of President
Zuma has a direct effect on any of their rights - even in the
expanded sense in which the Constitutional
Court construed direct and
personal interest in the Kruger case.
[26]
The DA's counsel accepted in their written heads of argument that the
DA did not make it's representations in terms of section
179(5)(d) of
the Constitution. The sub-section provides -
"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.
(Hi)
Any other person or party whom the National Director considers to be
relevant."
The
representations were, in the circumstances, not made pursuant to any
legislative or constitutional entitlement on the part of
the DA to
make them.
STANDING
UNDER PAJA
[27]
As I said earlier, the DA says it brings the main Application in
terms of PAJA
3
as well as sections 1(c) and 33 of the Constitution.
[28]
Section 6(1) of PAJA provides that 'any person may institute
proceedings in a court or a tribunal for the judicial review of

administrative action.
[29]
The phrase 'any person' in section 6(1) of PAJA does not mean that
any person may challenge any unlawful administrative action
purely as
a member of the public - even if such a person is completely
unconnected with the administrative action and unaffected
by it in
his or her rights. More is required.
[30]
The DA says in its founding affidavit:
"Even
if the NDPP's decision is not "administrative action" as
defined in PAJA it is administrative action as contemplated
in
section 33 of the Constitution." In my respectful view, for
purposes of a review under PAJA the legal standing of the DA
to
review the NDPP's decision must be established in terms of PAJA and
not in terms of section 33 of the Constitution. The Constitutional

Court has held that PAJA covers the field and litigants cannot rely
directly on the provisions of section 33 of the Constitution
and
thereby avoid PAJA.
4
[31]
As I said, the DA would only have standing if it can prove that it
has a direct and sufficient interest in the prosecution
of the third
respondent or some legally enforceable right to assert in respect of
the prosecution, and thus the NDPP's decision
5
.
The Court set out the common law test as follows in Jacobs en
'n Ander v Waks en Andere
6
:
"Die weg is nou
gebaan vir 'n oorweging van die locus standi van die applikante. In
die algemeen beteken die vereiste van locus
standi dat iemand wat
aanspraak maak op regshulp 'n voldoende belang moet he by die
onderwerp van die geding om die hof te laat
oordeel dat sy eis in
behandeling geneem behoort te word. Dit is nie 'n tegniese begrip met
vas omlynde grense nie. Die gebruiklikste
manier waarop die vereise
beskryf word, is om te se dat 'n eiser of applikant 'n
direkte
belanp
by die aangevraagde regshulp moet he
(dit moet nie te
ver verwyderd wees nie)
; andersins word daar ook gese, na gelang
van die samehang van die feite, dat daar 'n werkiike belang moet wees
(nie abstrak of
akademies nie), of dat dit 'n teenwoordige belang
moet wees (nie hipoteties nie) - sien, in die algemeen, Cabinet of
the Transitional
Government for the Territory of South West Africa v
Eins
1988 (3) SA 369
(A) op 387J-388H, 398I-390A, en die vorige
beslissings wat bespreek word (sommige waarvan hieronder genoem sal
word). In die omstandighede
van die huidige saak is dit vera! die
vereiste van 'n
direkte belang
wat op die voorgrond staan. Wat
dit betref, is die beoordeling van die vraag of 'n litigant se belang
by die geding kwalifiseer
as 'n direkte belang, dan wel of dit te ver
verwyderd is, altyd afhanklik van die besondere feite van elke
afsonderlike geval,
en geen vaste of algemeen geldende reels kan
neergele word vir die beantwoording van die vraag nie (sien bv
Dalrymple and Others
v Colonial Treasurer
1910 TS 372
per Wessels R
op 390 in fine, en vgi Director of Education, Transvaal v McCagie and
Others
1918 AD 616
per Juta Wn AR op 627). Vorige beslissings kan
behulpsame algemene riglyne vir bepaalde soort gevalle aandui, maar
meestal het
dit weinig nut om die besondere feite van een geval te
vergelyk met die van 'n ander. Met dit in gedagte benader ek die
feite van
die onderhawige saak."
