S v Zuma and Another (CCD30/2018) [2021] ZAKZPHC 89; [2022] 1 All SA 533 (KZP); 2022 (1) SACR 575 (KZP) (26 October 2021)

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[2021] ZAKZPHC 89
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S v Zuma and Another (CCD30/2018) [2021] ZAKZPHC 89; [2022] 1 All SA 533 (KZP); 2022 (1) SACR 575 (KZP) (26 October 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: CCD30/2018
In
the matter between:
THE
STATE
and
JACOB
GEDLEYIHLEKISA
ZUMA                                                 FIRST

ACCUSED
THALES
SOUTH AFICA (PTY)
LTD                                           SECOND

ACCUSED
JUDGMENT
IN RESPECT OF THE FIRST ACCUSED’S PLEA IN RESPECT OF SECTION
106(1)
(h)
AND 106(4) OF THE
CRIMINAL PROCEDURE ACT, 1977
Koen
J
Introduction
[1]
The
first accused, Mr Jacob Gedleyihlekisa Zuma (Mr Zuma), and the second
accused, Thales South Africa (Pty) Ltd (Thales), face
various
charges, as set out in the indictment.
[1]
They have both pleaded not guilty to all the charges. In addition, Mr
Zuma raised a plea in terms of s 106(1)
(h)
of the Criminal Procedure Act 51 of 1977 (the CPA) (‘the
special plea’). In the special plea he contends that the lead

prosecutor of the prosecuting team representing the State, Mr William
John Downer SC (Mr Downer), ‘has no title to prosecute’

as contemplated in s 106(1)
(h)
,
and ‘should be removed as the prosecutor in this case.’
[2]
He further demands that in the event of it being found that Mr Downer
lacks title to prosecute, that he (Mr Zuma) be acquitted
of all the
charges in terms of section 106(4) of the CPA.
[2]   Section
106 of the CPA provides:
‘
(1)
When
an accused pleads to a charge he may plead –
(a)
that
he is guilty of the offence charged or of any offence of which he may
be convicted on the charge; or
(b)
that
he is not guilty; or
(c)
that
he has already been convicted of the offence with which he is
charged; or
(d)
but
he has already been acquitted of the offence with which he is
charged; or
(e)
that
he has received a free pardon under section 327(6) from the State
President for the offence charged; or
(f)
that
the court has no jurisdiction to try the offence; or
(g)
that
he has been discharged under the provisions of section 204 from
prosecution for the offence charged; or
(h)
that
the prosecutor has no title to
prosecute
; or
(i)
that
the prosecution may not be resumed or instituted owing to an order by
a court under section 342A(3)
(c)
.
(2)    Two
or more pleas may be pleaded together except that a plea of guilty
may not be pleaded with any other
plea to the same charge.
(3)    An
accused shall give reasonable notice to the prosecution of his
intention to plead a plea other than
the plea of guilty or not
guilty, and shall in such notice state the ground on which he bases
his plea: Provided that the requirement
of such notice may be waived
by the attorney–general or the prosecutor, as the case may be,
and the court may, on good cause
shown, dispense with such notice or
adjourn the trial to enable such notice to be given.
(4)
An
accused who pleads to a charge, other than a plea that the court has
no jurisdiction to try the offence
, or an accused on behalf of
whom a plea of not guilty is entered by the court,
shall, save as
is otherwise expressly provided by this Act or any other law, be
entitled to demand that he be acquitted
or be convicted.’
(emphasis added)
[3]   This
judgment deals in the main with the special plea. From the time that
the trial was to have commenced on
17 May 2021, until the special
plea was argued on 21 and 22 September 2021, a number of
postponements occurred. It is necessary
that I deal with those
briefly, more particularly, where appropriate and necessary, setting
out some of the reasons which caused
me to have acceded to the
adjournments and to issue certain directions. In dealing with these
events in the chronological sequence
in which they occurred, some
aspects relevant to the adjudication of the special plea will also be
referred to.
The
procedure followed for adjudicating the special plea
[4]   Section
106 of the CPA does not prescribe a specific procedure to be followed
for the adjudication of the special
plea. Section 106(3) simply
requires that reasonable notice be given to the prosecution of the
intention to raise the special plea.
No such notice had been given
when the trial was due to commence on 17 May 2021. On that day Mr
Zuma’s counsel, Mr Masusku
SC requested that the matter be
adjourned to 26 May 2021 to allow the requisite notice required by s
106(3) to be given to the
State. Mr Masuku confirmed that what was
sought was not a recusal of Mr Downer but a determination that Mr
Downer did not have
‘title to prosecute’ as contemplated
by s 106(1)
(h)
. It was agreed that the requisite notice would
be filed by 19 May 2021. On that basis the State agreed to the
adjournment. Thales
placed on record that it was ready to proceed.
[5]
On
19 May 2021 a filing notice,
[3]
to which was annexed a ‘Plea in terms of section 106(1)
(h)
and 106(4) of the
Criminal Procedure Act 51 of 1977
’ dated 17
May 2021, and ‘A plea explanation in terms of
section 106(1)
(h
)
and 106(4) of the
Criminal Procedure Act 51 of 1977
’, were
filed. The ‘Plea’ comprised a four-page document signed
by Mr Zuma, his counsel and attorney. The plea
explanation took the
form of an affidavit by Mr Zuma with annexures, attested on 19 May
2021, comprising some 1449 pages. The grounds
on which it would be
contended that Mr Downer lacks title to prosecute are contained in
the notice and, more particularly, the
affidavit.
[6]
On
26 May 2021 both accused pleaded not guilty.
[4]
In addition, the special plea of which notice had been given, was
entered.
[5]
[7]   The
affidavit referred to in the written special plea (the founding
affidavit) is signed by Mr Zuma and sets
out the grounds on which he
intends relying. In content it is the exact same affidavit that had
been annexed to the notice which
had been delivered previously, when
notice was given of his intention to raise the special plea. The
issues raised by the special
plea are accordingly to be found in the
written special plea signed by Mr Zuma, which incorporates the
founding affidavit. The
founding affidavit sets out the evidence in
respect of the grounds relied upon. The founding affidavit did not
contain any request
for
viva voce
(oral) evidence to be
adduced, or that the special plea be dealt with by way of a trial.
[8]
The
parties approved of this procedure initiated and adopted by Mr Zuma,
if not expressly, then at least tacitly. This court also
approved of
the procedure for the identification of the issues in dispute and the
facts in support of the contentions of the parties
in the special
plea, by granting a consent order on 26 May 2021, which also fixed
dates for the exchange of an answering affidavit
by the State,
[6]
and a replying affidavit, by Mr Zuma.
[7]
The trial was adjourned to 19 July 2021 for the adjudication of the
special plea on that basis.
[9]   The
answering and replying affidavits were duly filed. Altogether, the
affidavits with annexures comprise some
4 230 pages. It was also
ordered at that time, by consent, that Mr Zuma’s heads of
argument be filed by 5 July 2021 and those
of the State by 12 July
2021. Mr Zuma’s heads were filed a week late, together with
that of the State, on 12 July 2021. No
application for condonation
for the late filing of Mr Zuma’s heads was filed, but no
objection was raised by the State. The
heads filed are comprehensive,
and in the case of Mr Zuma more in the nature of a wide ranging
written argument, rather than heads
of argument. The special plea was
ready to be adjudicated on 19 July 2021, based on the contents of the
written plea signed by
Mr Zuma and the affidavits that were
exchanged.
The
events following the decision in
Secretary
of the State Capture Commission v Zuma
.
[8]
[10]
On
29 June 2021, the Constitutional Court delivered judgment in the
matter of
Secretary
of the State Capture Commission v Zuma
.
This judgment provided for the imprisonment of Mr Zuma for a period
of 15 months for contempt of court. The Constitutional Court
directed
Mr Zuma
to
submit within 4 days of date of judgment. If he did not then the
Minister of Police was to take steps to have Mr Zuma taken into

