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[2009] ZASCA 1
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National Director of Public Prosecutions v Zuma (573/08) [2009] ZASCA 1; 2009 (2) SA 277 (SCA) ; 2009 (1) SACR 361 (SCA) ; 2009 (4) BCLR 393 (SCA) ; [2009] 2 All SA 243 (SCA) (12 January 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 573/08
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS Appellant
and
JACOB GEDLEYIHLEKISA ZUMA Respondent
(THABO MVUYELWA MBEKI and GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA
intervening)
Neutral citation:
National Director of Public Prosecutions
v Zuma
(573/08)
[2009] ZASCA 1
(12 Jan 2009)
Coram:
HARMS DP, FARLAM, PONNAN, MAYA AND CACHALIA JJA
Heard:
28 NOVEMBER 2008
Delivered:
12 JANUARY 2009
Updated:
Summary:
(1)
Criminal procedure – setting aside of
indictment – s 179 of the Constitution – consultation by National
Director of Public
Prosecutions when reviewing a prosecutorial
decision
with accused.
(2) Civil procedure – principles of deciding factual issues in
motion proceedings restated. (3) Judiciary – the
limits of judicial
decision-making restated.
ORDER
On appeal from:
High Court,
Pietermaritzburg
(Nicholson
J sitting as court of first instance).
A The appeal is upheld with costs including the costs of
three counsel.
B Paragraphs 1 to 4 of the order of the court below are
set aside and replaced with the following:
‘
1 The application is dismissed.
2 The applicant is to pay the respondent’s costs of
suit including those consequent upon the employment of three counsel.
3 On the respondent’s application to strike out,
the applicant is ordered to pay the costs on the attorney and client
scale.
4 The applicant’s application to strike out is
dismissed with costs on the attorney and client scale.’
C The application to intervene is dismissed.
JUDGMENT
HARMS DP (FARLAM, PONNAN, MAYA and CACHALIA JJA
concurring):
INTRODUCTION
[1] This is an appeal against a judgment of Nicholson J,
in which he set aside a decision by the National Director of Public
Prosecutions
(the NDPP) to indict the respondent, Mr Jacob G Zuma.
1
The appeal by the NDPP is with the leave of the court below. Mr Thabo
M Mbeki (until recently the President of the country) and
the
Government of the RSA sought leave to intervene in the appeal on the
ground that they have an interest in the appeal since
many findings
of the court below impinged on them negatively and they wish to have
the record set straight.
[2] The litigation between the NDPP and Mr Zuma has a
long and troubled history and the law reports are replete with
judgments dealing
with the matter.
2
It is accordingly unnecessary to say much by way of introduction and
a brief summary will suffice.
[3] Mr Zuma was appointed as Deputy President of the RSA
on 19 June 1999. He was, however, dismissed by Mr Mbeki during June
2005.
During December 2007, he became the president of the governing
political party, the African National Congress (the ANC), at the

expense of Mr Mbeki, the incumbent and only other candidate for that
position. It is common knowledge that subsequent to the judgment
of
the court below Mr Mbeki resigned as President of the country and
that Mr Zuma is said to be the ANC’s candidate for that
post after
the 2009 general election. Mr Zuma regards the indictment as an
impediment to his political future and the present case
is an attempt
by him to seek, on procedural grounds, closure of the criminal
proceedings.
[4] On 23 August 2003, Mr Bulelani Ngcuka, the then
NDPP, announced his intention to indict a certain Mr Schabir Shaik on
two counts
of corruption, but stated that he would not indict Mr
Zuma, who was said to have been the recipient of alleged corrupt
payments
from Mr Shaik. I shall revert to the detail of the
announcement, to which I shall refer as the Ngcuka decision. Mr Shaik
was convicted
and sentenced during June 2005,
3
and Mr Zuma, who was implicated in the judgment, was dismissed by Mr
Mbeki from the position of Deputy President as a consequence,
not (as
Mr Mbeki said) because he was guilty but (as Mr Mbeki implied) on the
theory that Caesar’s wife should be above reproach.
4
[5] A few days later, on 20 June, the newly appointed
NDPP, Mr Vusi Pikoli, announced his decision to indict Mr Zuma. (This
decision
will be referred to as the Pikoli decision.) The matter came
before Msimang J on 31 July 2006 for trial on two corruption counts

which mirrored the two Shaik corruption counts. The prosecution
applied for a postponement to complete its investigations and
finalise the indictment. Msimang J refused the postponement and
called on the prosecution to proceed with the trial. When the
prosecution
indicated that it was not ready to do so, he struck the
matter from the roll.
[6] Mr Pikoli had in the interim been suspended by Mr
Mbeki on an unrelated matter, and Mr Mokotedi Joseph Mpshe, the
acting NDPP,
decided on 27 December 2007 once again to indict Mr Zuma
(herein called the Mpshe decision). That decision was followed by an
indictment
of 87 pages with 18 main counts of racketeering,
corruption, money laundering, tax evasion and fraud. Much was based
on the same
subject matter that was dealt with in the Shaik trial
but, according to the NDPP, the facts and circumstances differed
materially
because the evidence against Mr Zuma had become more
compelling and the legal impediments to charging him had been
reduced.
[7] In the application, which is the subject of this
appeal, Mr Zuma sought an order declaring that both the Pikoli and
the Mpshe
decisions were invalid and, consequently, they were to be
set aside. Nicholson J obliged by setting aside the latter decision
(the
former having lapsed). This brought the prosecution to an end –
at least for the time being.
THE SCOPE OF THE CASE
[8] It would be naïve to pretend that we are
oblivious to the fact that Nicholson J’s judgment has had
far-reaching political
consequences and that there may be an attempt
to employ this judgment to score political points. It is accordingly
necessary to
state at the outset what the case is about as opposed to
what it is not about. An applicant is required to set out his case in
the founding affidavit. This Mr Zuma did. He asserted that his case
for the setting aside of the two decisions to prosecute him
was
premised on two bases, something he confirmed in his replying
affidavit.
[9] He relied in the main on s 179(5)(d) of the
Constitution,
5
which s 22(2)(c) of the National Prosecuting Authority Act 32 of
1998 (the NPA Act) repeats. It provides in summary that the NDPP
may
‘review’ a decision to prosecute or not to prosecute, after
consulting the ‘relevant’ Director of Public Prosecutions
(the
DPP) and after taking representations from the accused, the
complainant and any other relevant person. His case in this regard

was simple: the Pikoli and Mpshe decisions to prosecute amounted in
each instance to a review of the Ngcuka decision not to prosecute

him; they were made without his having been invited to make
representations in fulfilment of a constitutional requirement and
they were, consequently, invalid. It matters not that he was able, if
he so desired, to make representations – his complaint was
that he
had to be invited to make them.
[10] The second and alternative ground on which he
relied was that he had a legitimate expectation to be invited to make
representations
before any decision was taken to change the Ngcuka
decision. In this regard he relied principally on s 33 of the
Constitution,
which deals with just administrative action. The
expectation, according to the founding affidavit, arose from the
content of Mr
Ngcuka’s press release when he announced his decision
not to prosecute him and from some other non-contentious facts that
will
be detailed in due course.
[11] From this it is apparent that Mr Zuma’s case
depended, as far as the first ground is concerned, on an
interpretation of the
Constitution.
6
In regard to the second it depended in essence on whether s 33 of the
Constitution applied and, if so, on the meaning of the Ngcuka
press
statement. (The ultimate argument was somewhat different but does not
affect the general purport of the point now under discussion.)
These
are all legal issues based on common cause facts.
[12] Mr Zuma made it abundantly clear that he did not
wish to impugn the decisions themselves, and that his application was
not
concerned with the reasons and motives for the decisions: it
related only to the procedural requirements for making them. He
implied
that he might attack the merits of the decisions in separate
proceedings. In spite of this explicit statement of intent, Mr Zuma

introduced a large number of facts that related to the merits of the
decisions. The NDPP contended that they were irrelevant.
[13] It follows from this that, as the trial judge
recognised, ‘political meddling’ was not an issue that had to be
determined
(para 229 of his judgment). Nevertheless, a substantial
part of his judgment dealt with this question; and in the course of
this
discussion he changed the rules of the game, took his eyes off
the ball and red-carded not only players but also spectators. Lest

his judgment be considered authoritative it will be necessary to deal
with these matters.
[14] However, it must be understood that this aspect of
the judgment is not about the guilt or otherwise of Mr Zuma or
whether the
decision to prosecute him was justified. It is even less
about who should be the president of the ANC; whether the decision of
the ANC to ask Mr Mbeki to resign was warranted; or who should be the
ANC’s candidate for President in 2009. More particularly,
this
aspect of the judgment is not about whether there was political
meddling in the decision-making process. It is about whether
the
findings relating to political meddling were appropriate or could be
justified on the papers.
THE JUDICIAL FUNCTION
[15] It is crucial to provide an exposition of the
functions of a judicial officer because, for reasons that are
impossible to fathom,
the court below failed to adhere to some basic
tenets, in particular that in exercising the judicial function judges
are themselves
constrained by the law. The underlying theme of the
court’s judgment was that the judiciary is independent; that judges
are no
respecters of persons; and that they stand between the subject
and any attempted encroachments on liberties by the executive (para