[32]
PAJA has not altered the common law requirements for standing to
review administrative action (except to the extent that PAJA
has
imposed the additional requirement that a review applicant must show
that its rights have been materially and adversely affected
by the
impugned administrative action)
7
.
In Vandenhende v Minister of Agriculture, Planning and Tourism,
Western Cape
8
the Court said the following in relation to section 24 of the Interim
constitution
9
(the right to lawful administrative action):
"Mr Grobler argues
that this provision, more particularly s 24(a) and (d), confers locus
standi on the applicant, even if he
did not enjoy it before. Now, it
seems clear to me that, in enacting this provision, the framers of
the Constitution did not intend
to clothe all and sundry with locus
stani to demand lawful, procedurally fair, justifiable administrative
action, or to demand
reasons for it: in each case the right to demand
these things is confined to those persons variously whose 'rights',
'interests'
or 'legitimate expectations' are 'affected or
threatened', as the case may be, by the administrative action
concerned, slightly
different formulations being used for the
different categories of entitlement. The Legislature is generally
presumed to be familiar
with the existing law as interpreted and
applied in the decisions of the superior courts of the Country, and
to wish to alter it
as little as possible: see Steyn Die uitleg van
Wette 5
th
ed at 97 - 8, 132. To hold the converse would be
to create a morass of uncertainty where there was previously
certainty: so that
the framers of the Constitution must be taken to
have been aware of the authorities to which I have referred and to
have sought
to bring about as few changes to the existing law as
possible as regards the locus standi of persons aggrieved by
administrative
action. ..."
10
[33]
The reasoning of the Court in Vandenhende in relation to section 24
of the Interim Constitution remains, in my respectful
view, correct
for purposes of
section
6(1) of PAJA, which gives effect to s 33 of the current Constitution.
A person seeking the review of administrative action
has to show that
his or her rights, interests or legitimate expectations have been
materially and adversely affected by the administrative
action. The
allegations made by the DA in its founding affidavit (which I have
mentioned earlier) do not show that its rights,
nor that of its
members have been materially or adversely affected, let alone that of
the broader public.
STANDING
UNDER SECTION 38 OF THE CONSTITUTION
[34]
The DA says it also relies on the broad standing provisions of
section 38 of the Constitution in respect of its challenge based
on
section 1(c) of the Constitution. Section 38 of the Constitution
provides as follows: "38 Enforcement of rights
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are -
(a)
anyone acting in their own interest;
(b) anyone acting on
behalf of another person who cannot act in their own name;
(c) anyone acting as a
member of, or in the interest of, a group or class of persons;
(d)
anyone acting in the public interest; and
(e)
an association acting in the interest of its members."
[35]
It is clear from the provisions of section 38 that it applies only in
the case of an enforcement of fundamental rights in the
Bill of
Rights. The DA's submission that it is entitled to rely on section
38, because it has alleged that sections 9 and 33 of
the Constitution
were violated by the decision cannot be sustained. Firstly, it is not
what the DA alleges in its founding affidavit
11
where it sets out section 38 as the basis for its allegation that it
has standing to bring the application for review. Section
9 deals
with the right to equality while section 33 provides for just
administrative action. Both sections state that national
legislation
must be enacted to give effect to those provisions. That has been
done by the enactment of the Promotion of Equality
and Prevention of
Unfair Discrimination Act 4 of 200 and PAJA respectively. The
Constitutional Court has held that a litigant cannot
circumvent
legislation enacted to give effect to a constitutional right by
attempting to rely directly on the constitutional right.
12
A
litigant is required to vindicate his or her rights to lawful
administrative action by recourse to PAJA. It is impermissible in
my
view for a party to rely directly on the provisions of section 33 to
establish standing to vindicate its rights under PAJA.
13
The same can be said in general about the DA's reliance on section 9
of the Constitution. It's reliance on the equality provisions
are set
out in the DA's founding affidavit as follows: "11.4 The right
to equality enjoyed by ail South Africans is infringed
(or will be
infringed) when and if a powerful and influential State official or
prominent figure in public life such as Mr Zuma
is shown to have
avoided prosecution by reason of his prominence, position and
influence." First respondent's counsel says
this is a "general
and bald allegation [and] is by no means a valid and serious
allegation of any infringement or threatened
infringement of any
particular individual's right under section 9 of the Constitution."