custody, within 3 days of the expiry of that period
,
that is by 7 July 2021. On 3 July 2021, the Constitutional Court
however agreed to hear a rescission application in respect of
its
order, on Monday, 12 July 2021. An application for an urgent
interdict to prevent Mr Zuma’s incarceration was argued
in this
division on Tuesday, 6 July 2021. Those proceedings, like the
proceedings before the Constitutional Court, took the form
of a
virtual hearing. Judgment was reserved until Friday, 9 July 2021. A
further application was brought outside court hours on
Wednesday
evening, 7 July 2021, to prevent the arrest and incarceration of Mr
Zuma. That was dismissed. Mr Zuma was committed to
the Correctional
Service Centre at Estcourt shortly before midnight on 7 July 2021. On
Friday, 9 July 2021, the judgment in the
interdict application, which
was reserved on 6 July 2021, was delivered. The application for the
interdict was dismissed with costs.
[9]
[11]   During
this time various cargo trucks travelling on the N3 highway from
Gauteng to Durban were blocked and
set alight at Mooi River,
KwaZulu-Natal, and the trucks and their cargo destroyed.
[12]   The
aforesaid facts and those set out immediately below, have acquired
such notoriety that judicial notice
may be taken thereof.
[13]   On
Sunday evening, 11 July 2021, the President of the Republic of South
Africa, Mr Ramaphosa, in announcing
the response of the South African
government to the ongoing third wave of the COVID-19 pandemic
spreading across the country, extended
the adjusted level 4 lockdown
regulations provided for in the
Disaster Management Act 57 of 2002
,
for another two weeks.
[14]   By
Monday, 12 July 2021, widespread violence and disruptions to ordinary
civil life of previously unimaginable
proportions occurred. The
violence had spread from the initial torching of the trucks to
elsewhere in KwaZulu-Natal, including
Pietermaritzburg, and also
Gauteng. It resulted in large scale looting, violence and the
destruction of many businesses and structures.
It was reported that
more than 300 people had died. The central business district of
Pietermaritzburg, where the High Court is
situated and the hearing of
the special plea was to proceed, had become inaccessible. The N3,
which would also give highway access
from Estcourt to
Pietermaritzburg for the transport of Mr Zuma, and from Gauteng for
counsel travelling from there to KwaZulu-Natal,
was closed. Flights
to the Pietermaritzburg airport were cancelled. Shops that were not
looted or destroyed, were closed. Even
in the days after the looting
had abated and some remaining grocery shops had reopened, members of
the public had to queue outside
shops for basic necessities, and in
many instances, were limited to the number of items they would be
allowed to purchase. It was
feared that the possibility of bulk
buying by terrified members of the public could result in a food
scarcity. The South African
National Defence Force was activated. The
Durban and Pietermaritzburg High Courts were both closed to the
public from that Monday.
The
directive of 15 July 2021
[15]   At
past court appearances, when the trial of Mr Zuma was enrolled, the
court room was always well populated,
and crowds gathered outside the
court. Many of the persons making up these crowds would often not
wear masks or maintain the prescribed
social distancing.
[16]   Concerned
by the adjusted level 4 lockdown being extended, the spread of the
third wave of the COVID-19 pandemic,
the widespread violence and
looting in the Pietermaritzburg central business district, the
inaccessibility of the N3 as an access
route to Pietermaritzburg, the
inaccessibility of the Pietermaritzburg High Court, and the absence
of flights to Pietermaritzburg,
I considered the possibility of
approaching the parties to ascertain their attitude to having the
hearing of the special plea proceeding
virtually. I addressed an
email to the parties inviting their views, by midday on Thursday, 15
July 2021, as to whether the hearing
scheduled for 19 July 2021
should proceed virtually. As I would still have to gain access to the
Information Technology (IT) staff
at the Pietermaritzburg High Court
to set up such a virtual hearing, and it was uncertain whether the
High Court building would
be accessible, it was even suggested that
it might be prudent in the alternative to adjourn the matter for a
week, depending on
the availability of counsel in the next week.
[17]   The
State and the representatives for Thales promptly agreed to a virtual
hearing. Mr Thusini, Mr Zuma’s
attorney, replied that he would
respond before 15 July 2021. He responded after midday on 15 July
2021, stating that Mr Zuma would
seek a postponement of the matter.
In the interim, part of the N3 had been reopened but the section
between Harrismith to Cedara,
just north of Pietermaritzburg, which
includes Estcourt, remained closed. By Thursday access could be
gained to the High Court
and I arranged to meet with the IT staff on
the Friday. As no specific objections had been raised to the hearing
proceeding virtually
I directed shortly after the midday cut-off,
that the hearing would proceed virtually.
The
hearing of 19 July 2021
[18]   On
16 July 2021 I received a request from Mr Thusini, the attorney for
Mr Zuma, for directions for the service
of an urgent application for
a postponement of the hearing of the special plea on 19 July 2021.
The State agreed to accept service
by midday on Saturday 17 July
2021. I issued a directive regulating that process.
[19]   In
the urgent application launched on Saturday, 17 July 2021, Mr Zuma
claimed the following relief:
‘
1.    Declaring
that the trial of the accused’s plea on the virtual platform is
inconsistent with the
rights of the accused in section 35(3) of the
Constitution;
2.     That
the trial and all other related proceedings between the State and
Jacob Gedleyihlekisa Zuma
and One Other, are adjourned in terms of
the provisions of
section 168
of the
Criminal Procedure Act, 51 of
1977
to the date to be arranged and agreed upon by the parties or to
the date determined by this Honourable Court.’
[20]   On
19 July 2021, I heard argument regarding the adjournment. These
proceedings proceeded virtually without
objection. On 20 July 2021 I
granted the following order:
‘
1.      The
trial is adjourned to 10 to 13 August 2021 for the adjudication of
the issues raised in
the special plea in terms of
section 106
(1)(h)
of the
Criminal Procedure Act 51 of 1977
.
2.      The
ruling in respect of the relief claimed in paragraph 1 of the Notice
of Application dated
17 July 2021 is adjourned to 10 August 2021.
3.      The
directive of 15 July 2021 (“the directive”) that the
hearing of the special
plea will proceed by way of a virtual hearing,
shall continue to apply unless revoked or revised as provided below.
4.      The
parties and the Department of Correctional Services are each invited
to provide a list,
in point form and not exceeding two pages of
double-spaced typing, of any considerations and/or prejudice which
might result, which
they consider relevant to the decision whether
the directive should be revoked or revised.
5.      The
list of considerations and possible prejudice referred to in
paragraph 4 above must be
compiled with reference to the
circumstances that will prevail or are anticipated to prevail as from
9 August 2021.
6.      The
lists referred to in paragraph 4 above must be transmitted to the
judge’s registrar
per email on or before 2 August 2021.
7.      The
Registrar is directed to transmit a copy of this order per email to
the Head of the Correctional
facility at Estcourt where Mr Zuma is
currently detained.
8.      Any
revision of the directive, or the revocation thereof, shall be
communicated to the parties
by email on 4 August 2021.
9.      In
view of the special plea not concerning accused 2, Mr Durand will
continue to be excused,
if he so wishes, from attending the hearing
on 10 August 2021, on the understanding that he will attend again
when required to
do so.’
[21]   I
did not provide reasons at the time, but below set out briefly my
reasons for the directive and for granting
the adjournment.
[22]   The
affidavit in support of the application, deposed to by Mr Thusini,
advanced as a basis for the postponement,
the alleged violation of Mr
Zuma’s fair trial rights in terms of section 35(3)
(c)
and
(e)
of the Constitution, and a complaint that his legal
representatives, due to the extraordinary circumstances that had
arisen in
the preceding week, and which prevailed and which were
unprecedented, had not been able to consult properly with him on the
recent
developments. At the hearing, reliance was also placed on an
alleged infringement of s 35(3)
(f)
of the Constitution.
[23]   Section
35(3) of the Constitution provides:
‘
(3) Every accused
person has a right to a fair trial, which includes the right –
(a)
to
be informed of the charge with sufficient detail to answer it;
(b)
to
have adequate time and facilities to prepare a defence;
(c)
to
a public trial before an ordinary court
;
(d)
to
have their trial begin and conclude without unreasonable delay;
(e)
to
be present when being tried
;
(f)
to
choose, and be represented by, a legal practitioner, and to be
informed of this right promptly
;
(g)
to
have a legal practitioner assigned to the accused person by the state
and at state expense, if substantial
injustice would otherwise
result, and to be informed of this right promptly;
(h)
to
be presumed innocent, to remain silent, and not to testify during the
proceedings;
(i)
to
adduce and challenge evidence;
(j)
not
to be compelled to give self-incriminating evidence;
(k)
to
be tried in a language that the accused person understands or, if
that is not practicable, to have the
proceedings interpreted in that
language;
(l)
not
to be convicted for an act or omission that was not an offence under
either national or international
law at the time it was committed or
omitted;
(m)
not
to be tried for an offence in respect of an act or omission for which
that person has previously been either
acquitted or convicted;
(n)
to
the benefit of the least severe of the prescribed punishments if the
prescribed punishment for the offence
has been changed between the
time that the offence was committed and the time of sentencing;
and
(o)
of
appeal to, or review by, a higher court.’ (emphasis added)
[24]   Mr
Zuma’s application for the adjournment was opposed by the
State. Thales adopted a neutral stance.
I was persuaded, in the
exercise of my discretion, to grant the adjournment, having regard to
the practicalities of the situation,
the unusual events which had
intervened from 9 July 2021, the fact that the matter had originated
some 15 years ago, and that the
adjournment would be for only three
weeks, an insignificant delay in the overall scheme of the trial.
Such a postponement appeared
to be necessary and reasonable in the
interests of justice in the circumstances, when weighed against the
potential curtailment
of Mr Zuma’s rights to consult properly
with his legal representatives. The dates of the adjournment were
agreed amongst
the parties.
The
directive of 4 August 2021
[25]   Mr
Zuma’s brother had in the interim sadly passed away. Mr Zuma
was granted compassionate leave of absence
by the Department of
Correctional Services to attend his brother’s funeral in the
Nkandla area on Thursday, 22 July 2021.
He was, by all accounts, able
to leave the Correctional Centre in Estcourt, attend the funeral and
returned safely without any
incident, or any further unrest arising.
On Sunday evening, 25 July 2021, the President again addressed the
nation and relaxed
the COVID-19 lockdown regulations to adjusted
level 3. The violence and looting around Pietermaritzburg had ceased,
calm was restored,
and a major clean-up process had commenced. The
circumstances, except for the ongoing COVID-19 pandemic, which is
seemingly likely
to prevail still for some time, had changed
considerably.
[26]   Pursuant
to paragraphs 4, 5 and 6 of my order of 20 July 2021, Mr Zuma filed a
list of considerations and
possible prejudice for my consideration in
deciding whether to revoke the previous directive I had issued
regarding a virtual hearing.
It read:
‘
1.     We
are instructed to specifically point out that the 1
st
accused’s departure point is that, for all the reasons raised
in argument, he remains of the view that: there is no legal