161-162).
7
This commendable approach was unfortunately subverted by a failure to
confine the judgment to the issues before the court; by deciding

matters that were not germane or relevant; by creating new factual
issues; by making gratuitous findings against persons who were
not
called upon to defend themselves; by failing to distinguish between
allegation, fact and suspicion; and by transgressing the
proper
boundaries between judicial, executive and legislative functions.
[16] Judges as members of civil society are entitled to
hold views about issues of the day and they may express their views
provided
they do not compromise their judicial office. But they are
not entitled to inject their personal views into judgments or express

their political preferences. To illustrate the point I intend to
refer to some instances where the court below in my view overstepped

the limits of its authority.
[17] The ‘Society for the Protection of our
Constitution’ sought to be admitted as
amicus
curiae
, asking for an order which the court
below charitably interpreted as one for the appointment of a
commission of inquiry into the
alleged violation of Mr Zuma’s
constitutional rights. The court found, quite rightly, that it was
beyond its competence to make
such an order, but it then proceeded to
add at length that a commission of inquiry into the so-called arms
deal, which gave rise
to some of the criminal allegations against Mr
Zuma, should be appointed ‘to rid our land of this cancer that is
devouring the
body politic’ (para 33). Whether or not one agrees
with these sentiments is beside the point. The point is that those
personal
sentiments concerning a political decision were, in the
context of the judgment, unwarranted.
[18] Then there is its criticism concerning two of Mr
Mbeki’s decisions. The first concerns his dismissal of Mr Zuma as
Deputy
President in terms of s 91(2) of the Constitution (para
155-158). The second relates to his decision to stand for re-election
as
president of the ANC with the knowledge that he could not serve
another term as President of the country (para 171-173). The
propriety
and legitimacy of Mr Mbeki’s decisions were not issues in
the case and he was never called upon to justify them. These matters

are also not matters of law – they relate to purely political
questions and, once again, whether or not one agrees with the learned

judge’s sentiments is of no consequence: the findings were
gratuitous.
8
[19] The independence of the judiciary depends on the
judiciary’s respect for the limits of its powers. Even if, in the
words
of the learned judge, the judiciary forms a ‘secular
priesthood’ (para 161) this does not mean that it is entitled to
pontificate
or be judgemental especially about those who have not
been called upon to defend themselves – as said, its function is to
adjudicate
the issues between the parties to the litigation and not
extraneous issues.
JUDGING FACTS IN MOTION PROCEEDINGS
[20] I have already mentioned that the issues in this
case are primarily legal and based on common cause facts but that is
not how
the court below approached the case. Instead it applied a
novel approach to motion proceedings which, if left undisturbed, may
serve as a dangerous precedent.
[21] Benevolently interpreted it would appear that the
court, in the context of a striking out application brought by the
NDPP,
sought to determine whether the NDPP was influenced by the
executive in deciding to prosecute.
9
[22] The rule of court in question states that a court
may strike out allegations from an affidavit that are ‘scandalous,
vexatious
or irrelevant’ provided the objecting party will be
prejudiced if the allegations are not struck out (Uniform Rule r
6(15)).
At this juncture it suffices to deal with the objection to
allegations that are said to be irrelevant. The passages in Mr Zuma’s

affidavit to which the NDPP objected dealt in the main with his
allegations concerning a political conspiracy to prosecute him.
[23] The test for irrelevance is whether the allegations
do not apply to the matter in hand or do not contribute one way or
another
to a decision of that matter.
10
Inadmissible evidence is by its very nature irrelevant.
11
Mr Zuma said that he introduced the allegations to show that the
decision not to ask for his representations was deliberate and

politically motivated. Whether the failure to provide him with a
hearing was deliberate or politically motivated has nothing to
do
with his causes of action. He was, as a matter of law, either
entitled to a hearing or he was not. If he was entitled to one,
the
reason for the failure to afford him one is completely immaterial.
[24] The court below did not decide whether the
allegations were relevant or not. Instead it sought to determine
whether the allegations
were ‘offensive because they insinuate that
there is political meddling’ (para 41). To do that, it looked at
the ‘merits’
(para 43), that is, whether there was merit in the
allegations (para 238). The court accordingly analysed the
allegations (and
some of its own suppositions) to determine what
factual ‘inference’ it could draw (para 191); what ‘the most
plausible inference’
was (para 191, 206); and what ‘seemed’ to
have happened (para 196, 209). It found that it ‘was not convinced
that [Mr Zuma]
was incorrect’ (para 216), and that political
meddling could not be excluded (para 238).
[25] The court erred in its approach to striking out
applications. It is correct that relevance has to be tested with
reference
to the merits of the case but that does not mean that
relevance depends on the factual merit of the impugned allegations.
12
Whether they are true or not is of no moment; their relevance to the
merits of the case is what is of consequence. As mentioned,
the court
did not consider this question.
[26] Motion proceedings, unless concerned with interim
relief, are all about the resolution of legal issues based on common
cause
facts. Unless the circumstances are special they cannot be used
to resolve factual issues because they are not designed to determine

probabilities. It is well established under the
Plascon-Evans
rule that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant's (Mr Zuma’s) affidavits, which have been admitted by
the respondent (the NDPP), together with the facts
alleged by the
latter, justify such order. It may be different if the respondent’s
version
consists of bald or
uncreditworthy denials, raises fictitious disputes of fact, is
palpably implausible, far-fetched or so clearly
untenable that the
court is justified in rejecting them merely on the papers.
13
The court below did not have regard to these propositions and instead
decided the case on probabilities without rejecting the NDPP’s

version.
14
[27] The court below imposed an onus on the NDPP to
prove a negative. This appears from the finding that it ‘was not
convinced
that [Mr Zuma] was incorrect’ in relation to political
meddling (para 216). It reasoned that the question whether there had
been
political meddling fell within the peculiar knowledge of the
NDPP and was difficult for Mr Zuma to prove; and so, it held, less

evidence would suffice to establish a prima facie case (para
168-169).
15
This rule of evidence, namely that if the facts are peculiarly within
the knowledge of a defendant the plaintiff needs less evidence
to
establish a prima facie case, applies to trials. In motion
proceedings the question of onus does not arise and the approach
set
out in the preceding paragraph governs irrespective of where the
legal or evidential onus lies.
16
In applying the ‘rule’ the court omitted to determine whether the
NDPP had failed to adduce evidence on the particular issues;
it used
the ‘rule’ in spite of evidence to the contrary; and it did so in
instances where no answer was called for because
the allegations were
either not incorporated into the founding affidavit or were
inadmissible. Finally, the court failed to have
regard to another
principle, namely that the more serious the allegation or its
consequences, the stronger must be the evidence
before a court will
find the allegation established.
17
INDEPENDENCE OF THE NPA
18
[28] Although it is generally accepted that any
prosecution authority ought to be free from executive or political
control, this
was and is not necessarily the norm in Anglo-American
countries. It depends on the position of the Attorney-General who, in
many
countries, is a political appointee – often at ministerial
level. Nevertheless, an Attorney-General is required by convention
to
make prosecutorial decisions without regard to political
considerations and may not subject his discretionary authority to
that of government. He is also not responsible to government to
justify the exercise of his discretion because this political office

has judicial attributes.
19
[29] Locally the pre-Union position was exemplified by
Ordinance 1 of 1903 (T), which provided that the right and power of
prosecution
was ‘absolutely under [the Attorney-General’s] own
management and control’ (s 6). At the time the Attorney-General was
a
cabinet minister.
20
The South Africa Act of 1909 had a similar provision (s 139) but the
difference was that since Union Attorneys-General were civil

servants.
21
The position changed in 1926 when all powers, authorities and
functions relating to the prosecution of crimes and offences were

vested in the Minister.
22
However, in terms of a notice published at the time in the Government
Gazette the decision to prosecute or not to prosecute remained
with
the Attorneys-General and the Minister exercised an appeal or review
function only.
23
As from 1935, Attorneys-General had to exercise their authority and
perform their functions under the Criminal Procedure Act subject
to
the control and directions of the Minister who could reverse any
decision.
24
The convention, apparently, remained as set out in the mentioned
government notice.
25
[30] The independence of the Attorneys-General’s
decision-making concerning prosecutions was reinstated by the
Attorney-General
Act 92 of 1992 although the Minister had to
co-ordinate their functions and could request them for information or
a report on any
matter, and they had to submit annual reports to him
(s 5). The interim Constitution also recognised that the authority to
institute
criminal proceedings vested in the Attorneys-General.
26
[31] Section 179 of the Constitution
27
creates a single national prosecuting authority (the NPA) consisting
of a National Director, who is head of the prosecuting authority
and
a political appointee, and also DPPs and prosecutors. The NPA has the
power to institute criminal proceedings on behalf of
the State and to
carry out any necessary functions incidental thereto. Although
national legislation must ensure that the NPA exercises
its functions
without fear, favour or prejudice, the Minister must exercise final
responsibility over the NPA and the NDPP must
determine prosecution
policy with the concurrence of the Minister.
[32] Accordingly, the Constitution on the one hand vests
the prosecutorial responsibility in the NPA while, on the other, it
provides
that the Minister must exercise final responsibility over
it. These provisions may appear to conflict but, as the Namibian
Supreme
Court held in relation to comparable provisions in its
Constitution, they are not incompatible.
28
It held (I am using terms that conform with our Constitution) that
although the Minister may not instruct the NPA to prosecute
or to
decline to prosecute or to terminate a pending prosecution, the
Minister is entitled to be kept informed in respect of all