14
I agree. The main application is not concerned with the enforcement
of rights but the review of administrative action on the grounds
set
out in section 6 of PAJA, or on the grounds of legality in terms of
section 1(c) of the Constitution. In its heads of argument
the DA
makes it clear that the review application concerns compliance with
the rule of law.
15
[36] For purposes of
standing, the enforcement of section 1(c) of the Constitution is to
be treated in the same way as challenges
to the constitutional
validity of legislation brought on the basis that, as an abstract and
objective proposition, the legislation
in question is inconsistent
with the Constitution - as opposed to challenges based on
infringements or threatened infringements
of rights in the Bill of
Rights. A person bringing such a constitutional challenge has to show
that he or she is directly affected
by the unconstitutional
legislation. This was confirmed by Ackermann J and Chaskalson P in
Ferreira v Levin and Others.
16
They both concluded that an applicant in such circumstances has to
prove that he or she is directly affected by the unconstitutional

legislation.
17
[37]
In all the circumstances, 1 am of the view that the DA has failed to
make out a case for locus standi.
THE
APPLICATION FOR INTERVENTION
[38]
I turn then to the application for intervention by Mr Young and CCII,
the first and second intervening parties respectively.
Their counsel
(who also appeared for the DA) submitted at page 3 in the written
heads of argument that:
"2. ... the
Intervention Application should be approached on the basis that it
only calls for a decision on whether the Intervening
Parties have
standing
to challenge the First Respondents decision in review
proceedings. If so, they should be allowed to intervene.
3.
In this regard, we submit that the Intervening Parties are in the
same position as the Applicant in that:
3.1 They are members of
the public who would be affected by the crimes of political patronage
and protection for financial reward
allegedly committed by the Third
Respondent.
3.2 They also made
representations regarding the decision (footnote omitted/'. (Emphasis
added.)
[39]
Rule 12 of the Uniform Rules of Court provides:
Any person entitled to
join as a plaintiff or liable to be joined as a defendant in any
action may, on notice to all parties, at
any stage of the proceedings
apply for leave to intervene as a plaintiff or a defendant. The court
may upon such application make
such order, including any order as to
costs, and give such directions as to further procedure in the action
as to it may seem meet.'
[40]
Rule 12 is made applicable to applications, mutatis mutandis, by rule
6(14).
[41]
Mr Rosenberg for the intervening parties submits that not only do the
intervening parties have a 'sufficient interest' but
that there is
also an overwhelming public interest in the outcome of the matter and
that intervention will not result in additional
costs or delays or
any other form of prejudice to the respondents.
[42]
As is the case with the DA, Mr Young and CCII must show that they
have a direct and substantial legal interest in the outcome
of the
review application in order to succeed with their application for
intervention.
18
It must transcend a mere financial interest. The intervening parties
say in their founding affidavit (page 7):
"6.
Applicant disputes the contention on behalf of First Respondent that
it lacks standing in the main application, as will
be confirmed by it
in an affidavit of Mr Setfe which will be delivered together with
this affidavit.
Nevertheless, in order to obviate any possible
difficulties in this regard. CCII Systems and I seek to intervene as
Second and Third
Applicants
. ...(footnote omitted)"
(Emphasis added)
[43]
I accept the submissions of first respondent's counsel that an
application for intervention is to be treated as a facet of
joinder.
19
It must be clear that the real reason for the application is to
permit the applicant to air serious and real issues that cannot
be
resolved by the Court without hearing him or her. This is not the
case here. The only real reason here is to attempt to cure
any lack
of standing of the DA to bring the application for review. What the
intervening parties are in effect saying is that they
are only
intervening in case the DA's standing is found to be wanting. This
ground fails to disclose a direct and substantial interest
and
consequently fails to meet the test for intervention. Indeed, it is
not permissible, in my view, to rely on such a ground to
be admitted
as a party to the proceedings and the issues of public interest,
costs and prejudice do not arise.