justification, in terms of section 36 of the Constitution, to direct
that what are essentially criminal trial proceedings can be
conducted
virtually, in his physical absence, without his consent and outside
of the limited context of bail, postponement or similar
proceedings.
To do so would be unconstitutional and illegal, irrespective of the
situation in the particular case, a particular
date or particular
circumstances which may or may not prevail on 9 August 2021.
Point – form list
of factors, as ordered
2.      However
and in the unlikely event that a constitutionally and/or legal ground
to do so may
be found to exist, which is denied, then the following
list of factors which still nevertheless militate against such a
procedure:
a.      The
1
st
accused hereby specifically refuses to grant his
consent thereto;
b.      It
remains extremely difficult, both from logistical and financial
point(s) of view, to conduct
a physical consultation between him and
his full legal team. He is in Estcourt and the team is spread
throughout South Africa.
The possibility of interception also limits
his rights to legal representation (section 35(3)(f))
c.      The
section 106(1)(b) plea process is, by definition, a very unique and
specialised “trial-within-a-trial”
type of proceedings,
which automatically requires seamless interaction between the accused
and his representatives, as with all
other accused persons;
d.      He
specifically wants to observe the court and counsel for the other
side in real time, like
all other accused persons in the same
position. That is why other criminal trials were postponed.
e.      Some
of his close relatives and/or supporters who would have been present
in a
public and ordinary court room
(see section 35(c) of the
Constitution) may not have access to electronic devices or even
television broadcasts. In any event,
we are now at level 3, the
unrest has subsided and the courts are functioning as before.
f.       Should
there be a need for an interpreter it may prove logistically
difficult for the
accused to follow the proceedings.
3.      Finally,
serious doubt has been internationally cast on the appropriateness of
virtual criminal
proceedings.
4.      We
therefore respectfully submit that the directive of the court ought
properly to be reversed
as it will unduly and invariably prejudice
the 1
st
accused.’ (footnote omitted)
[27]   The
State filed a list which provided as follows:
‘
1.     The
State believes that the hearing of the first accused’s special
plea can, and must proceed
on 10 August 2021, whether virtually or
in-person.
2.      A
virtual hearing of oral argument on the special plea on 10 August is
possible and will be
satisfactory in every respect. The parties and
their legal representatives and the public (through the broadcasting
of a live feed)
will be able to observe the proceedings. As with the
previous hearing, arrangements can be made with the Estcourt
Correctional
Centre for a virtual link for the first accused; and
that he may consult with his legal team, both in the run-up to the
hearing
and during the hearing.
3.      As
to an in-person hearing, the security services have advised the NPA
that if an in-person
hearing were to take place on 10 August they
will take all reasonable steps to ensure that happens peacefully.
They have not given
any assurance that they will succeed. Supporters
of the first accused are presently being mobilised on social media to
gather in
their numbers in Pietermaritzburg on 10 August. In
addition, the daily Covid-19 infection rate in KZN is presently
rising. The
course of third wave in other parts of the country
suggests this is likely to continue or not to abate materially.
4.      There
is no good reason not to opt for a virtual hearing of the oral
argument on 10 August
and to assume the risks attendant on an
in-person hearing.
5.      If,
after hearing the oral argument, this Court decides to refer any
issues raised by the
special plea to oral evidence, the hearing
format can be revisited. The issue of a virtual hearing of oral
evidence, either on
the special plea or later in the trial, need not
and cannot be determined now. Every such decision must be made in the
light of
the then prevailing and anticipated facts and
circumstances.’
[28]   The
Acting Regional Commissioner: KwaZulu-Natal Region of the Department
of Correctional Services filed a
list on 3 August 2021 stating the
following:
‘
1.      The
court is hereby requested to take the following considerations on
carrying out the Directive
of 15 July 2021 wherein the hearing of the
special plea will be held virtually on the 10 August 2021:
1.1   That
Remand Audio Visual is available and functional at Estcourt
Correctional Centre.
1.2   That
other virtual platforms such as Zoom, Microsoft Teams, and Webex are
available and operated from a laptop
at Estcourt Correctional Centre.
1.3   That
the Department will be able to connect Mr Zuma from Estcourt
Correctional Centre with the court from 08H00
on the trial dates.
1.4   The
Department will set up a satellite telephone for communication
between Mr Zuma and his legal representatives
during court
appearances.
2.      The
Department will be in a position to transport Mr Zuma to the
Pietermaritzburg High Court
to appear in person should the court
issue such a Directive.’
[29]   Thales
filed a notice expressing itself in favour of a hearing via a virtual
platform but considered it inappropriate
in view of it not having
been directly involved, to advance reasons for a virtual hearing
other than to express their preference
for it.
[30]   In
light of these submissions and the changed circumstances, I
determined that the hearing for 10 August 2021
should no longer
proceed virtually, but in person, as the preferred default position.
Personally, I consider a hearing in open
court preferable for a
number of reasons, specific to my experience, which includes the
observation of non-verbal cues of all the
parties involved,
transparency, due observance of the decorum of the court, and
openness. Further, the circumstances were no longer
such that a
virtual hearing was required.
[31]   On
4 August 2021 I accordingly advised the parties per email, as I had
undertaken to do, that:
‘
1.      The
hearing of the plea in terms of
s106(1)(h)
of the
Criminal Procedure
Act 51 of 197
7 set down from 10 August 2021, shall proceed in open
court at the High Court in Pietermaritzburg.
2.      The
currently applicable Disaster Management (Covid) regulations,
particularly those regarding
the wearing of facemasks, maintaining
social distancing, and the restriction on the number of attendees at
indoor venues, must
at all times be adhered to strictly.
3.      The
directive previously issued on 15 July 2021 is hereby revoked.
4.      This
directive is subject to amendment at any stage should circumstances
arise which make
it desirable to do so.’
[32]   In
the light of that communication and the hearing of the special plea
no longer proceeding virtually, the
relief claimed in paragraph 1 of
the notice of application for the previous adjournment had become
academic. It was simply adjourned
sine die. That then cleared the
path for a consideration of the merits of the special plea on 10 to
13 August 2021.
The
hearing of 10 to 13 August 2021
[33]   On
the public holiday, Women’s Day, Monday, 9 August 2021 I was
formally advised that at the end of
the previous week, Mr Zuma had
been admitted to a hospital outside the Estcourt Correctional Centre
where he was previously detained,
that he would not attend court on
Tuesday, 10 August 2021, and that application would be made for the
hearing of the special plea
to be opposed. The parties had agreed,
and I issued a directive in accordance with their agreement on 9
August 2021 in the following
terms:
‘
1.      The
proceedings on 10 August 2021 will be held virtually, not in person,
and in the absence
of Mr Zuma, who, as informed by the Estcourt
Correctional Centre, is currently an in-patient in hospital under the
care of the
Presidential Medical Unit of the South African National
Defence Force.
2.      On
10 August 2021 Mr Zuma shall apply for a postponement of the criminal
proceedings to a
future date (“the postponed date”),
which shall be within a reasonably short period depending on the
availability of
all concerned.
3.      The
application shall be supported by an affidavit by a medical
practitioner treating Mr Zuma.
4.      If,
on the postponed date, Mr Zuma applies for a further postponement,
his application shall
be supported by the
viva voce
evidence
of a medical practitioner treating him, who may be cross-examined by
the State, and the State may adduce rebutting
viva voce
evidence
,
either there and then, or at an adjourned hearing.’
[34]   On
10 August 2021 an application for the adjournment of the proceedings
scheduled for that day was issued.
The founding affidavit to that
application deposed to by Mr Zuma’s attorney, Mr Thusini, on 9
August 2021 explained that:
‘
On 6 August 2021,
the First Accused was admitted to hospital to undergo extensive
medical evaluation and care. I annex a letter
(FA2) from Brigadier
General (Dr) MZ Mdutywa (General Officer Commanding Area Health
Formation) of the SA Military Health Service
dated 8 August 2021
addressed to the Head of the Centre (Estcourt Correctional Centre)
wherein a fuller context of the First Accused’s
hospitalisation
is explained.’
[35]   Brigadier-General
(Dr) Mdutywa) is the official who had been officially assigned to
lead the medical team
attending to Mr Zuma. He deposed to a
confirmatory affidavit, dated 8 August 2021, confirming the contents
of Mr Thusini’s
affidavit. The letter of Brigadier General (Dr)
Mdutywa dated 8 August 2021 reads as follows:
‘
MEDICAL SUPPORT TO
THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND FORMER PRESIDENTS
1.      The
above matter refers.
2.      The
South African National Defence Force is responsible for medical
support to the current
President of the Republic of South Africa, the
former Presidents of the Republic and the Deputy Presidents of the
Republic of South
Africa through the office of the Surgeon General
who is the Surgeon General of the South African National Defence
Force who commands
the Presidential Medical Unit situated at
Bryntirion Estate (Government Complex).
3.      The
Former President Jacob Gedleyihlekisa Zuma has been under the care of
the unit since he
was appointed the Deputy President of the Republic
of South Africa in 1999 and the healthcare is continuous. On 28
November 2020,
the President was put under active care and support
after he suffered a traumatic injury.
4.     This
is to inform you that Mr Zuma has been admitted to hospital as of the
06 August 2021. He is
undergoing extensive medical evaluation and
care as a result of his condition that that needed an extensive
emergency procedure
that has been delayed for 18 months due to
compounding legal matters and recent incarceration and cannot be
delayed any further
as it carries a significant risk to his life. The
medical team is actively monitoring his progress and will inform you
soon as
to the prognosis and outcome thereof through a medical
report.
5.     We
trust that the court processes will accommodate this urgent health
programme such that we can
be able to work swiftly to restore his
health. The minimum proposed period of care is six months during
which periodic reports
will be communicated to advise on possible
availability of any further engagements on your end.
6.     We
further appeal that you treat this information with the
confidentiality it deserves.’
[36]   An
affidavit, described as ‘The State’s affidavit regarding
the postponement of the proceedings
on 10 August 2021’, was
also filed by Mr Downer, and confirmed by his colleague in the NPA,
Ms Deneshree Naicker, insofar
as it dealt with matters in her
personal knowledge and not in Mr Downer’s knowledge. It
recorded, inter alia: that the Acting
Regional Commissioner of
Correctional Services in KZN had advised Ms Naicker that Mr Zuma
would not be brought to court as per
the requisition request of the
NPA, as he was hospitalised in Pretoria; and that on Sunday 8 August
2021 at 14h24 Ms Naicker, the
Director of Public Prosecutions, KZN
(Ms Zungu) and Mr Downer had received an email from the Head of the
Correctional Centre where
Mr Zuma had been detained, attaching the
aforesaid letter from Brigadier General (Dr) Mdutywa. Mr Downer’s
affidavit recorded
that the State was not satisfied with the vague
generalities in the letter regarding Mr Zuma’s ‘condition’,
‘extensive
emergency procedure’ and the ‘minimum
proposed period of care of six months’.
[37]   Presented
with the fait accompli that Mr Zuma would not attend court on 10
August 2021 due to his hospitalization,
the parties agreed, and
during a virtual hearing on 10 August 2021 I accordingly granted the
following order without opposition:
‘
1.     The
matter is postponed to 09 and 10
th
September 2021
2.      The
medical report in respect of Mr Zuma is to be delivered by not later
than 20 August 2021
3.      It
is directed that the State may appoint a medical practitioner of its
choice to examine
Mr Zuma, and if necessary to give evidence, as to
his fitness to attend court and stand trial.’
[38]   The
order of 10 August 2021 was not complied with strictly, at least
insofar as the medical report in respect
of Mr Zuma, was not
delivered timeously. Indeed, I have not had sight thereof to date.
The
hearing of 9 and 10 September 2021
[39]
On
8 September 2021, Mr Zuma filed a notice of application supported by
a supplementary affidavit deposed to by his attorney, Mr
Thusini (the
supplementary evidence affidavit) raising, in addition to what was
alleged in the original special plea, two further
alleged acts of
misconduct said to be ‘inimical to the title or authority to
prosecute as that term is intended to mean in
section 106(1)(h)
of
the CPA’. These further acts are (a)
the
‘recent deliberate leaking of the medical report of Mr Zuma’s
medical situation to the media, coupled with the NPA’s
stance
on that medical report’; and (b) the ‘unlawful attempted
physical examination of Mr Zuma.’ This supplementary
evidence
affidavit recorded that Mr Zuma had been ‘released from custody
on medical parole due to his deteriorating ill health
and on the
determination by the statutory parole board that he is not fit to
serve a custodial sentence’, from Sunday 5 September
2021.
[40]   The
State agreed to time limits to file an answering supplementary
affidavit. An order was accordingly granted
on 9 September 2021, with
the following being material to this judgment:
‘
1.      The
matter is adjourned, in the absence of the first accused and the
representative of the
second accused, to 10h00 on
21
and
22
September 2021
, in open court in Pietermaritzburg, for:
1.1    the
first accused’s special plea in terms of
section 106(1)(h)
and
(4) to be heard;
1.2    if
the first accused applies for a further postponement, his application
for a further postponement to
be heard, which will include the
necessary evidence on both sides being led.
2.      In
respect of the application for leave to supplement, it is directed
that:
2.1    the
State shall deliver its answering affidavit on or before 16 September
2021;
2.2    the
first accused shall deliver his replying affidavit, if any, on or
before 13h00 on 20 September 2021.
3.
. . .’
The
hearing of 21 and 22 September 2021 in the absence of Mr Zuma
[41]   The
State’s answering affidavit to the supplementary evidence
affidavit was filed timeously in accordance
with the order of 9
September 2021. The replying affidavit was transmitted to my
Registrar only in the afternoon before the special
plea was to be
heard.
[42]   The
replying affidavit by Mr Thusini, supported by a confirmatory
affidavit from Lieutenant-General Dr Zola
Dabula, the Surgeon-General
of the South African National Defence Force who is described as ‘the
Head of the treating doctors’,
recorded that the State and Mr
Zuma’s medical advisers had not reached agreement as to Mr
Zuma’s fitness to attend
court and stand trial, and that ‘due
to the advice of his doctors he will remain within the Gauteng
province so as to be
within their reach until they determine that he
may return to his house in the province of KwaZulu-Natal’, and
concluded:
‘
29.    In
the circumstances the obvious and sensible thing to do is to give the
medical practitioners sufficient
time and space to succeed or fail to
issue such a joint report with or without a consensus viewpoint on
the pivotal question of
Mr Zuma’s fitness to stand trial.
30.    Until
then the matter must proceed with the long overdue hearing of the
section 106(1)(h)
plea proceedings which ought properly to be
concluded irrespective of the outcome of the separate medical
processes. It is thus
(sic) prudent, pragmatic and efficient approach
which is favoured by Mr Zuma.
31.    Accordingly,
Mr Zuma is not seeking a postponement of the matter. With the leave
of the court, if necessary,
arrangements which are suitable to him
will be made by his legal and/or medical teams to cater for the
prejudice which he would
otherwise suffer from the matter being
argued in his physical absence.’
[43]   The
relevant parts of
s 159
of the CPA provide:
‘
(2)
If
two or more accused appear jointly at criminal proceedings and –
(a)
the
court is at any time after the commencement of the proceedings
satisfied, upon application made to it by any accused in person
or by
his representative –
(i)     that
the physical condition of that accused is such that he is unable to
attend the proceedings
or that it is undesirable that he should
attend the proceedings; or
(ii)     that
circumstances relating to the illness or death of a member of the
family of that accused
make his absence from the proceedings
necessary; or
(b)
any
of the accused is absent from the proceedings, whether under the
provisions of subsection (1) or without leave of the court,
the
court, if it is of the opinion that the proceedings cannot be
postponed without undue prejudice, embarrassment or inconvenience
to
the prosecution or any co- accused or any witness in attendance or
subpoenaed to attend, may –
(aa)
in
the case of paragraph
(a)
,
authorize the absence of the accused concerned from the proceedings
for a period determined by the court and on the conditions
which the
court may deem fit to impose; and
(bb)
direct
that the proceedings be proceeded with in the absence of the accused
concerned.
’
[44]   In
the light of the allegation in the replying affidavit, confirmed by
the Surgeon-General, that Mr Zuma,
on the professional advice of his
doctors was required ‘to remain within the Gauteng province so
as to be within their reach’,
it was clearly an instance where
the physical condition of Mr Zuma was such that he was ‘unable
to attend the proceedings
or that it was undesirable that he should
attend the proceedings,’ as contemplated in
s 159(2)
(a)
(i).
It was furthermore plainly convenient that the proceedings in terms
of
s 106(1)
(h)
and
s 106
(4) be proceeded with in his absence,
as Mr Zuma also contended in the paragraphs from the replying
affidavit of Mr Thusini quoted
above. The hearing of the special plea
was long overdue. The delays in having the special plea heard has
inconvenienced the State
representing the general public. The
adjudication of the special plea has to precede the hearing of the
trial. The delay in the
determination thereof therefore inevitably
delays the trial in respect of Thales and also results in
inconvenience and undue prejudice
also to Thales. Mr Zuma is also
entitled to a speedy hearing. The requirements of
s 159(2)
(a)
(i)
of the CPA being satisfied, I determined that the special plea could
and should proceed in the absence of Mr Zuma. I accordingly