prosecutions initiated or to be initiated which might arouse public
interest or involve important aspects of legal or prosecutorial

authority.
[33] The NPA Act, the constitutionality of which is not
under attack, shows that the court below overstated the position when
it
held without qualification that ‘there should be no relationship
[between the NPA and] the Minister of Justice – certainly insofar

as his decisions to prosecute or not to prosecute anybody from the
Commissioner of Police downwards’ (para 207). (To the extent
that
the statement implies that there could be a relationship from the
Commissioner of Police upwards it was probably unintended.)
[34] The Act requires members of the prosecuting
authority to serve ‘impartially’ and exercise, carry out or
perform their powers,
duties and functions ‘in good faith and
without fear, favour or prejudice’ and subject only to the
Constitution and the law
(s 32(1)(a)).
29
It further provides that no one may interfere ‘improperly’ with
the NPA in the performance of its duties and functions (s 32(1)(b)).

(‘Improperly’ may be tautologous because interference usually
implies some or other impropriety.) It reaffirms that the Minister

must exercise final responsibility over the NPA and obliges the NDPP,
at the request of the Minister, to furnish the latter with

information or a report with regard to any case and to provide the
Minister with reasons for any decision taken (s 33(2)). More
directly
in point is s 22(2)(c), which is the counterpart of s 179(5)(d) of
the Constitution and deals with the NDPP’s review
function, read
with s 22(4)(a)(iii). The latter provision states that, in exercising
the review power to prosecute or not to prosecute,
the NDPP may
advise the Minister ‘on all matters relating to the administration
of justice’, which is hardly compatible with
the notion that there
may be no relationship between them.
[35] The court below began its discussion of the legal
issues implying in general terms that a decision to prosecute is an
administrative
action to which the
audi
principle (with its offspring the doctrine of legitimate expectation)
applies (para 47-53). This has never been the law and, as
the
Constitutional Court held, it is not the law under the Constitution
and the Promotion of Administrative Justice Act 3 of 2000
(PAJA).
30
Such a decision is not susceptible to review. There are policy
reasons for this
31
that need not be discussed because the constitutionality of the
provision of PAJA,
32
which excludes a review of a decision to prosecute,
33
is not under attack.
34
[36] This does not mean, and it was never argued
otherwise, that a failure to comply with a constitutional or
statutory requirement
to hear a party is not justiciable under the
principle of legality irrespective of whether or not PAJA applies.
35
[37] The court dealt at length with the non-contentious
principle that the NPA must not be led by political considerations
and that
ministerial responsibility over the NPA does not imply a
right to interfere with a decision to prosecute (para 88 et seq).
This,
however, does need some contextualisation. A prosecution is not
wrongful merely because it is brought for an improper purpose. It

will only be wrongful if, in addition, reasonable and probable
grounds for prosecuting are absent,
36
something not alleged by Mr Zuma and which in any event can only be
determined once criminal proceedings have been concluded.
37
The motive behind the prosecution is irrelevant because, as Schreiner
JA said in connection with arrests, the best motive does
not cure an
otherwise illegal arrest and the worst motive does not render an
otherwise legal arrest illegal.
38
The same applies to prosecutions.
39
[38] This does not, however, mean that the prosecution
may use its powers for ‘ulterior purposes’. To do so would breach
the
principle of legality. The facts in
Highstead
Entertainment (Pty) Ltd t/a ‘The Club’ v Minister of Law and
Order
40
illustrate and explain the point. The police had confiscated
machines belonging to Highstead for the purpose of charging it with

gambling offences. They were intent on confiscating further machines.
The object was not to use them as exhibits – they had enough

exhibits already – but to put Highstead out of business. In other
words, the confiscation had nothing to do with the intended

prosecution and the power to confiscate was accordingly used for a
purpose not authorised by the statute. This is what ‘ulterior

purpose’ in this context means. That is not the case before us. In
the absence of evidence that the prosecution of Mr Zuma was
not
intended to obtain a conviction the reliance on this line of
authority is misplaced as was the focus on motive.
41
[39] Courts have also interfered with decisions to
prosecute in circumstances where the prosecuting authorities had
given an undertaking
not to prosecute or had made a representation to
that effect in exchange for a plea or for co-operation.
42
The prosecuting authority has been kept to its bargain. Interesting
as the examples may be, they have no bearing on the facts before
us.
THE NGCUKA DECISION
[40] I have already mentioned that during August 2003 Mr
Ngcuka, in his capacity as NDPP, decided to prosecute Mr Shaik but
not
to prosecute Mr Zuma. He announced this decision at a press
conference in the presence of the then Minister, Dr Penuel Maduna. In

the press release Mr Ngcuka made two statements that are of
consequence to Mr Zuma’s case. The one deals with the legitimate

expectation argument, to which I shall revert under another heading.
The second statement was this:
‘
After careful consideration
in which we looked at the evidence and the facts dispassionately, we
have concluded that, whilst there
is a
prima
facie
case of
corruption against the Deputy President, our prospects of success are
not strong enough. That means that we are not sure
if we have a
winnable case.’
Mr Zuma expressed his dissatisfaction with this
statement because, he said, it carried the gratuitous and offensive
imputation,
which he had to endure, that he was corrupt but had
covered his tracks. Apart from this, Mr Zuma, as appears from his
founding
affidavit, was quite pleased with the announcement. Indeed,
in his replying affidavit he made it clear that it was common cause

that ‘after extensive and thorough investigations’, Mr Ngcuka and
his deputy, Mr McCarthy, ‘took a carefully considered decision’

not to prosecute him.
43
[41] It is important to stress that Mr Zuma did not
allege that this decision was politically motivated; he did not say
that it
was unjustified; and he did not allege that Dr Maduna had
acted improperly by being present at the press conference. In spite
of
this, Nicholson J saw it as his duty to determine whether the
decision was made from fear or favour (para 174) and said (para 175):
‘
At first blush a decision not
to prosecute the Deputy President of the country appears to be as a
favour to the second highest ranking
politician in the country. The
applicant denies this and puts quite a different slant on the
objective. He says it was all part
of a political agenda that had as
its objective the favouring of President Mbeki in his quest for a
further term of office as ANC
President.’
[42] The statements in the second and third sentences
are puzzling. Mr Zuma was never called upon to deal with the
supposition that
the decision not to prosecute was a favour to him
and, accordingly, he never sought to deny it. And although Mr Zuma
perceived
a political plot behind the Pikoli and Mpshe decisions, he
did not say that the Ngcuka decision was part of the plot. The trial

judge’s later statement that Mr Zuma maintained that there was a
strategy to prosecute Mr Shaik and, when he was convicted, to
dismiss
him as Deputy President, does likewise not appear from the papers
(para 196).
[43] Nicholson J also attacked the merits of the Ngcuka
decision, finding that it was ‘bizarre’ and that it brought
justice
into disrepute (para 150 and 155). The merits of the decision
were, once again, not before him and were irrelevant and in reaching

this conclusion he in any event took no note of the NDPP’s
explanation. It is correct that if there is prima facie evidence of
a
crime in the sense of reasonable prospects of success the NPA should,
in the absence of other germane considerations, initiate
a
prosecution. But the term ‘prima facie evidence’ has more than
one connotation and may mean, as Mr Ngcuka conveyed, that
there may
be evidence of the commission of a crime which is nonetheless
insufficient to satisfy the threshold of a reasonable prospect
of
success, especially if regard is had to the burden of proof in a
criminal case.
44
Although corruption involves two persons, the fact that the one may
be guilty does not mean that the other is also guilty because
the
intention of each party must be decided separately, and evidence that
may be admissible against the one may not be admissible
against the
other.
45
In other words, the fact that Mr Shaik was found guilty does not mean
that Mr Zuma is guilty. Having said all of this, I must emphasise