[44]
However, Mr Young alleges he does have an interest in this matter. It
arises out of the South African Government's Strategic
Defence
Packages ("SDPs") armaments acquisition programme, more
commonly known as the "Arms Deal". His company,
CCII (the
second intervening party of which he is a major shareholder and sole
director) was selected by the Armaments Corporation
of South Africa
(Armscor) to provide a database for the SA Navy's then new patrol
corvettes. At some point CCII was "deselected"
and a German
consortium was selected to provide the specialised software though
his company was highly recommended by the Navy
itself. He complained
on behalf of CCII to the Public Protector, the Special Investigative
Unit, the Office of the Auditor-General
and the Investigating
Directorate for Serious Economic Offences. He says several letters
form the Public Protector confirmed receipt
of the complaints and
served to confirm his status as complainant. CCII is a co-applicant
with him to pre-empt any contention by
one or more of the respondents
that the complaint he lodged was not his but that of his company,
CCII. He concedes that CCII was
the legal entity whose interests may
have been directly affected by the de-selection of the specialized
software. There is an implicit
acceptance that he does not have any
direct and substantial interest in the prosecution of third
respondent and the NDPP's decision.
20
He implicitly accepts that it is in reality only CCII that may
arguably claim some kind of connection to the investigation and

prosecution of third respondent. But even that connection with regard
to CCII is not sufficient for purposes of the intervention

application. The fact that CCII is a separate legal entity on whose
behalf he acted, Mr Young cannot, in my view, claim to have
any legal
standing in this matter. Mr Young's assertion
21
that he was the original complainant and for that reason has a
corresponding right to the duty of a prosecutor to prosecute a matter

to its conclusion where there is merit in the charge is without
substance.
[45]
As far as CCII is concerned, the nub of the factual allegations made
by Mr Young and CCII in support of the intervention application
is
that CCII was the original complainant whose complaint led to the
investigations concerning the arms deal. They allege that
these
investigations resulted in the prosecution of Mr. Schabir Shaik.
Further investigations resulted in the prosecution of third

respondent.
22
[46]
Except for making the allegations at this level, there is no
allegation which indicates the manner in which the prosecution
of
third respondent would vindicate any rights of Mr Young or CCII, or
how it would directly affect their legal rights. Once this
is the
position, the decision to discontinue the prosecution of third
respondent could not directly affect any of their legal rights.
[47]
Furthermore, it is common cause that any complaint of a civil nature
concerning CCII and its tendering in the arms deal was
settled
between CCII and the relevant government agencies. No legal rights
that could be affected by the NDPP's decision remain
in this regard.
[48]
If Mr Young and CCII were allowed to intervene on the basis that they
were complainants would mean that every complainant in
the thousands
of cases that are withdrawn each year for various reasons would have
a right to challenge the decision of the NDPP.
This would be an
untenable situation, as I said earlier. In this regard the first
respondent says:
"12.
The NPA alone has power to institute criminal proceedings on behalf
of the State, and to carry out any necessary functions
incidental to instituting
criminal proceedings in terms of section 179(2) of the Constitution.
In this regard section 20 of the
National Prosecuting Authority Act,
32 of 1998 ('the NPA Act') provides that the power, which is
exercised on behalf of the Republic,
vests in the NPA to:
12.1
institute and conduct criminal proceedings on behalf of the State;
12.2
carry out any necessary functions incidental to instituting and
conducting such criminal proceedings; and
12.3
discontinue criminal proceedings.
13. South Africa does
not, in principle, follow a system of compulsory prosecution. The NPA
has the discretion whether or not to
institute and conduct criminal
proceedings or whether to discontinue them. It is not compelled to
institute criminal proceedings
in respect of all matters brought to
its attention irrespective of their merits, or to continue criminal
proceedings which are
instituted to their finality. The NPA sometimes
declines to prosecute in what it considers to be minor matters
because of limited
resources and so as to prioritise other matters."
[49]
As regards representation made by Mr Young to the first respondent,
the same conclusions made in relation to the DA apply.
The making of
any representations did not create any legal rights on the part of Mr
Young or CCII that would be directly affected
by the NDPP's decision.