authorised the absence of Mr Zuma, and excused him from further
attendance. Mr Mpofu, on enquiry, confirmed that Mr Zuma waived
any
right to be present during the special plea proceedings.
[45]   The
matter could finally proceed to argument on the affidavits exchanged,
subject to any possible material
disputes of fact, being referred for
the hearing of oral evidence.
Oral
evidence and determining the special plea by ‘trial’, as
opposed to on affidavit
[46]   Before
considering the merits of the special plea on the affidavits, it is
necessary to refer briefly to an
argument, advanced on behalf of Mr
Zuma, that the special plea had to be determined by trial
proceedings, as opposed to on the
affidavits. This was sought, both
as an extension of the argument that the special plea should be
referred to oral evidence, and
as part of an argument that the
special plea could only, as a matter of law, be determined by way of
a trial.
[47]   It
was only from the time when the replying affidavit to the special
plea was filed, that Mr Zuma had requested
that
viva voce
evidence be received in support of his special plea. The contention
that the special plea could only be determined by way of a
trial,
with oral evidence, was pursued by Mr Mpofu from the bar at the
hearing on 19 July 2021. Mr Mpofu invoked the provisions
of
s 108
of
the CPA in support of that contention.
[48]
Section
108
provides that ‘[i]f an accused pleads a plea other than a
plea of guilty, he shall, subject to the provisions of
sections 115
,
122
and
141
(3), by such plea be deemed to demand that the issues
raised by the plea
be tried
.’ (emphasis added)
[49]   Mr
Mpofu submitted with reference to s 35(3)
(e)
of the
Constitution, which provides that an accused is entitled to be
present when being ‘tried’, that ‘tried’
in s
108 means a trial with oral evidence, hence that the special plea
required that oral evidence be led, as opposed to evidence
being
adduced on affidavit, which would then also allow for Mr Zuma’s
request that Mr Downer be available to be questioned
generally on his
past involvement in Mr Zuma’s prosecution and the other
complaints raised by Mr Zuma.
[50]   If
that interpretation of s 108 is correct, then the affidavits filed,
or at a minimum, the answering affidavit
with annexures and the
replying affidavit with annexures, would have been unnecessary, and a
waste.
[51]   By
the time the supplementary evidence affidavit, referred to above, had
been filed on 8 September 2021, Mr
Zuma’s demand for a trial
hearing had become somewhat attenuated, and an adjudication of the
special plea on the affidavits
was favoured. In the supplementary
evidence affidavit, Mr Thusini stated:
‘
I am advised that
this application will be approached by the application,
mutatis
mutandis
, of the principles set out in Rule 6(5)(e) of the Rules
of Court, read with sections 106 and 115 of the CPA, as well as
section
173 of the Constitution. If necessary, legal argument will be
advanced in this regard.’
[52]
A
number of observations need to be made in respect of the aforesaid
arguments for a trial and that oral evidence be received, rather
than
the special plea being decided on affidavit. Firstly, Mr Zuma never
expressed the wish to adduce oral evidence in either his
notice of
the special plea, nor the special plea itself, nor in his founding
affidavit, it being raised for the first time in reply.
Secondly,
that ‘tried’, in my view, does not denote only a trial
with oral evidence, but would include a legal adjudication
of the
special plea by any appropriate process this court might approve,
obviously with due observance of Mr Zuma’s constitutional

rights. Thirdly, that the special plea was raised in the terms in
which it was pleaded, namely with reference to the subsection
under
which it was raised and identifying the evidence in support thereof
so that this court and the State would know on what grounds
it was
based. If, for example, the special plea has no merit and is without
any factual basis, then there should be no reason why,
after hearing
argument and following such procedure as this court approves in
regulating the proceedings before it, as it is entitled
to do
pursuant to the provisions of s 173 of the Constitution,
[10]
the special plea should not be dismissed summarily on the contents of
the special plea and founding affidavit alone.
[53]   In
this instance, the interests of justice clearly demand that the
special plea be dealt with as expeditiously
as possible. The charges
go back to events which occurred more than 15 years ago. All the
parties are desirous of achieving finality.
It made good sense that
the special plea be tried by the exchange of, and in the light of the
contents of the affidavits, agreed
to be exchanged between Mr Zuma
and the State. An oral hearing is not required, neither on the
wording of s 106(1)
(h)
, s 108 of the CPA, or the law
generally. If any real disputes of fact on material issues in the
special plea were to arise on the
affidavits, then those disputed
factual issues, if properly identified, could be dealt with, if needs
be, by an appropriate reference
of the disputed issues only to oral
evidence, or alternatively to trial.
[54]
It
is for the court to determine the appropriate procedure, depending on
the facts of each case, for adjudicating a special plea.
Hence, for
example, in
S
v Moussa,
[11]
on
which reliance was placed by Mr Mpofu, the court, after a plea in
terms of s 106(1)
(h)
of the CPA was tendered, ordered that the special plea should be
dealt with separately and upfront in a manner germane to a so-called

‘trial within a trial’, with the leading of oral
evidence. That was an appropriate direction, having regard to the

factual issues in dispute in that case. The special plea in the trial
before this court has to be tried according to the procedure

determined and sanctioned by the order which I granted providing for
the exchange of affidavits, that is on the affidavits.
[55]   There
is no reason in logic, law or fairness, why the special plea should
not be tried on the contents of
the affidavits, particularly where
that mode of placing relevant evidence before the court in respect of
the special plea, was
chosen by Mr Zuma at the outset, content to do
so on affidavit, and with no assertion being expressed of a desire to
lead viva
voce evidence as in a trial. The State agreed to such
procedure and the procedure was sanctioned by the order this court
granted.
[56]
Whether
Uniform rule 6(5)
(g)
and the principle in
Plascon
Evans
[12]
will find application in the adjudication of the special plea should
a real dispute of fact in respect of a material issue arise,
is a
debate possibly to be considered elsewhere. But that the hearing of
the special plea could and should be determined on the
issues arising
from the affidavits, was clearly competent and proper.
[57]   But
even in the alternative, if I was wrong and s 108 of the CPA was
somehow to be interpreted to require
and permit the special plea to
be ‘tried’ only by the leading of
viva voce
evidence, and not by affidavit, then I consider the position to be as
follows: Mr Zuma was required to raise the special plea and
to
provide details thereof when the special plea was entered with
sufficient particularity so this court and the State would be

properly appraised of the exact nature of the special plea and the
grounds therefor. That could be done by the filing of a notice

setting out the detailed grounds for raising such a plea. That is
what Mr Zuma in fact did in the special plea. He furthermore
chose to
amplify the grounds for the special plea in his detailed founding
affidavit. Nothing would preclude the special plea being
tried on his
version, assuming the correctness of the grounds advanced in support
of his plea for the purposes of argument, and
a conclusion being
reached, as a matter of law, as if on exception in a civil matter,
that such grounds do not begin to make out
a case that Mr Downer
lacks the title to prosecute.
[58]   In
conclusion on this issue, it is significant that in the application
for supplementary evidence filed on
7 September 2021, Mr Zuma
supported the adjudication of the special plea on the affidavits,
when he gave notice that he would seek
‘
an order granting
leave
to admit into evidence the First Accused’s
supplementary affidavit
filed in terms of section 115 of the
Criminal Procedure Act 51 of 1977 (the CPA) in so far as it relates
to the additional plea
brought in terms of section 106(1)(h) read
with section 106(4) of the CPA’ (emphasis added).
The
affidavit of Mr Thusini, Mr Zuma’s attorney, filed in support
of that application, does state that the supplementary ‘affidavit