that I am not holding that the Ngcuka decision was right, simply
because I do not have the material to judge what is in the context
of
this case a non-issue. Instead, I am simply holding that the court
below had erred in this regard.
[44] I have already mentioned that Mr Zuma never accused
Dr Maduna of having acted improperly, whether in connection with the
Ngcuka
decision or otherwise. Nicholson J, again, thought otherwise
and without hearing Dr Maduna concluded that he had done so in
attending
the press conference. From this he deduced that there was a
suggestion of political interference and then held that Dr Maduna
played
a ‘not insignificant part’ in planning the ‘strategy’
not to prosecute in order to have Mr Zuma dismissed as Deputy
President
on the conviction of Mr Shaik, and that this constituted a
serious criminal offence (para 196).
46
Dr Maduna’s supposed machinations around the Ngcuka decision were
then extrapolated to cover Mr Mbeki and the whole cabinet (para
213).
(It is a matter of public record that Dr Maduna left cabinet after
the 2004 general elections.) Once again, the ‘strategy’
involving
Dr Maduna, Mr Mbeki and all the other members of cabinet as well as
the causal connection between the Ngcuka decision
and Mr Mbeki and
the cabinet as found by the trial judge were not based on any
evidence or allegation. They were instead part of
the judge’s own
conspiracy theory and not one advanced by Mr Zuma.
47
Further, the finding, by implication or otherwise, that a non-party
may have committed a criminal act where this was not alleged,
where
it was not in issue and without hearing that party is
incomprehensible.
THE PIKOLI DECISION
[45] It will be recalled that the Pikoli decision to
indict Mr Zuma came to nought when Msimang J struck the case from the
roll.
This, according to the Constitutional Court, terminated the
proceedings.
48
Having fallen away, the Pikoli decision was of mere academic interest
and nothing was left to set aside. The court below realised
this and,
consequently, refrained from setting it aside (para 242).
[46] The court nevertheless proceeded to make findings
about the decision that cannot be justified on the record and, once
again,
I would fail in my duty if I did not indicate briefly where
the court overstepped the mark. It latched onto a paragraph in an
annexure
to the NDPP’s answering affidavit on which Mr Zuma had not
relied (para 197-199). It was an answer by Mr Pikoli to an affidavit

made by Mr Zuma in the proceedings before Msimang J. The NDPP alleges
that the trial judge misunderstood the context of Mr Pikoli’s

evidence and counsel for Mr Zuma did not dispute this. The court also
relied on the contents of a newspaper article that speculated
that
the decision to prosecute was politically motivated (para 200-205).
Mr Zuma had attached the article to his founding affidavit
to
indicate that he believed that his case was being reviewed by the
NDPP. He did not rely on the contents of the article which,
in any
event, were no more than inadmissible speculation by a journalist.
[47] The trial judge, again, failed to comply with basic
rules of procedure.
49
Judgment by ambush is not permitted. It is not proper for a court in
motion proceedings to base its judgment on passages in documents

which have been annexed to the papers when the conclusions sought to
be drawn from such passages have not been canvassed in the

affidavits. The reason is manifest ─ the other party may well be
prejudiced because evidence may have been available to it to
refute
the new case on the facts. A party cannot be expected to trawl
through annexures to the opponent’s affidavit and to speculate
on
the possible relevance of facts therein contained.
50
The position is no different from the case where a witness in a trial
is not called upon to deal with a fact and the court then
draws an
adverse conclusion against that witness.
51
[48] This criticism also applies in relation to the
findings of the court below about the unrelated investigation
concerning the
Commissioner of Police, Mr Jackie Selebi. Its findings
that (a) ‘
there is no refutation that the
Selebi warrants were cancelled by Mr Mpshe after political
interference and that Pikoli was suspended
because he refused to do
so’ (para 205); that (b) ‘Mr Pikoli does not deal with the
allegation that the issuing of the warrants
against Selebi was not
palatable to the President but the decision to prosecute the
applicant was’ (para 206); and that (c) ‘the
suspension of [Mr
Pikoli] was a most ominous move that struck at the core of a crucial
State institution’ (para 207) were all
likewise based on
unconfirmed newspaper speculation on which Mr Zuma did not and could
not rely. Here again the court, without
having all the facts,
commented on matters that were not in issue or canvassed.
[49] Mr Zuma did not note a cross-appeal in relation to
the dismissal of his claim for setting aside the Pikoli decision and,
accordingly,
the procedural correctness of this decision does not
call for consideration.
52
It is, however, necessary to say something about the allegation of
political meddling with Mr Pikoli’s decision. This is because,

although Mr Zuma made a general allegation of ‘political motives
and stratagems’ in the decision to prosecute him, it is only
in the
case of the Pikoli decision that he tried to identify role players
who were allegedly involved.
[50] The sequence of events was the conviction of Mr
Shaik, a visit to Chile by Mr Mbeki and Mr Pikoli, Mr Mbeki’s
dismissal of
Mr Zuma, and Mr Pikoli’s decision to prosecute him.
From this Mr Kemp (for Mr Zuma) sought to infer an implied
instruction by
Mr Mbeki to Mr Pikoli to prosecute Mr Zuma. That was
the high watermark of the ‘evidence’ on political meddling.
[51] Once again, without deciding that there was or was
not political meddling, fairness requires that these facts and
accusations
should be put in their proper perspective. The judgment
of the trial judge in the Shaik matter found, albeit not in those
words,
that a generally corrupt relationship (to use Mr Kemp’s
words during argument) existed between Mr Shaik and Mr Zuma. He
added,
quite appropriately, that his judgment did not hold that Mr
Zuma was guilty. I have already mentioned what the basis of Mr
Mbeki’s
reaction was and it is difficult to see how Mr Pikoli
could, in the light of the Shaik judgment, have failed to prosecute
Mr Zuma.
The evidence about the trip to Chile is clear and Mr Zuma
knew this in advance: Mr Pikoli did not accompany Mr Mbeki although
they
were on the same mission. They did not meet and did not discuss
the matter. Whether Mr Zuma believes this or not is another matter;

courts are duty-bound to deal with proven facts.
THE MPSHE DECISION
[52] The legality of the Mpshe decision is the crux of
this appeal. Unfortunately, the court below subjected Mr Mpshe to the
same
treatment that it had inflicted on others. It also used the
newspaper report referred to above to make a similarly unfounded
finding
against Mr Mpshe (para 200-205). Having done this, the court
went on to assume that Mr Mpshe complied with the supposed
instructions
of Mr Mbeki to prosecute Mr Zuma fearing that he, like
Mr Pikoli, might be suspended or dismissed should he assert his
prosecutorial
independence (para 207). All this was gratuitous and
not based on any evidence.
53
[53] The court below set aside the Mpshe decision and
the indictment that followed because of his failure to (a) comply
with s 179(5)
of the Constitution and (b) accord Mr Zuma a hearing in
the light of his legitimate expectation that arose, firstly, because
of
the Ngcuka announcement (para 223-224) and, secondly, in view of a
letter written by Mr Zuma’s attorney, Mr Hulley, shortly before
the
decision was made and Mr Mpshe’s response to it (para 132-133,
230).
54
[54] It is necessary to stress that the NDPP never
refused to afford Mr Zuma a hearing. Mr Zuma knew from June 2005 that
he was
the subject of an investigation. He was soon thereafter served
with ‘interim’ indictments. He had been told in the Ngcuka press

release that he could make representations under s 22(4)(c) of the
NPA Act and that the NDPP was duty-bound to consider them. He
did
nothing of the sort. Instead, he resisted all attempts by the NPA to
further their investigation. This case is accordingly
not about the
opportunity to be heard – it is about Mr Zuma’s alleged right to
be invited to make representations and, concomitantly,
a right to a
statement setting out the
criteria that were
applied in not prosecuting him and how these had changed. In other
words, he requires with the invitation an
analysis of the case
against him as considered by Mr Ngcuka against the facts in
possession of Mr Mpshe.
SECTION 179(5)(d) of the CONSTITUTION
[55] The full text of s 179 appears earlier in a
footnote but it is convenient at this juncture to quote the relevant
part of sub-sec
(5):
‘
The National Director of Public Prosecutions—
. . .
(d) may review a decision to prosecute or not to
prosecute, after consulting the relevant Director of Public
Prosecutions and after
taking representations within a period
specified by the National Director of Public Prosecutions, from the
following:
(i) The accused person.
(ii) The complainant.
(iii) Any other person or party whom the National
Director considers to be relevant.’
[56] The main issue between the parties is whether the
requirement of ‘taking representations’ from Mr Zuma applies to
the facts
of this case. The NDPP argues that the provision applies
only to reviews of decisions of DPPs and their prosecutors while Mr
Zuma
contends that it also applies when the NDPP reconsiders one of
his own decisions.
[57] Before dealing with the wording of the provision it
must be placed in context. Section 179 is to be found in chapter 8 of
the
Constitution, which deals with ‘Courts and Administration of
Justice’. This chapter does not purport to deal with rights of

accused persons – they are contained in chapter 2, the Bill of
Rights, more particularly s 35. I accept that the chapter must
be so
interpreted that it promotes the spirit, purport and objects of the
Bill of Rights and fits seamlessly into the Constitution
as a whole.
[58] As mentioned before, s 179 created a new
prosecutorial structure where, instead of having a number of
Attorneys-General, each
with their respective areas of jurisdiction,
one now has an NDPP who is a presidential (political) appointee at
the apex of a single
NPA and below him DPPs and prosecutors who are
not.
[59] Against this background sub-sec (3)(b) states that
DPPs are to be ‘responsible’ for prosecutions in their specific
jurisdictions,
subject to the contentious sub-sec (5). ‘Responsible’,
as Mr Kemp argued, means in this context ‘answerable, accountable;