[50]
An applicant for intervention must also show that it has a prima
facie case that it wants the Court to determine - which serves
to
demonstrate that the application is seriously made.
23
In this case Mr Young and CCII do not even attempt to demonstrate how
it is that there is a prima facie case on review. They must
fail on
this ground as well.
LOCUS
STANDI OF THE INTERVENING PARTIES
[51]
Mr Young accepts that if he and CCII do not have locus standi, they
would not be entitled to intervene as applicants. He says:
"7. I accept that
the locus standi of myself and CCII - as opposed to the locus standi
of the applicant - is a relevant question
to be determined at this
stage. If we lack locus standi, it would follow that we are not
entitled to intervene as applicants."
[52]
The application then falls to be dismissed also for lack of standing
on the part of Mr Young and CCII. The lack of standing
stems from the
same basis of a lack of any direct interest in the review and setting
aside of the NDPP's decision.
[53]
Mr Young and CCII do not purport to rely for their standing on
section 38 of the Constitution. In any event, such reliance
would
fail for substantially the same reasons as apply to the DA.
[54]
In view of the conclusion I have arrived at regarding standing of the
DA and the application for intervention I do not deem
it necessary
deal with question whether the NDPP's decision constitutes
administrative action that is reviewable under PAJA; nor
whether the
Court should, even at this stage of the proceedings, exercise its
discretion against reviewing and setting aside the
NDPP's decision
even if it is shown to have been unlawful as the DA contends.
[55]
I make the following order:
55.1
The application for a reduced record by the DA is dismissed with
costs, such costs to include the costs consequent upon the
employment
of two counsel;
55.2
The application for intervention by the intervening parties is
dismissed with costs, such costs to include the costs consequent
upon
the employment of two counsel.
Applicants Attorneys:
Edelstein Bosnian inc. Applicant's Counsel: Mr S P Rosenberg SC Mr H
J De Waal
First Respondent's
Attorneys: The State Attorney First Respondent's Counsel: Mr P
Kennedy SC
…
...........
Mr
M Chaskalson SC
…
..........
Mr
N H Maenetje
No
appearance for Second Respondent
Third
Respondent's Attorneys: Hulley & Associates Third Respondent's
Counsel: Mr K J Kemp SC Ms A A Gabriel
1
Annexure "A" to the founding affidavit in the application
for the reduced record
2
Herbstein
& Van Winsen, The Civil Practice of the High Courts of South
Africa, 5
th
Edition,p185
3
Promotion
of Administrative Justice Act 3 of 2000
4
Minister
of Health and Another v New Clicks SA (Pty) Ltd and Others
(Treatment Action Campaign and Another as
Amici
Curiae
2006
(2) SA 311
(CC) paras 96 and 97
5
Trakman
NO v Livshitz and Others
1995 (1) SA 282
(A) at 287E/F.
6
1992
(1) SA521 (A) at 533J-534E
7
PAJA
s 6(1)
, read with the definition of "administrative action".
8
2000
(4) SA 681
(C) at 694D-F.
9
Constitution
of the Republic of South Africa, 1993.
10
McDonald
and others v Minister of Minerals and Energy and others
2007 (5) SA
642
(C) para 27: an applicant must show that the decision has
adverse effects on its rights.
11
Founding
affidavit, review application para 16 p 15 at seq.
12
See
MEC for Education, Kwazulu-Natal, and Others v Pillay 2008(1) SA 474
CC at 488 para [40] and Mazibuko and Others v City of
Johannesburg
BCLR 239 CC
13
New
Clicks case
supra
14
First
respondent's heads of argument p 19 para 45.5.
15
Heads
of Argument para 42
16
1996
(1)SA 984 (CC).
17
At paras 31
el
seq
and
166-168
18
National
Director of Public Prosecutions v Zuma 2009(2) SA 277 at 308 par
[85].
19
"
Erasmus Superior Court Practice at Bl-101
20
FA
(Intervention application) paras
1
8
and 29 pp 11 and 14-15.
21
Founding
Affidavit, intervention application, para 42.
22
FA
(Intervention application) paras 34-30 pp
1
3-15.
23
Erasmus Superior Court Practice at B l -
1
03