evidence is tendered only insofar as the section 106(1)(h) plea was
introduced on paper but without abandoning the right of the
accused
to have his plea tried by leading of oral evidence’. He however
also stated that he is ‘advised that this application
will be
approached by the application or adaptation, mutatis mutandis, of the
principles set out in Rule 6(5)(e) of the Rules of
Court, read with
sections 106 and 115 of the CPA, as well as section 173 of the
Constitution.’ Those concessions of law are
probably correctly
made.
[59]   The
argument that there should be a reference to trial, in respect of
what were referred to as issues in respect
of which the matter could
not be decided on the facts admitted by the State on the affidavits,
was again raised by Mr Mpofu when
arguing the special plea on 22
September 2021. Mr Trengove SC for the State pointed out that there
has not been any attempt to
identity these issues, and that Mr Zuma
was content to claim a general referral to trial. Mr Mpofu’s
retort was that the
issues were identified, being the issues
remaining and in respect of which the facts were not admitted by Mr
Downer. In my respectful
view that is not an answer to the problem. A
referral to oral evidence does not refer to issues, but requires an
identification
of factual evidence that might underlie the material
issues, which are disputed. No specific factual disputes were
identified.
[60]   What
one is left with is that the parties were agreed that the
adjudication of the special plea should proceed
on the affidavits
exchanged. That is undoubtedly a correct position in law having
regard to the wide powers a court has in terms
of s 173 of the
Constitution to protect and regulate its own process, and to develop
the common law, taking into account the interests
of justice.
Section
106(4) of the CPA and oral evidence
[61]   There
is one final aspect to consider in the context of a possible need for
a referral to oral evidence. During
his address in court Mr Mpofu
stated that if the special plea was upheld, that Mr Zuma wanted to
lead evidence to demonstrate the
particular nature of the
prosecutorial bias, to justify his demand for an acquittal pursuant
to s 106(4) of the CPA. This followed
in the context of his
submission that not every finding that a prosecutor has no title to
prosecute, resulting in his/her removal,
would entitle an accused to
an acquittal. It was reasoned that if left unqualified, where it is
found that a prosecutor lacks title
because he or she does not have
the academic or other qualifications or authority required to be a
prosecutor, a murderer who fortuitously
finds himself to have such an
‘unqualified’ prosecutor prosecuting his trial could
successfully raise a plea in terms
of s 106(1)
(h)
and then
demand to be acquitted. That would offend one’s sense of
justice. Mr Mpofu accordingly submitted that s106(4) envisages
a
range, or continuum, of instances where a plea of a lack of title
might succeed, and that whether an acquittal of the accused
should
indeed follow, will require that evidence be led to justify such an
order. It was submitted that Mr Zuma requires such an
opportunity, as
he believes that he should be entitled to an acquittal.
[62]   Even
ignoring a consideration of the principles relating to
autrefois
acquit
for the moment, this argument by Mr Mpofu need not be
considered further. The plain meaning of s 106(4) does not
contemplate such
a range of instances, or a court having a
discretion, depending on the facts giving rise to the particular lack
of title of a prosecutor,
to either acquit an accused, or not. On the
plain wording of s 106(4), if any plea, other than a plea that the
court lacks jurisdiction
succeeds, the accused shall ‘be
entitled to demand that he either be acquitted or convicted.’
Whether a subsequent
prosecution could then be successfully met by a
plea of ‘
autrefois acquit’
, is an issue beyond the
scope of this judgment. But that on the ordinary meaning of the
provisions of s 106(4), an accused who
has successfully established
the jurisdictional requirement set by s 106(4) that the prosecutor in
his/her criminal trial lacks
the title to prosecute, can demand,
without any qualification, to be acquitted, is a significant legal
consequence which not only
affects a proper interpretation of s
106(4) but also, in context, affects the meaning to be attributed to
the words ‘title
to prosecute’ in s 106(1)
(h),
to
prevent such an absurd result. This will hopefully become more
apparent when considering the meaning to be attributed to ‘title’

in the phrase ‘title to prosecute’ below.
[63]   What
is however very clear, is that before s 106(4) can possibly find
application, the special plea must succeed.
If the special plea
fails, then there is no scope for the provisions of s 106(4) to
apply.
Oral
evidence on real disputes of fact concerning material issues
[64]   I
shall consider whether there is a need for oral evidence if there are
real disputes of fact, not disputes
arising from mere conjecture,
suspicion or speculation, in regard to issues which are material to
the proper adjudication of the
special plea, in my evaluation of the
argument for a secondary and wider interpretation of the phrase
‘title’ below.
I have concluded that there is no need for
oral evidence, for reasons which will be articulated. In my primary
findings on the
meaning of the phrase ‘title to prosecute’
I shall proceed on the basis of accepting, purely for the purpose of
the
preliminary findings in this judgment, that the factual
submissions advanced by Mr Zuma are correct. The legal effect,
conclusions
and inferences to be drawn from facts thus assumed to be
correct for the purposes of argument, are obviously for this court to
determine. The inferences and conclusions sought to be drawn by r
Zuma from any facts, no matter how honestly held by him, are plainly

not binding on this court.
The
complaints raised by Mr Zuma in support of the special plea
[65]   Before
dealing with the interpretation of the phrase ‘title to
prosecute’ it is necessary to provide
the reader of this
judgment with a precis of the complaints raised by Mr Zuma in support
of his special plea.
[66]   The
parts of Mr Zuma’s special plea material to this judgment,
which set out the grounds of complaint,
read as follows:
‘
PLEA IN TERMS OF
SECTION 106(1)(h) AND 106(4) OF THE
CRIMINAL PROCEDURE ACT 51 OF 1977
1.      I
give notice of my intention to raise a further plea in terms of
section 106(1)(h)
of the
Criminal Procedure Act 51 of 1977
that, for
reasons that are set out in the plea explanation, Mr Downer SC should
be removed as the prosecutor in this case as he
has no title to
prosecute. There are facts and circumstances involving the conduct of
Mr Downer SC and the NPA generally relevant
to the protection and
interpretation of
my rights under section 35(3) of the
Constitution
for which it is necessary that Mr Downer SC be
removed as a prosecutor in the case.
2.      Furthermore,
there are facts and circumstances that give me a reasonable
apprehension that
Mr Downer SC has conducted himself in this case in
a manner that
lacks the independence and impartiality
that is
necessary for a lawful prosecution. Examining his role in the
totality of the facts and circumstances of this case, Mr
Downer has
failed to uphold the standards of
prosecutorial independence and
impartiality needed to ensure that my trial is fair and conducted in
accordance with the Constitution
and common law.
3.      In
any event, Mr Downer has played a role that makes him
an essential
witness
on the issue of whether there was political interference,
the nature of which violates
my fair trial rights
. For
example, he files an affidavit in support of the Democratic
Alliance’s application to review and set aside a decision
by
the National Prosecuting Authority (NPA) to terminate my prosecution
on the basis set out in the affidavit of Hofmeyr, the National
Deputy
Director of Public Prosecutions and Adv Mpshe, who had served the NPA
as the Acting National Director of Public Prosecutions.
His
opposition to the NPA’s basis for defending the termination of
the prosecution decision places hin in a position of
a prosecutor
who is neither independent nor impartial
in relation to my rights
to a fair trial or the obligation of the State to ensure that I enjoy
a fair trial
. His opposition of the NPA’s evidence that
my prosecution would not be fair as required in terms of section 35
of the Constitution,
because it had been exposed to unlawful
political manipulation, disqualifies him from prosecuting me. The
evidence of the NPA that
my prosecution would not be fair as a
consequence of criminal and unlawful political interference
disqualifies Mr. Downer from
conducting
a fair prosecution
. In
any event, Mr. Downer’s determination to conduct this
prosecution in the face of the evidence of the NPA relating to
the
criminal and unlawful political interference and manipulation of my
prosecution means that
he lacks the independence and impartiality
required to conduct a lawful prosecution.
4.      In
the event that my plea to have Mr Downer removed in terms of section
106(1)(h) of the Criminal
Procedure Act, 51 of 1977 (“CPA”)
is successful, I am entitled to be acquitted in terms of section
106(4) of the CPA
on the basis that no fair trial may be conducted
under the circumstances set out in the plea explanation.
5.      I
set out my grounds of this plea under
section 106(1)(h)
of the
Criminal Procedure Act in
my affidavit attached herein as “JZG1”
.’ (emphasis added)
[67]   The
founding affidavit contains a scattering of allegations in support of
the special plea. When I enquired
from Mr Mpofu which specific
grounds, or facts and circumstances, were relied upon, he confined
them to the twelve instances that
had been identified by the State in
its heads of argument, to which, he said, should be added the further
two grounds of complaint
introduced in the supplementary evidence
affidavit. The twelve instances identified by the State in its heads
are:
(a)
Mr Ngcuka’s refusal to authorise searches of Mr Zuma’s
properties;
(b)
Mr Ngcuka’s decision not to prosecute Mr Zuma;
(c)
Mr Downer’s dismissal of the Public Protector’s report;
(d)
Mr Downer’s conduct in the Shaik trial;
(e)
Nicholson J’s findings of political interference;
(f)
Mr Mpshe’s April 2009 decision and Mr Hofmeyr’s
affidavit;
(g)
Mr Downer’s public reaction to Mr Mpshe’s decision;
(h)
Mr Downer’s affidavit in the Spy Tapes matter;
(i)
‘Browse Mole’, Mr McCarthy and foreign intelligence
services;
(j)
Mr Downer’s failure to report political interference;
(k)
Mr Downer’s alleged leaks to the media;
(l)
Mr Downer’s insistence that Mr Zuma be prosecuted;
The
further two grounds in the Supplementary evidence affidavit
[13]
are:
(m)
The leaking of confidential medical information;
(n)
The unlawful attempted physical examination of Mr Zuma.
The
issues for determination
[68]
It
is trite law, reaffirmed by the Supreme Court of Appeal in
NDPP
v Zuma
,
[14]
that a judgment must be confined to the issues properly before the
court; it must not decide matters not germane or relevant; it
must
not create new factual issues, nor make gratuitous findings against
persons who were not called upon to defend themselves;
and it must
distinguish between allegation, fact and suspicion.
[15]
[69]   The
issue for determination before this court is the special plea that Mr
Downer allegedly lacks title to
prosecute, as provided in
s 106(1)
(h)
of the CPA, and nothing more. That is the only relief claimed and in
respect of which notice was given.
[70]   Such
determination will involve as a primary sub issue, the interpretation
of
s 106(1)
(h)
and more specifically the meaning to be given
to the word ‘title’; specifically whether it should be
assigned a narrow
meaning of a prosecutor’s standing or
authority to prosecute, which Mr Zuma has not disputed Mr Downer
satisfies, or whether
the word ‘title’ should be given an
extended or wider meaning, as contended for by Mr Zuma, to include
lack of objectivity
and independence of the prosecutor, bias, and
whether the NPA and/or the prosecutor has acted in a manner which
might violate Mr
Zuma’s rights to a fair trial. If that primary
sub issue is answered in favour of the State, then it is the end of
special
plea and the present enquiry. If that issue is answered in
favour of Mr Zuma and a wider meaning of the word ‘title’

is accepted as the correct interpretation, then the following
subsidiary issues arise for consideration, namely: whether the
factual
grounds contended for by Mr Zuma have been established for
such a plea to succeed; and if so, whether it will then follow that
Mr Zuma is entitled to be acquitted in terms of
s 106(4).
The
primary issue: the meaning of ‘the prosecutor has no title to
prosecute’
The
term ‘prosecutor’ in
s 106(1)(h)
means the person and not
the State/NPA
[71]   It
is convenient and necessary to start the discussion of what is meant
by the words ‘title’ in
the phrase that the ‘prosecutor
has no title to prosecute’, by stating what ‘prosecutor’
has been held
not to mean.
[72]
In
Ndluli v
Wilken NO
[16]
the Appellate Division unanimously held that in a case of a
prosecution at the instance of the State, like the present, the word