liable to account’.
55
By virtue of the cross-reference to sub-sec (5), this implies that
DPPs are answerable to the NDPP. Paragraphs (a)-(c) proceed
to deal
with three functions of the NDPP in his capacity as head of the NPA
and his control over DPPs and the prosecutors for whom
they are in
turn responsible. They are to determine prosecution policy; to issue
policy directives; and to intervene in the prosecution
process when
policy directives are not complied with.
56
[60] Sub-section (5)(d) deals with the procedure that
the NDPP must follow in reviewing a prosecutorial decision. This
requires
prior consultation with ‘the relevant’ DPP and prior
representations from the accused, the complainant and any other
relevant
person.
[61] The dictionary meaning of ‘review’ includes the
review of an own decision but as the court below correctly pointed
out
‘the concept of a review or reconsideration
assumes a role somewhat elevated to and distant from the person whose
decision is
being reviewed’ (para 106).
57
It is also in the ordinary course of events done on the existing
record and the facts that were before the person whose decision
is
being reviewed. Support for this can be found
in
legislation such as
s 302
of the
Criminal Procedure Act 51 of 1977
, s
24 of the Supreme Court Act 59 of 1959, the various statutes dealing
with courts of the same status as the high courts, PAJA
and the
Uniform Rules of Court r 53. It is accordingly wrong to argue, as did
Mr Kemp, that regard must simply be had to the dictionary
meaning of
‘review’. Dictionary meanings are only a guide to meaning because
the meaning of words depends on context.
58
[62] In the context of sub-sec (5), the power to review
can only be an ‘apex’ function, in other words, a function of the
head
of the NPA
qua
head. Paragraph (d) accordingly deals only with the review of a
decision by the ‘relevant’ DPP – it does not include a
reconsideration
of the NDPP’s own decisions. Once this is accepted,
the reference to the ‘relevant’ DPP does not, as submitted by Mr
Kemp,
refer to the DPP who is affected because the case may fall
within his jurisdiction.
[63] Mr Kemp also submitted that para (d) is an
empowering provision, meaning that the NDPP’s power to review
decisions derives
solely from its terms. The corollary of his
argument is that the consultation and representation requirement
applies to decisions
of the NDPP or else the NDPP would not be
entitled to revisit his own prosecutorial decisions. In the light of
the finding in the
preceding paragraph that the provision is an
‘apex’ provision that deals with the control of the NDPP over the
DPPs, the premise
of the argument falls away.
[64] There is a more compelling reason why the
submission cannot be sustained. Section 179(2) is the empowering
provision. It empowers
the NPA to institute criminal proceedings, and
to carry out ‘any necessary functions incidental to instituting
criminal proceedings’.
The power to make prosecutorial decisions
and to review them flows from this.
59
If it were necessary specially to empower any member of the NPA to
make such decisions and to revisit them, one would have expected
the
Constitution to have said so. It would be incongruous to require a
special provision to empower the head of the NPA to review
matters
but to assume that other members of the NPA of a lower rank have the
power of review by implication. One would have expected
that at the
lower level there is greater need for these requirements but,
significantly, the drafters of the Constitution, conscious
of the
existing practice, and for good reason, did not think it necessary to
include such safeguards.
60
[65] Mr Kemp further argued that the purpose of the
provision was to protect the legitimate reliance an accused and a
complainant
may place on a duly considered and announced
prosecutorial decision, and that it limits arbitrary changes of
prosecutorial decisions
at the NDPP level. This means that any
decision reviewed by the NDPP is subject to the consultation and
representation requirements
of the sub-section. The reason, he said,
is to be found in the fact that the NDPP is a political appointee
and, consequently, the
object of the consultation and representation
requirement is to control the NDPP’s political mindset in
decision-making.
61
[66] There are several counters to this argument. First,
although the NDPP is a presidential appointee it is fair to assume
that
the drafters of the Constitution took it for granted that the
NDPP would, as would Attorneys-General in common-law countries who

are also political appointees, act independently and not take
political considerations into account in making prosecutorial
decisions.
I have dealt earlier with this aspect. Second, if the
object was to prevent the NDPP from taking decisions without the
input of
DPPs in order to prevent him from taking politically
motivated decisions, the provision would not have limited the
consultation
and representation requirement to cases of review, but
would have extended it to all his prosecutorial decisions. In order
to give
the submitted rationale sense, counsel had to introduce a
limitation into the text of the Constitution, namely that the
decision
under review must have been announced. There is nothing to
justify such a limitation.
[67] Mr Kemp also relied on the equal protection clause
in the Constitution. The argument amounts to this: all accused
persons should
be treated equally; and the right to be invited to
make representations in the case of a review of a prosecutorial
decision should
accordingly be so interpreted as to accrue to all
reviews and not only those of the NDPP’s subordinates. The
presumption of equal
treatment in statutory interpretation has always
been with us and now has a special status by virtue of the Bill of
Rights.
62
The question is whether it is ousted by other considerations in the
circumstances of this section of the Constitution. I am of
the view
that it is. The underlying purpose of the provision is not to protect
the accused or the complainant: it is to define
the procedure for the
exercise of the power of control of the NDPP. It would be strange to
find such an important right, which
is not known in comparable
jurisdictions or in our common law, in a chapter of the Constitution
that deals basically with structures
concerned with the
administration of justice and not rights. The Bill of Rights deals in
great detail with the rights of accused
persons, and is silent about
the right to be invited to make representations concerning
prosecutorial decisions. The main problem
though is that s 179 on any
interpretation ‘discriminates’ in the sense that the right to be
invited does not extend to most
prosecutorial reviews like those by a
DPP or a prosecutor. These considerations trump in my view the
presumption and Mr Kemp’s
reliance on the equal protection clause
of the Bill of Rights is, accordingly, misplaced.
[68] Both parties pointed to anomalies flowing from the
other’s interpretation. Mr Trengove (for the NDPP) pointed to
these: Why
protect an accused when an earlier prosecution decision is
reversed but not when the first prosecution decision is taken? Why
protect
him when the NDPP reverses an earlier prosecution decision
but not when the DPP or the prosecutor does so? Who is the relevant
DPP with whom the NDPP must consult when the earlier decision was his
own? Why must the NDPP consult with the accused if he wishes
to
withdraw and with the complainant if he wishes to prosecute? Mr Kemp
had a shorter list of anomalies. The first can be disposed
of
immediately. He suggested that to avoid a review by the NDPP, a DPP
may dishonestly have a prosecutor make the decision to prosecute.
63
This is not so: the ‘relevant’ DPP is the one who is
‘responsible’ for the prosecution under ss (3)(b). The second
concerns
the case where the NDPP reviews a decision of a DPP after
hearing representations but then at the request of one of the
affected
parties decides to reconsider his decision without hearing
anyone. This
reductio ad absurdum
is but another formulation of one of Mr Trengove’s anomalies and,
as he said, anomalies will remain irrespective of which
interpretation
is adopted.
[69] The last aspect that needs mentioning in relation
to the interpretation of para (d) concerns the use by the court below
of
the ‘reading in reading out’ method of interpretation (para
123-126). This method is a constitutional remedy which is used to

prevent a finding that legislation is unconstitutional.
64
This case is concerned with the interpretation of the Constitution
itself and not with its constitutionality and the use of the
‘reading
in reading out’ mechanism by the court was inappropriate.
[70] I therefore conclude that s 179(5)(d) does not
apply to a reconsideration by the NDPP of his own earlier decisions
but is limited
to a review of a decision made by a DPP or some other
prosecutor for whom a DPP is responsible.
[71] Mr Kemp sought to argue on the facts that the
Ngcuka decision was not one by the NDPP but was taken jointly by the
NDPP and
the head of the Directorate of Special Operations (the DSO)
who, he submitted, was a DPP and, accordingly, that the Ngcuka
decision
was one by a DPP. The head of the DSO is a post-Constitution
creation and is not a DPP but a deputy NDPP in terms of the NPA Act