‘
prosecutor
’
in
s 106(1)
(h)
refers not to the State, but to the person who acts as prosecutor in
the court;
[17]
and that the objection in a special plea under
s 106(1)
(h)
is an objection to the right, title and interest, or the authority of
that person, to act as prosecutor in the case.
[18]
In terms of the legal principle of
stare
decisis
(adherence
to decided precedents) I am bound by the decision in
Ndluli,
even if I was to believe that it might be wrong,
[19]
which I do not.
[73]   In
paragraph 31 of his replying affidavit Mr Zuma concedes that our
courts have held that the reference to
‘prosecutor’ in
s
106(1)
(h)
is not to the State, but to the person who acts as
prosecutor. That is undoubtedly a correct concession of law.
[74]   Notwithstanding
that concession and the clear statement in
Ndluli
, there are
numerous allegations in the affidavits of Mr Zuma that the
State/National Prosecuting Authority (NPA), as entity, as
opposed to
Mr Downer (as natural person and prosecutor), has been disqualified
from prosecuting him, because of alleged political
interference by
others, or on the basis of some other complaint. These complaints
against or in respect of the State, the NPA and
officials of the NPA
other than Mr Downer, assuming them to be established, are, following
Ndluli
, not grounds to which regard may be had under the
rubric of the special plea raised in this matter, whether on a narrow
or strict
interpretation of ‘title to prosecute’.
[75]   Mr
Mpofu argued that there is not a ‘Chinese Wall’ between
the conduct of the State and Mr Downer,
and that the conduct of other
officials in the NPA could be relevant where there is some overlap
with the conduct of Mr Downer.
The conduct of possible rogue elements
in the NPA, and the conduct of Mr Downer must however be kept
separate. The special plea
has as its purpose the removal of Mr
Downer from the prosecution because he lacks title to prosecute. The
conduct of other functionaries
in the State, more particularly
previous National Directors of Public Prosecution, such as Mr Ngcuka,
Mr Pikoli, Mr Mpshe and Mr
Abrahams, or senior employees of the State
such as Mr McCarthy and Mr Hofmeyr, or Ministers of State, such as Dr
Maduna, is not
the conduct of Mr Downer and is not to be imputed
vicariously to Mr Downer. To do so would be to violate the
ratio
decidendi
(reason for the decision) in
Ndluli
. The
conduct of these other officials might, at best, be relevant only to
the extent that Mr Downer personally might be implicated
on a wider
interpretation of the term ‘title’, an issue to which I
shall return when considering Mr Zuma’s alternative
argument
for a wider interpretation of the word ‘title’ below.
[76]
Complaints
raised against the State/NPA which might have affected Mr Zuma’s
trial rights, could at the stage before the commencement
of the
trial, at best have entitled Mr Zuma to a permanent stay of
prosecution, or some similar relief. That is not an issue before
this
court. Mr Zuma’s contention that the State/NPA is incapable of
providing him with a constitutionally fair trial
per
se
has
already received the attention of a full court of this division in
S
v Zuma
[20]
(the permanent stay application), when Mr Zuma’s application
for a permanent stay of prosecution, on the grounds advanced
in that
application, many of which overlap with grounds now advanced in
relation to the conduct of other functionaries of the State/NPA,
was
dismissed. I am bound by the
rationes
decidendi
(reasons for the decisions) in that judgment.
[77]
The
findings of the full court notwithstanding, should any of these
complaints, or any other complaints material and relevant to
any
issue in the trial, impair Mr Zuma’s fair trial rights arise
during the trial, then they can be revisited to ensure that,
at the
end of the trial, Mr Zuma will have received a constitutionally fair
trial. But that is something to consider during the
trial only when
the materiality of any such allegations in respect of issues and
evidence revealed to be relevant, are established.
Any infringement
of fair trail rights, which is the true basis of Mr Zuma’s
complaints, is best determined when the evidence
in the criminal
trial has been heard, digested in the light of conflicting evidence,
and the credibility to be attached to the
evidence has been properly
assessed. This was also the conclusion reached by the SCA in
Zuma
v Democratic Alliance
[21]
(the Spy Tapes judgment). The possible infringement of fair trial
rights does not arise for consideration under the special plea.
[78]   In
conclusion on this issue, there was a suggestion by Mr Mpofu during
argument that
Ndluli
is no longer good law because it was
decided before the advent of our Constitutional democracy, and
therefore did not reflect the
constitutional values enshrined in the
Constitution. It is correct that
Ndluli
was decided before the
Constitution came into effect, but I have no doubt that it is still
good law on the meaning of the word
‘prosecutor’, in the
phrase ‘the prosecutor has no title to prosecute’.
Instances of material prosecutorial
misconduct by officials
representing the State or the NPA as an institution, if not due to
unlawful conduct by functionaries which
can legitimately be set aside
on review, should be challenged by way of an application for a
permanent stay of prosecution, but
do not arise for determination
under a special plea in terms of s 106(1)
(h)
of the CPA, which
is a procedure peculiar to the prosecutor, as I shall endeavour to
demonstrate.
Objecting
to a particular prosecutor
[79]   Objections
to a particular prosecutor prosecuting in a particular criminal trial
might vary in nature and
could conceivably take various forms,
depending on the facts of each case, and the type of prosecutor
involved.
[80]   South
African law recognises various categories of prosecutors. The
majority are public prosecutors employed
by the State, who derive
their authority/title to prosecute from legislation and their
appointment to the position of public prosecutors
representing the
State; others are private prosecutors, acting in terms of s 7 of the
CPA where the Director of Public Prosecutions
(DPP) declined to
prosecute particular charges and has issued a certificate of
nolle
prosequi;
or are prosecutors appointed in terms of s 8 of the CPA
who undertake prosecutions on behalf of statutory bodies upon whom
the right
to prosecute is expressly conferred by law to ‘institute
and conduct a prosecution in respect of such offence,’ as in

the case of, for example, municipalities.
[81]
Objections
to a particular prosecutor prosecuting in a trial may include, to
mention a few, that the prosecutor lacks title to prosecute,
for
example, because he or she has not been properly appointed to the
position of public prosecutor; or has not been properly authorised
to
prosecute on behalf of, for example, a municipality; or, in the case
of a private prosecutor, that he or she is not vested with
the
standing required by s 7 of the CPA to act as prosecutor; or that the
particular authority required to pursue a charge in respect
of a
particular offence, such as the authority required by s 2(4) of
Prevention of Organised Crime Act (POCA),
[22]
has not been granted to the prosecutor; or, may be on the basis that
the prosecutor has been guilty of particular conduct which
would
result in the accused not receiving a constitutionally fair trial,
hence justifying his/her removal or recusal. This list
is not
exhaustive.
The
meaning of ‘title’ in the context of s 106 and the CPA
[82]
The
meaning of the word ‘title’ in s 106(1)
(h)
must be considered in the light of the ordinary meaning of the word,
in the context in which it appears in the CPA, interpreted

purposively, and with due regard to previous decisions in which it
had been judicially considered.
[23]
The context would also include having regard to the different types
of prosecutor in our law to whom the provisions of s 106(1)(
h
)
uniformly has to apply.
Private
prosecutors – s 7 of the CPA
[83]
Dealing
firstly with private prosecutors, a private prosecutor must, pursuant
to s 7 of the CPA, establish a ‘substantial
and peculiar
interest in the issue of the trial arising out of some injury which
he individually suffered in consequence of the
commission of the said
offence’;
[24]
or the
prosecutor must be ‘a husband, if the said offence was
committed in respect of his wife’
[25]
;
or ‘the wife or child or, if there is no wife or child, any of
the next of kin of any deceased person, if the death of such
person
is alleged to have been caused by the said offence’
[26]
,
or must be ‘the legal guardian or curator of a minor or
lunatic, if the said offence was committed against his ward’.
[27]
The private prosecutor must have that standing/title to prosecute.
[84]
In
its ordinary meaning, the word ‘title’ connotes the
locus
standi
(legal standing) to act,
[28]
such as the aforesaid prerequisite of standing require of private
prosecutors.
[29]
[85]
It
is accordingly not surprising that the special plea of ‘no
title to prosecute’ has historically been invoked and
raised
successfully mainly in private prosecutions, as in
Williams
v Janse van Rensburg (2)
.
[30]
By the very nature of the interest/standing a private prosecutor is
required to have, to have ‘title to prosecute’,
it
invariably follows that he/she can never be completely objective and
independent in the sense one would expect of a presiding
judicial
officer. Indeed, the private prosecutor may even be the
complainant.
[31]
The
requirement of such standing or ‘title’, which
effectively means that every such private prosecutor is required
to
have what is a direct and substantial interest in the case they
prosecute, is wholly incompatible with notions of independence
and
impartiality. If a lack of such independence and impartiality was to
negate a prosecutor’s ‘title to prosecute’,
then
most, if not all private prosecutors would have ‘no title to
prosecute’ as contemplated in s106(1)
(h)
.
That would be an absurd interpretation. Plainly, a lack of
independence and impartiality on the part of a prosecutor cannot, as

a statement of general principle, mean that a prosecutor otherwise
authorised and having the locus to prosecute, would be deprived
of
that ‘title’ by the very interest and standing he or she
is required to have.
[86]
Included
under this heading would also be objections that a private prosecutor
may not join in a prosecution pursued by another
private prosecutor
against an accused in respect of which he has also been appointed as
a private prosecutor but on a separate
albeit similar count, because
he lacks the standing/title in respect of that prosecution.
[32]
Other
statutory prosecutors – s 8 of the CPA
[87]
As
regards other statutory prosecutors contemplated in s 8 of the CPA,
similar considerations apply. The prosecution conducted by
such a
prosecutor must relate to the offences in respect of which the
statutory body has the right, expressly conferred by law,
to
‘institute and conduct a prosecution’
[33]
otherwise, the prosecutor would have no standing/title to prosecute
that offence. By the very nature of the appointment and function
of
these prosecutors however, they act on behalf of and are required to
promote the best interests of their employer, for example,
a
municipality. They pursue the prosecutions they are authorised to
institute with the proceeds of fines recovered pursuant thereto,

being for the benefit of their employer. This provides them with a
financial interest in the outcome of the prosecution. They would
thus
also not be independent and objective. But that would not deprive
them of the ‘title to prosecute.’
An
‘independent and impartial’ prosecutor
[88]
It
follows from the above, that a right to an independent and impartial
prosecutor is incompatible with prosecutions by private
and statutory
prosecutors,
[34]
by the very
nature of those prosecutions. A lack of independence and impartiality
on the part of a private or statutory prosecutor,
could not amount to
a lack of ‘title to prosecute’, otherwise every private
and statutory prosecutor would lack the
‘title to prosecute.’
Public
prosecutors
[89]   The
same principle applies to public prosecutors employed by the State.
Section 106(1)
(h)
draws no distinction between public and
other prosecutors (private and statutory). Hence, as a matter of
consistent statutory interpretation,
viz-a viz public prosecutors, a
lack of independence and impartiality would also not amount to a lack
of title. The lack of ‘title
to prosecute’, provided for
unqualified in s 106(1)(
h
), cannot, at the level of
interpretation, mean a lack of independence and impartiality in
respect of one type of prosecutor, that
is public prosecutors, but
not others, that is private prosecutors.
[90]   Public
prosecutors derive their standing from s 179 of the Constitution and
the provisions of the National
Prosecuting Authority Act 32 of 1998
(‘the NPA Act’).
Section
179(1), (2) and (4) of the Constitution provides:
‘
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)     .
. .
(4)    National
legislation must ensure that the prosecuting authority exercises its
functions without fear,
favour or prejudice.’
[91]   The
Act of Parliament and national legislation envisaged by section
179(1) and (4), is the NPA Act. Section
2 of the NPA Act provides
that the NPA is the single national prosecuting authority established
in terms of s 179 of the Constitution.
Section 4 of the NPA Act
provides that the NPA comprises the National Director of Public
Prosecutions (NDPP), Deputy National Directors
of Public Prosecutions
(Deputy NDPP), Directors of Public Prosecutions (DPPs), Deputy
Directors of Public Prosecutions (Deputy
DPPs) and prosecutors.
Section 20(1) of the NPA Act provides:
‘
The power, as
contemplated in section 179(2) and all other relevant sections of the
Constitution, to—
(a)
institute
and conduct criminal proceedings on behalf of the State;
(b)
carry
out any necessary functions incidental to instituting and conducting
such criminal proceedings;
and
(c)
discontinue
criminal proceedings,
vests in the
prosecuting
authority
and shall, for all purposes, be exercised on behalf of
the
Republic
.’ (emphasis in original)
[92]
Public
prosecutors derive their authority to prosecute from their
appointment. Hence, an advocate acting on behalf of a Director
of
Public Prosecutions (DPP) can always be asked to present his or her
delegation.
[35]
Public
prosecutors do not however have to establish a legal interest in the
subject matter of the prosecution, to vest them with
the title to
prosecute. They represent the interest of the general populace in the
prosecution of crime. Although the regularity
of their appointment
might affect their ‘title to prosecute’, their
professional enthusiasm in the prosecution they
pursue, believing
passionately in their cause, and pursuing it with all the zest and
zeal of a dedicated and conscientious prosecutor
presenting the case
of the State and the general populace, and, to that extent being
perceived as not independent and objective,
does not result in a lack
of ‘title to prosecute.’ Of that, there can be no doubt.
Complete independence and objectivity,
or a lack of bias, as with a
presiding officer, is not what our law and courts require of
prosecutors, as I shall endeavour to
show when considering the case
law on the interpretation of s 106(1)
(h)
below.
[93]
The
title to prosecute, in the context of public prosecutors, at best
include their authority to prosecute, such as whether they
have been
properly appointed, or are suitably qualified, or possibly whether
they have the required authorisation in instances
where, although
entitled to prosecute generally, an additional specific authority
might be required to authorise the prosecutor
to pursue a specific
charge. Examples of the latter would include instances of entrapment
where the entrapment had to be authorised
in terms of s 252A(4) of
the CPA, or prosecutions under the provisions of the POCA, where
specific authority is required in terms
of s 2(4) authorising the
prosecutor to prosecute that charge. I say ‘at best’,
based on the statement in
Hiemstra’s
Criminal Procedure
[36]
in the commentary on s 106(1)(h), that:
‘
[t]he plea could
possibly
also be used where there are certain prerequisites in
terms of a statute which have to be complied with before a
prosecution can
take place. An example is
R v Giuseppe and Others
1943 TPD 139
where prisoners of war were charged without the
detaining power's first giving notice to the representative of the
protecting power,
as required by the Geneva Convention.’
(emphasis added)
[94]   It
could never have been intended, for example, that if one of the many
prosecutors employed by the NPA, even
in a specific case, like the
present, where the State is represented in the trial by Mr Downer,
and other prosecutors, that if
one of them might have some defect
attached to his/her appointment(s) as public prosecutor, but could be
replaced by another prosecutor
in the employ of the NPA who is
properly appointed, or the prosecution continue with the remaining
prosecutors only, that such
a ‘defect’ in the appointment
of one would amount to a lack of title to prosecute on behalf of the
other prosecutors,
resulting in the accused being entitled to demand,
in terms of s 106(4), that he be acquitted, no matter how serious the
charges
may be. That alone militates against an interpretation that
the absence of authorisation would result in a lack of title to
prosecute.
However, the aforesaid interpretation of a lack of title
to include a lack of specific authorisation to prosecute appears to
have
been accepted in our law and is now a principle to which I am
bound in accordance with our system of
stare decisis
. Whether
a lack of specific authorisation to prosecute a specific charge has
correctly been accepted as affecting ‘title
to prosecute’,
is not an issue arising for determination in this judgement, as it is
not in dispute that the necessary authority
which Mr Downer requires
to prosecute the charges against Mr Zuma has been granted. My
aforesaid comments and guarded criticisms
are accordingly made merely
in passing to emphasise my interpretation of ‘title to
prosecute’ as being a plea relating
to the standing of the
prosecutor, and nothing wider.
[95]   What
is however significant, at an interpretation level, is that the
provisions of s 106(1)
(h)
have been applied and can be applied
successfully to challenge whether a state prosecutor has been
properly appointed or has the
necessary authorisation. That is
possible, without straining the interpretation of the word ‘title’,
thus giving effect
to the principle of legality, but without
resulting in an interpretation absurdity that all private prosecutors
will lack the ‘title
to prosecute’ because of their
non-independent or non-objective interest in the prosecutions which
they are conducting.
[96]
There
is no dispute that complaints falling within the category where there
is a lack of authority to prosecute, may properly be
raised under s
106(1)
(h)
of the CPA, and if upheld, will result in the removal of the
prosecutor. Whether it might also be possible to pursue such a
challenge
in a separate substantive application for appropriate
declaratory and consequential relief, prior to an accused being
called upon
to plead, is an issue which need not be decided in this
judgment, although, in principle, there appears to be no reason why
that
would not be possible. The present is however not an instance,
as in
Porritt
v National Director of Public Prosecutions
[37]
where the appellants relied on s 106(1)
(h)
of
the CPA, but it had also been agreed between counsel for the parties
that a separate application for the removal of the prosecutor
was
also an issue before the court, and the SCA entertained such an
application, as separate and distinct from the special plea.

Instances of prosecutorial misconduct or an abuse of process may to
be pursued in a separate application for relief that might
be
appropriate, which relief might include the removal of the
prosecutor. But it is a process distinct and separate from the
adjudication
of a special plea in terms of s 106(1)(
h)
of
the CPA
.
The
meaning of ‘title to prosecute’ judicially considered.
[97]   Judicial
pronouncements to which I have been referred, or which I have
identified, are consistent with the
above interpretation of the word
‘title.’
[98]
Mr
Mpofu referred to the decision in
Delport
v S.
[38]
In that judgment the SCA assumed for the purposes of the judgement,
in favour of the appellants without deciding the point, that
the
appointment of the prosecutors was irregular for want of strict
compliance with the relevant provisions of the NPA Act. It
was also
assumed that the appellants were entitled to invoke s 106(1)
(h)
,
as it happened on the facts of that case, midway through the trial.
Delport
accordingly did not deal with what s 106(1)
(h)
encompasses or what is meant by ‘title to prosecute’.
Assumptions had, for the purposes of the judgment, been made
in
favour of the appellants.
[99]
In
Porritt
[39]
the appellants invoked the provisions of s 106(1)(
h
)
to challenge the ‘title’ of the prosecutors in their
trial, on the basis that the prosecutors were perceived to be
biased.
The NPA had appointed two prosecutors, Mr Coetzee SC, who was an
advocate in private practice, and Mr Ferreira, who was
a senior
Deputy Director of Public Prosecutions at the Specialised Commercial
Unit, formerly the Scorpions and subsequently the
Hawks. At the
commencement of the trial the accused tendered a plea in terms of
s106(1)
(h)
alleging that these prosecutors lacked title to prosecute. Two
grounds were advanced in support of that plea. The first ground
was
an alleged lack of authority to prosecute for want of compliance with
s 38 of the NPA Act. The second was that the appointment
of the two
prosecutors was in breach of the accused’s fair trial rights as
encompassed in s 35(3) of the Constitution, specifically
that they
would not serve impartially and carry out their duties without fear,
favour or prejudice – complaints of the very
nature raised by
Mr Zuma. The trial court dismissed the plea on the first ground, but
upheld it on the second ground, that is for
the breach of the
accused’s fair trial rights based on the prosecutors not being
impartial. Although the trial court upheld
the s 106(1)(
h
)
plea on the second ground, for a breach of fair trial rights, it
nonetheless rejected the contention by the accused that it followed