(s 7(3)). Further, the fact that he joined in the decision-making
does not mean that the decision is no longer that of the NDPP.
If the
argument were correct, it would mean that the Mpshe decision was also
not one made by the NDPP and would fall beyond the
provision and
destroy the basis of Mr Kemp’s whole argument because it, too, was
made jointly with the head of the DSO.
65
[72] A further aspect of the Ngcuka decision that
requires consideration is its scope. The decision was made in a
particular context.
The context was the two counts of corruption
levelled against Mr Shaik, Mr Zuma being the recipient of the alleged
bribes. It was
not a decision not to prosecute Mr Zuma for any crimes
whenever committed. Mr Ngcuka made it clear that if circumstances
were to
change in the sense that more or better evidence became
available the decision not to prosecute would be revisited and
reconsidered.
This means that the Ngcuka decision was not intended to
be final; it depended on the then available evidence; and it was
limited
to the mirror images of the Shaik corruption counts.
[73] The Mpshe decision, on the evidence of the NDPP,
was not a review of the Ngcuka decision. The Ngcuka decision had been
overtaken
by events. There was the impact of the evidence and
judgment in the Shaik trial; there was the availability of additional
evidence
which, apart from strengthening the prima facie case, placed
a different complexion on the corruption counts and in the mind of

the NDPP justified the addition of counts of money laundering and
racketeering; there are now four main corruption counts; and
there is
evidence about further crimes, such as tax evasion and fraud on
Parliament.
66
[74] There is another consideration
flowing from the differences between the counts underlying the Ngcuka
decision and the indictment
that was ultimately before Nicholson J.
Even on his interpretation of s 179(5)(d) he was obliged to excise
the good from the bad.
However, he held that the ‘offer [by Mr
Ngcuka] to hear [Mr Zuma’s] representations probably covered any
charges against him
should the [NDPP] decide to charge him’
(para 244). As a finding of fact it is wrong because Mr Ngcuka’s
alleged offer was not open-ended and it also overlooks the fact
that
a review by the NDPP of a decision not to prosecute under s 179(5)(d)
has nothing to do with any prior ‘offer’ to hear
representations.
[75] In addition, as held by the Constitutional Court,
a
s
soon as
the matter had been
struck from the roll by Msimang J, the criminal proceedings were
terminated and the proceedings were no longer
pending. Removal of a
matter from the roll aborts the trial proceedings.
67
The effect of this is that what went before the Mpshe decision was
spent and a new decision to prosecute was required. The Mpshe

decision was not simply a review of the Ngcuka decision, which was no
longer extant. On these facts, s 179(5)(d) had, irrespective
of
whichever interpretation is correct, no application, and Mr Zuma’s
reliance on it was misplaced.
LEGITIMATE EXPECTATION
[76] I now turn to consider the argument based on
legitimate expectation, which is an alternative cause of action. I
found it difficult
to come to grips with Mr Kemp’s argument on both
the expectation and its legitimacy.
[77] The argument underwent a metamorphosis and
ultimately it was that Mr Zuma ought to have been given an
opportunity (more accurately,
to have been invited) to make
representations, not about the reversal of the Ngcuka decision but
about the ‘effective decision
not to afford [him the opportunity]
to make representations which could or would relate also to issues
which have nothing to do
with the merits of the criminal trial’.
This sleight of hand was apparently due to a tacit recognition that
decisions to prosecute
are not covered by ‘specialised legislative
regulation of administrative action’,
68
and that they are not reviewable on the ground of legitimate
expectation by virtue of PAJA. The problem with this argument is that

there is nothing on the papers to suggest that the NDPP decided not
to afford Mr Zuma the opportunity to make representations.
To dissect
any administrative decision into discrete sub-decisions as counsel
would have it is contrived since, as Mr Trengove
said, any procedural
unfairness would then imply a prior decision, whether express or
tacit, not to follow the correct procedure.
[78] It is to be noted that Mr Kemp scuppered the case
as presented to and found by Nicholson J. He no longer sought to rely
on
the Ngcuka announcement or on the Hulley/Mpshe correspondence as
having created any expectation because, as he said, he could not

point to any representation in them. To indicate how valueless the
Ngcuka announcement was for purposes of extricating from it
a promise
to invite representations, it is worth quoting:
‘
We have never asked for nor
sought mediation. We do not need mediation and we do not mediate in
matters of this nature. However,
we have no objection to people
making representations to us, be it in respect of prosecutions or
investigations. In terms of section
22(4)(c) of the [NPA] Act, we are
duty bound to consider representations.’
As said, Mr Zuma never purported to make representations
under the NPA Act.
[79] Mr Kemp sought to rely on an accumulation of facts
namely that (a) the Ngcuka decision was preceded by a careful
investigation;
(b) during that investigation Mr Zuma, instead of
being subjected to a warning statement, was asked to answer written
questions,
some of which he did; (c) the NDPP knew that Mr Zuma
suspected political meddling and strenuously denied that there was
any real
new evidence; (d) Mr Zuma asserted that s 179(5)(d) applied
and Mr Hulley by implication had requested the NDPP to comply with s

179(5)(d) and the NDPP refused; and (e) the NPA is bound by its
policy directives. If I have omitted any it is because the written

and oral argument on this aspect of the case was rather opaque.
[80] An expectation can be legitimate only if it is
based on a practice of or a clear and unambiguous representation by
the administrator.
69
Instead of relying on any representation, Mr Zuma relies on
self-created expectations based on his own perceptions of the law and

the facts, which have always been in dispute. As to practice, the
best Mr Kemp could do was to quote at length from the NPA’s

prosecution policy without pointing to any provision that established
any practice or contained a representation on which Mr Zuma
relied.
THE STRIKING OUT
[81] I have already referred to the
impugned allegations in the founding affidavit which were completely
irrelevant. It is not necessary
to analyse the allegations objected
to by the NDPP because it makes no sense to strike them out at this
late stage of the proceedings.
The damage has been done. This does
not mean that the order of the court below should stand. Most of the
allegations were not only
irrelevant but they were gratuitous and
based on suspicion and not on fact. The excuse for including them was
unconvincing especially
in the light of the disavowal of any
intention to rely on them. The prejudice to the NDPP was manifest.
Instead of having a short
and simple case, the matter not only
ballooned but burst in the faces of many. There may well be reason to
hold that many of the
allegations were vexatious and scandalous but,
once again, it is not necessary to do so for present purposes.
[82] An order on the scale of
attorney and client is fully justified, especially since it is not
the first occasion on which Mr
Zuma has insisted on including such
irrelevant allegations.
70
One cannot escape the impression that the founding affidavit was cut
and pasted from other court papers and that in response the
NDPP
followed suit. Mr Kemp submitted that we could not interfere because
the court below had exercised its discretion. However,
the court did
not exercise any discretion and to the extent that it purported to do
so it relied on incorrect principles and had
the facts wrong.
[83] Mr Zuma’s unusual application to strike out the
affidavit in support of the NDPP’s application to strike out was,
in the
light of this, ill-conceived and should not have succeeded in
the court below.
THE INTERVENTION APPLICATION
[84] It ought to be apparent by now
that Mr Mbeki and other members of Government had ample reason to be
upset by the reasons in
the judgment which cast aspersions on them
without regard to their basic rights to be treated fairly. It is not
necessary to revisit
those issues since they have been dealt with in
sufficient detail. However, they make the applicants’ desire to
intervene at
the appeal stage understandable.
71
[85] Nevertheless, to be able to
intervene in proceedings a party must have a direct and substantial
interest in the outcome of
the litigation, whether in the court of
first instance or on appeal.
72
The basic problem with the application is that the applicants have no
interest in the order but only in the reasoning. They are
in the
position of a witness whose evidence has been rejected or on whose
demeanour an unfavourable finding has been expressed.
Such a person
has no ready remedy, especially not by means of intervention. To be
able to intervene in an appeal, which is by its
nature directed at a
wrong order and not at incorrect reasoning, an applicant must have an
interest in the order under appeal.
73
The applicants do not have such an interest.
[86] They also sought leave to join
as
amici curiae
.
In the light of the NDPP’s argument their intervention in this
regard was not required since it did not add anything new.
[87] In the result the application stands to be
dismissed. The question of its costs remains. Mr Zuma filed a lengthy
answering
affidavit which was unnecessary and inappropriate. Since Mr
Kemp fairly conceded that the court below had no grounds for making

(most, if not all) the impugned findings, Mr Zuma’s opposition is
not understood. He had no legal interest in upholding the denigration

of the applicants and in opposing the intervention because it did not
affect the order he sought to uphold. The submission that
we should
not reconsider these findings because they are not appealable is
cynical. He should therefore bear his own costs in this
regard.
THE ORDER
[88] In the light of the foregoing the following order
is made:
A The appeal is upheld with costs including the costs of
three counsel.
B Paragraphs 1 to 4 of the order of the court below are
set aside and replaced with the following:
‘
1 The application is dismissed.
2 The applicant is to pay the respondent’s costs of
suit including those consequent upon the employment of three counsel.
3 On the respondent’s application to strike out,
the applicant is ordered to pay the costs on the attorney and client
scale.
4 The applicant’s application to strike out is
dismissed with costs on the attorney and client scale.’
C The application to intervene is dismissed.
_______________
L T C HARMS
DEPUTY PRESIDENT
For Appellant: W Trengove SC
B
Downer SC
G
Baloyi
A
Breitenbach
A
Steynberg
Instructed
by: Deputy Director of Public Prosecutions
Durban
The
State Attorney
Bloemfontein
For
Respondent: K J Kemp SC
M
D C Smithers
A
A Gabriel
Instructed
by: Hulley & Associates
Durban
Honey
Attorneys Inc
Bloemfontein
Advocates
for Interveners:
M
T K Moerane SC
P
Coppin SC
L
Gcabashe
1
See
Zuma v National Director of Public Prosecutions
(8652/08)
[2008] ZAKZHC 71
(12 September 2008) to be found at
www.saflii.org.za.
2
See especially
Thint (Pty) Ltd v National Director of Public
Prosecutions;
Zuma
v National Director of Public
Prosecutions
2008 (2) SACR 421
(CC);
[2008] ZACC 13
and
Thint
Holdings (Southern Africa) (Pty) Ltd v National Director of Public
Prosecutions;
Zuma v National Director of Public Prosecutions
2008 (2) SACR 557
(CC);
[2008] ZACC 14.
3
S v Shaik
2007 (1) SACR 142
(D) confirmed on appeal:
S v
Shaik
2007 (1) SA 240; [2007] 2 All SA 9
(SCA) and
S v Shaik
2008 (2) SA 208 (CC).
4
According to Suetonius,
Vita Divi Juli
74, Julius Caesar
supposedly said when explaining why he was divorcing his wife on the
ground of a suspicion of adultery that
‘Meos tam suspicione quam
crimine iudico carere oportere.’ (They [my wife, mother and
sister] should be as much free from
suspicion of a crime as they are
from crime itself.)
5
Constitution s 179.   Prosecuting
authority.—(1)  There is a single national prosecuting
authority
in the Republic, structured in terms of an Act of
Parliament, and consisting of—
(a) a
National Director of Public Prosecutions, who is the head of the
prosecuting authority, and is appointed by the President,
as head of
the national executive; and
(b) Directors
of Public Prosecutions and prosecutors as determined by an Act of
Parliament.
(2)  The
prosecuting authority has the power to institute criminal
proceedings on behalf of the state, and to carry
out any necessary
functions incidental to instituting criminal proceedings.
(3)  National
legislation must ensure that the Directors of Public Prosecutions—
(a) are
appropriately qualified; and
(b) are
responsible for prosecutions in specific jurisdictions, subject to
subsection (5).
(4)  National
legislation must ensure that the prosecuting authority exercises its
functions without fear, favour or
prejudice.
(5)  The
National Director of Public Prosecutions—
(a) must
determine, with the concurrence of the Cabinet member responsible
for the administration of justice, and after consulting
the
Directors of Public Prosecutions, prosecution policy, which must be
observed in the prosecution process;
(b) must
issue policy directives which must be observed in the prosecution
process;
(c) may
intervene in the prosecution process when policy directives are not
complied with; and
(d) may
review a decision to prosecute or not to prosecute, after consulting
the relevant Director of Public Prosecutions and
after taking
representations within a period specified by the National Director
of Public Prosecutions, from the following:
(i) The
accused person.
(ii) The
complainant.
(iii) Any
other person or party whom the National Director considers to be
relevant.
(6)  The
Cabinet member responsible for the administration of justice must
exercise final responsibility over the prosecuting
authority.
(7)  All
other matters concerning the prosecuting authority must be
determined by national legislation.
6
In the event s 22(2)(c) of the NPA Act played no
role in the argument because it merely restates the constitutional
provision.
7
Citing
Lord
Atkin in
Liversidge
v Anderson
[1941] UKHL 1
;
[1942] AC
206
at 244:
‘
In
this country, amid the clash of arms, the laws are not silent. They
may be changed, but they speak the same language in war
as in peace.
It has always been one of the pillars of freedom, one of the
principles of liberty for which on recent authority
we are now
fighting, that the judges are no respecters of persons and stand
between the subject and any attempted encroachments
on his liberty
by the executive, alert to see that any coercive action is justified
in law.’
8
His comments on the Selebi/Pikoli matter are
dealt with later.
9
There is also another possible interpretation of the judgment and
that is that the court was of the view that the possibility
of
political interference created a duty to apply s 179 of the
Constitution (para 218-219) but that is unlikely.
10
Meintjes v Wallachs Ltd
1913 TPD 278
at 285-286 quoted with
approval in
Beinash v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
; [1997] 2 All SA
241 (A).
11
Swissborough Diamond Mines (Pty) Ltd v Government of the RSA
1999 (2) SA 279 (T) 336F-G.
12
Elher (Pty) Ltd v Silver
1947 (4) SA 173 (W)
177-178.
13
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A) 634-5;
Fakie NO v CCII
Systems (Pty) Ltd
2006 (4) SA 326 (SCA) para
55;
Thint (Pty) Ltd v National Director of Public Prosecutions;
Zuma
v National Director of Public Prosecutions
[2008] ZACC 13
;
2008
(2) SACR 421
(CC) para 8-10.
14
Sewmungal NNO v Regent Cinema
1977 (1) SA 814 (N);
Trust
Bank van Afrika Bpk v Western Bank Bpk NNO
1978 (4) SA 281 (A).
15
Union Government (Minister of Railways) v
Sykes
1913 AD 156
at 173-174;
Gericke v Sack
1978
(1) SA 821
(A) 827D-H.
16
Ngqumba v Staatspresident; Damons NO v Staatspresident; Jooste v
Staatspresident
1988 (4) SA 224 (A).
17
Gates v Gates
1939 AD 150
at155;
R(N) v Mental Health
Review Tribunal (Northern Region)
[2006]
QB 468
para 62.
18
For useful expositions see JJ Joubert (ed)
Criminal Procedure Handbook
8
ed 46 et seq; E Du Toit et al
Commentary
on the
Criminal Procedure Act
(loose
leaf ed) ch 1.
19
Ian G Scott ‘The Role of the Attorney General
and the Charter of Rights’ 29
Crim L
Q
(1986-1987) 187; E C S Wade & A
W Bradley
Constitutional and
administrative law
11 ed 402-404;
Ex
parte Attorney General, Namibia: In Re the Constitutional
Relationship between the Attorney-General and the Prosecutor-General
[1995] 3 LRC 507,
1995 (8) BCLR 1070
(SCNm);
Githunguri
v Republic of Kenya
[1986] LRC (Const)
618
(HC);
Proulx v Quebec (Attorney
General)
2001 SCC 66
,
[2001] 3 SCR 9.
For the constitutional crisis about
the independence of the Attorney-General in 1924 in the UK see
S
A de Smith
Constitutional and
Administrative Law
4 ed 380-381.
20
As to political interference in the Transvaal
Republic:
S v Nellmapius
(1886) 2 SAR 121.
21
So, too, the Criminal Procedure and Evidence Act 31 of 1917 s 7.
22
Act 39 of 1926. References to ‘the Minister’ in this judgment
refer either to the Minister of Justice or, where applicable,
the
Minister of Justice and Constitutional Development.
23
GN 1532/1926. For a discussion: Gardiner & Lansdown
SA
Criminal Law and Procedure
(6 ed 1957) vol 1 190-193.
24
General Law Amendment Act 46 of 1935 s 1. Also
the
Criminal Procedure Acts 56 of 1955 (s 5) and 51 of 1977
(s 3(5)).
25
This differs from the historical assumptions made
in the judgment (para 78-79): 32
House
of Assembly Debates
cols 156-169 (2
February 1971) referred to in (1977) 1
SACC
136 n 6.
26
Act 200 of 1993 s 108(1).
27
See in general
Minister of Defence v Potsane; Legal Soldier (Pty)
Ltd v Minister of Defence
2002 (1) SA 1
(CC).
28
Ex parte Attorney General, Namibia: In Re the
Constitutional Relationship between the Attorney- General and the
Prosecutor-General
[1995] 3 LRC 507,
1995 (8) BCLR 1070
(SCNm).
29
S v Yengeni
[2005] ZAGPHC 117
;
2006 (1) SACR 405
(T).
30
Kaunda v President of the RSA (2)
2005 (4) SA 235 (CC)
para 83-84 and the cases there cited. Compare further
Meyer v Law
Society, Transvaal
1978 (2) SA 209 (T)
214F-215D;
Meyer v Prokureursorde van Transvaal
1979 (1) SA
849
(T);
Huisamen v Port Elizabeth Municipality
1998 (1) SA 477; [1997] 2 All SA 458 (E);
Park-Ross v Director: Office for Serious Economic Offences
1998 (1) SA 108; [1998] 1 All SA 70
(C) para 22-25. As to the meaning of ‘administrative
action’ see
President of the RSA v SA Rugby Football Union
2000 (1) SA 1 (CC) also reported as
President
of the RSA v SARFU
1999 (10) BCLR 1059
(CC) para 143.
31
In re Smalley
[1985] AC 622
at 642-643;
In r
e
Ashton
[1994] 1 AC 9
at 17;
Sharma v. Deputy Director of
Public Prosecutions (Trinidad and Tobago)
[2006] UKPC 57
(30
November 2006);
Marshall v Director of Public Prosecutions
(Jamaica)
[2007] UKPC 4
(24 January 2007).
32
Section 1: ‘“administrative action” . . . does not include . .
. a decision to institute or continue a prosecution.’
33
The review of a decision not to prosecute is not excluded by PAJA
and although the Constitutional Court in
Kaunda
v President of the RSA (2)
2005 (4) SA 235 (CC) para 84 left the question
open the court below held that it could be reviewed (para
58). As to
a decision not to prosecute in the UK:
Corner
House Research v The Serious Fraud Office
[2008] UKHL 60
(30 July 2008).
34
English law now appears to be ‘
that
absent dishonesty or
mala
fides
or an exceptional
circumstance, the decision of the DPP to consent to the prosecution
of the Respondents is not amenable to judicial
review’:
R v
Director of Public Prosecutions, Ex Parte Kebeline
[1999]
UKHL 43
;
[2000] 2 AC 326
(per Lord Steyn).
35
Constitution s 2: ‘This Constitution is the supreme law of the
Republic; law or conduct inconsistent with it is invalid, and
the
obligations imposed by it must be fulfilled.’
President of the
RSA v SA Rugby Football Union
2000 (1) SA 1 (CC)
also reported as
President of the RSA v SARFU
1999 (10) BCLR 1059
(CC)
para 148. See for a recent application in a similar context
Naidoo v National Director of Public Prosecutions
2005 (1) SACR
349
(SCA)
.
It is difficult to comprehend the reference to
ouster clauses at para 58-66 of the judgment below.
36
Beckenstrater
v Rottcher & Theunissen
1955 (1) SA 129
(A);
Relyant
Trading (Pty) Ltd v Shongwe
[2007] 1 All SA 375
(SCA)
.
For
Canada:
Prouxl
v Quebec (Attorney General)
2001 SCC 66
,
[2001] 3 SCR 9.
37
Thompson v Minister of Police
1971 (1) SA 371
(E) 375A-D.
38
Tsose v Minister of Justice
1951 (3) SA 10 (A) 17.
39
Beckenstrater v Rottcher & Theunissen
1955
(1) SA 129
(A).
40
1994 (1) SA 387
(C). The correctness of this judgment does not arise
for decision.
41
Beckenstrater v Rottcher &
Theunissen
140B-F.
42
North Western Dense Concrete CC v DPP,
Western Cape
2000 (2) SA 78 (C);
Van Eeden v DPP
,
Cape of Good Hope
2005 (2) SACR 22
(C);
R v Croydon
Justices, ex parte Dean
[1993] 3 All
ER 129
(QBD).
43
The finding of the court below that the Ngcuka
decision was a review and not an original decision is, accordingly,
not fact based
(para 117). Had it been a review it would have been
void because Mr Zuma had not been invited to make representations.
The effect
would then have been that the objections to the later
‘review’ on which this case is based would have had no merit
because
one cannot review a void decision.
44
See the discussion by
Zeffertt, Paizes and Skeen
The
SA Law of Evidence
(2003) 121-130.
R v Director of Public
Prosecutions, ex parte Manning
[2000] EWHC 562
;
[2000]
3 WLR 463
at 474 (Lord
Bingham of Cornhill):
'In most cases the decision will turn not on any
analysis of the relevant legal principles but on the exercise of an
informed
judgment of how a case against a particular defendant, if
brought, would be likely to fare in the context of a criminal trial
before (in a serious case as this) a jury. This exercise of judgment
involves an assessment of the strength, by the end of the
trial, of
the evidence against the defendant and of the likely defences. It
will often be impossible to stigmatise a judgment
on such matters as
wrong even if one disagrees with it.’
45
Compare
Thint Holdings (Southern
Africa) (Pty) Ltd v National Director of Public Prosecutions;
Zuma v National Director of Public Prosecutions
[2008] ZACC 14
;
2008 (2) SACR
557
(CC) para 58.
46
He also referred to meetings between Dr Maduna and the NDPP around
the prosecution of another co-accused, Thint (para 192-195),
and the
fact that Mr Ngcuka thanked Dr Maduna at the press conference for
his political leadership. As to the first, the court
was not
entitled to base its judgment on something taken from an answering
affidavit unless the argument was foreshadowed in
the founding
affidavit, which it was not:
Administrator, Transvaal v
Theletsane
1991 (2) SA 192 (A). As to the second,
the statement appeared in an annexure and Mr Zuma did not seek to
rely on
it and, accordingly, the court was not entitled to base its
judgment on it because the NDPP was not called upon to deal with it:
Minister of Land Affairs & Agriculture v D & F Wevell
Trust
2008 (2) SA 184 (SCA);
[2007] ZASCA
153
para 43.
47
The fact that cabinet may in law be responsible
for the actions of a minister does not establish without evidence
that cabinet
knew what the minister did (para 213-216).
48
Thint Holdings (Southern Africa) (Pty) Ltd v National Director of
Public Prosecutions;
Zuma v National Director of Public
Prosecutions
[2008] ZACC 14
;
2008 (2) SACR 557
(CC) para 40-42.
49
Compare
Minister of Land Affairs & Agriculture v D & F
Wevell Trust
2008 (2) SA 184 (SCA);
[2007]
ZASCA 153
para 43.
50
Swissborough Diamond Mines (Pty) Ltd v Government of the RSA
1999 (2) SA 279 (T) 324F-G.
51
President of the RSA v SA Rugby Football Union
2000 (1) SA 1 (CC) also reported as
President
of the RSA v SARFU
1999 (10) BCLR 1059
(CC) para 61.
52
Goodrich v Botha
1954 (2) SA 540
(A);
Gentiruco AG v
Firestone SA (Pty) Ltd
1972 (1) SA 589
(A) 607;
National
Union of Metalworkers of SA v Henred Fruehauf Trailers
[1994] ZASCA 153
;
1995 (4)
SA 456
(A) 475;
Municipal Council of Bulawayo v Bulawayo
Waterworks Co Ltd
1915 AD 611
at 631;
SAR & H v Sceuble
1976 (3) SA 791
(A).
53
The court chose to comment on the timing of the
Mpshe decision while Mr Zuma expressly refrained from doing so (para
210).
54
It is not necessary to comment on the finding,
again based on newspaper reports, that because Mr Mpshe consulted
his investigation
team this meant that he should have consulted with
Mr Zuma (para 120) because Mr Kemp did not rely on it.
55
Mweuhanga v Administrator-General of South West Africa
1990 (2) SA 776 (A) 783E-I.
56
‘The National Director of Public Prosecutions—
(a) must
determine, with the concurrence of the Cabinet member responsible
for the administration of justice, and after consulting
the
Directors of Public Prosecutions, prosecution policy, which must be
observed in the prosecution process;
(b) must
issue policy directives which must be observed in the prosecution
process;
(c) may
intervene in the prosecution process when policy directives are not
complied with; and
(d) .
. ..’
57
Elsewhere the court below had a different view
(para 68).
58
Seven Eleven Corporation of SA (Pty) Ltd v Cancun Trading No 150
CC
2005 (5) SA 186; [2005] 2 All SA 256
(SCA) para 24.
59
It will be recalled that prosecutorial decisions and their internal
reconsideration were, except in the limited sense set out
earlier,
not subject to procedural limitations or judicial overview. Mr Kemp
accepts that the review of prosecutorial decisions
by prosecutors
and DPPs is not subject to any consultation or representation
requirement.
60
Called a ‘glaring absurdity’ by the court
below (para 75) but the absurdity is not addressed by its
interpretation.
61
T
his consideration found favour with the court
below (para 77-118).
62
LM du Plessis in 25(1) Joubert (ed)
Lawsa
(first re-issue) para 322.
63
Relied on by the court below (para 74) while
disregarding the difference between the right to make
representations and the right
to be invited to make them.
64
National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs
2000
(2) SA 1
(CC)
para 73-76.
65
The findings of the court below at para 117 are
not based on evidence or the provisions of the NPA Act.
66
Mr Zuma’s submission that because he had settled his tax matters
after the indictment was served meant that the prosecution
was not
justified is not understood and was not presented in argument.
67
Thint Holdings (Southern Africa) (Pty) Ltd v National Director of
Public Prosecutions;
Zuma v National Director of Public
Prosecutions
[2008] ZACC 14
;
2008 (2) SACR 557
(CC)
para
41-42.
68
Sidumo v Rustenburg Platinum Mines Ltd
2008 (2) SA 24
(CC);
[2007] ZACC 22
para 91-94, 103-104.
69
SA Veterinary Council v Szymanski
2003 (4) SA 42 (SCA)
para 19;
Minister of Defence v Dunn
2007 (6) SA 52;
[2007] ZASCA 75
; [2008] 2 All SA 14 [SCA]
para 31-32.
70
See the unreported judgment of Van der Merwe J in
a case between the parties dated 14 September 2007 (TPD).
71
See
Standard Bank of SA Ltd v Harris
[2002] 4 All SA 164;
2003 (2) SA 23 (SCA).
72
United Watch & Diamond Co (Pty) Ltd v Disa Hotels Ltd
1972 (4) SA 409 (C) 415-417.
73
Western Johannesburg Rent Board v Ursula Mansions (Pty) Ltd
1948 (3) SA 353 (A);
Administrator, Cape v
Ntshwaqela
1990 (1) SA 705 (A) 715D-F.