that they were entitled to demand an acquittal in terms of s 106(4).
[100]
It
is against that background that the State in
Porritt
had applied successfully before the trial court for the reservation
of points of law in terms of s 319 of the CPA, which it wanted
to
pursue before the SCA. The point of law persisted with before the SCA
was the legal test to apply, ‘either in terms of
s 106(1)
(h)
of the CPA, or the common law, for the removal of a prosecutor’.
[40]
The State contended that the trial court had applied an incorrect
test in finding that the prosecutors should be removed on the
ground
of an alleged lack of independence or objectivity.
[101]   The
appellants, on the other hand, appealed to the SCA contending that
the trial court, having upheld their
plea in terms of s 106(1)
(h)
,
erred in not acquitting them in terms of s 106(4). Their appeal was
rightly dismissed, for reasons irrelevant to this judgment.
[102]   The
question of law reserved, was answered in favour of the State, the
order of the trial court was set aside,
and was substituted with an
order that:
‘
The application by
the appellants for the removal of Advocates Coetzee and Ferreira is
dismissed’.
The
basis for the aforesaid substituted order included not only that the
alleged breach of the appellants’ fair trial rights
because of
a lack of independence, did not amount to the prosecutors having ‘no
title to prosecute’, contrary to what
the trial court had
found, but also that the separate application for the removal of the
prosecutors, which had not been the basis
of the trial court’s
decision, but which counsel agreed the SCA should consider, failed on
its merits.
[103]
The
SCA found ‘that the removal of the prosecutors was not grounded
on a lack of title in terms of s 106(1)
(h)
of the CPA and the appellants were therefore not entitled to demand
an acquittal in terms of s 106(4) of the CPA’.
[41]
[104]
In
adversarial criminal proceedings, such as ours, it is inevitable that
prosecutors will be partisan. Their role in criminal prosecutions

makes it inevitable that they will be perceived to be biased.
[42]
In
S
v Van Der Westhuizen
[43]
it was said that:
‘
In
our practice it is not the function of a prosecutor disinterestedly
to place a hotchpotch of contradictory evidence before a
court and
then leave the court to make of it what it wills. On the contrary, it
is the obligation of a prosecutor firmly but fairly
and
dispassionately to construct and present a case from what appears to
be credible evidence, and to challenge the evidence of
the accused
and other defence witnesses with a view to discrediting such
evidence, for the very purpose of obtaining a conviction.
That is the
essence of a prosecutor's function in an adversarial system and it is
not peculiar to South Africa.’ (footnotes
omitted)
[105]
The
test in respect of the apprehension of bias of a prosecutor is not
that which applies to a judicial officer, formulated by the

Constitutional Court in
President
of the Republic of South Africa v South African Rugby Football
Union
.
[44]
As pointed out in
Porritt
v National Director of Public Prosecutions
,
[45]
the tests are fundamentally different and it is not axiomatic that a
perception of bias held against a prosecutor will lead to
an accused
not having a fair trial.
[106]
The
SCA cautioned
obiter
(in passing) that its findings did not mean that a prosecutor can
never be disqualified on the ground of bias or apprehension of
bias,
but that will be in instances, which the court illustrated with
reference to the decision in
Smyth
v Ushewokunze
,
[46]
where the prosecutor’s bias affects the accused’s right
to a fair trial. In
Smyth,
an
application based on provisions of the Zimbabwean Constitution, and
not on a provision equivalent to our s 106(1)(
h
),
the prosecution was found to be conducted in a manner which was
‘vindictive and at times patently dishonest and the court
is
deliberately misled’, resulting in an ‘inherent danger of
unfairness to the [accused] attendant upon the first respondent

prosecuting at the trial.’ The Zimbabwe Supreme Court was
satisfied that it was shown that the accused’s right to a
fair
trial was in jeopardy.
[47]
In
similar vein, the SCA in
Porritt
,
with reference to the Constitutional Court’s judgement in
S
v Shaik,
concluded
that:
[48]
‘
The protection of
an accused person, therefore, lies not in a general standard of
independence and impartiality required of all
prosecutors, but in the
right to a fair trial entrenched in s 35(3) of the Constitution. That
right was described in
S v Shaik
in these terms:
“
The right to a
fair trial requires a substantive, rather than a formal or textual
approach. It is clear also that fairness is not
a one - way street
conferring an unlimited right on an accused to demand the most
favourable possible treatment. A fair trial also
requires ‘fairness
to the public as represented by the State. It has to instil
confidence in the criminal justice system
with the public, including
those close to the accused, as well as those distressed by the
audacity and horror of crime.”’
[49]
[107]
The
central objective is to bring about substantial fairness in the
‘ensuing criminal trial (which) will be a matter to be
decided
by the trial court.’
[50]
[108]
Whether
an accused will ultimately receive a fair trial, is a question to be
answered on all the evidence.
[51]
It is probably most appropriately decided, although this is solely in
the discretion of the trial court, at the end of the trial.
[52]
If the alleged lack of objectivity or independence, whether due to
alleged political interference, or influence by outside intelligence

agencies, or any other cause, is such that an accused will not
receive a constitutionally fair trial, then a variety of remedies

might be available, in the discretion of the court, in terms of s
172(1)(b) of the Constitution, as the circumstances may demand.
But
the remedy does not lie in s 106(1)(
h
).
It has nothing to do with the prosecutor’s ‘title to
prosecute.’ And if the fair trial rights of the accused
are
unaffected, then there is no need to remove the prosecutor.
[109]   Mr
Mpofu endeavoured to distinguish
Porritt,
on the basis that
what the appellants in
Porritt
sought was a ‘removal’
of the prosecutors, and not the adjudication of a special plea on a
wider meaning of the words
‘title to prosecute’. I do not
believe that to be a valid point of distinction, for inter alia the
following reasons:
(a)     The
trial court in
Porritt
had upheld the special plea on the
basis of a breach of the accused’s fair trial rights in s 35(3)
of the Constitution that
the prosecutors would not be impartial as
required by the provisions s 32(1) of the NPA Act. On appeal, the SCA
answered the question
of law posed, by finding that these were not
instances of a lack of title. That disposed of the word ‘title’
having
a wider meaning to include a lack of impartiality or a lack of
independence, or conduct in conflict with the requirements of the
NPA
Act.
.
(b)     Insofar
as there was a separate application, additional to the special plea
in terms of s 106(1)
(h)
before the SCA in
Porritt
by
the agreement of counsel, not involving what ‘title to
prosecute’ might mean, which is not the position in the
proceedings
before me, the SCA on the facts, was still not persuaded
that the prosecutors should be removed merely because of a lack of
independence
or objectivity.
(c)      In
the special plea before me Mr Zuma expressly asked for the ‘removal’
of Mr
Downer, just as the accused in
Porritt
had sought the
‘removal’ of the prosecutors pursuant to a plea in terms
of s 106(1)
(h)
. There is no point of distinction between
Porritt
and the special plea before me.
Porritt
had
also relied on s 106(1)
(h)
. Mr Zuma relies exclusively on s
106(1)
(h)
.
Porritt
is directly in point on the issue of
the application and interpretation of s 106(1)
(h)
. The
judgment of the SCA set itself against treating allegations of a lack
of impartiality, or a lack of independence, or a conflict
with the
requirements of the NPA Act, or any conflict with prosecutors
carrying out their duties without fear, favour or prejudice,
or a
general breach of an accused’s fair trial rights, as relevant
considerations influencing a decision regarding whether
a prosecutor
has title to prosecute.
(d)     In
answer to the appellants’ counsel’s submission that where
a prosecutor is found
to be biased, his or her removal may be said to
be based on his or her lack of title to prosecute which would entitle
the appellants
to demand an acquittal in terms of s 106(4), Tshiqi JA
emphatically stated, ‘In my view, that cannot be so.’
[110]
In
Delport,
the
court of first instance, had, with reliance on the principle
enunciated in
Bonugli
v Deputy National Director of Public Prosecutions,
[53]
which on the facts of that case held that there was a reasonable
apprehension that the prosecutors would not act without fear,
favour
or prejudice and that the rights of the accused to a fair trial would
be infringed if the prosecution continued with the
two prosecutors
prosecuting, set aside the appointment of the two prosecutors. It is
significant to note that the removal of the
prosecutors in
Bonugli
had not
been sought on the basis of them having no title to prosecute as
contemplated in s 106(1)
(h).
Their removal was sought on the basis that their appointment was in
conflict with the provisions of s 35(3) of the Constitution,
which
would affect their fair trial rights, and would therefore be
unlawful. That is different to what is claimed in the special
plea.
But that point apart, the findings in
Bonugli
have in any event since been implicitly overruled by the SCA in
Porritt
,
as the SCA rightly observed in
Delport
.
[54]
[111]
The
SCA held in
Porritt
that the protection of an accused person lies not in a general
standard of independence and impartiality required of all
prosecutors,
but in the right to a fair trial entrenched in s 35(3)
of the Constitution.
[55]
As was also remarked in
Delport
,
[56]
the question in regard to irregularities is always whether they have
resulted in a failure of justice, as irregularities do not
in and of
themselves lead to a failure of justice.
[57]
In
Delport
,
the fact that the appellants had not claimed that they suffered any
trial related prejudice was held to be fatal, albeit that
their
appeal was struck from the roll for other reasons. In
Moussa
,
[58]
referring to the above principle in
Porritt
,
the court held that whether a trial is fair usually falls to be
determined on a case-by-case basis, and stressed that courts will
be
astute to ensure that the constitutional guarantees of prosecutions
without fear, favour or prejudice, and fair-trial rights,
are
met.
[59]
The SCA in
Porritt
concluded, quoting with approval from its decision in
Director
of Public Prosecutions, Western Cape v Killian
[60]
that:
‘
The question
remains whether the prosecutor’s . . . role in this case
created a substantive unfairness
per se . . .
Whether
fulfilment of that . . . role does involve or bring about substantive
unfairness in an ensuing criminal trial will be a
matter to be
decided on the facts of each case by the trial court.’
[112]
Thus,
following
Porritt
,
[61]
if an accused believes the prosecutor assigned to their case will not
exercise, carry out or perform their powers, duties and functions
in
good faith, impartially and without fear, favour or prejudice, or
that the prosecutor is an essential witness in the case, then
the
accused may bring a substantive application to the court for an order
that the prosecutor be removed and replaced. What the
accused cannot
achieve, however, is to seek such removal by the device of entering a
special plea in terms of s 106(1)
(h)
of the CPA.
[113]   The
principle of
stare decisis
(binding precedent) in our law
means that I am bound by the
ratio decidendi
of the judgment
of a higher court, for example, the Constitutional Court, the Supreme
Court of Appeal or a full court of this division,
even if I believe
it to be wrong. I am bound by the decision of the Supreme Court of
Appeal in
Porritt.
The principles established in
Porritt
are not distinguishable from what is before me.
[114]   The
decision in
Porritt
is dispositive of the interpretation of
the provisions of s 106(1)
(h)
and the merits of the
special plea raised by Mr Zuma. Lack of title to prosecute is
confined to instances of a lack of standing
in the sense of a legally
recognised interest, or the required authority, which a particular
prosecutor requires to entitle him
or her to prosecute an accused.
Mr
Zuma’s alternative causes of action
[115]
Mr
Zuma correctly does not dispute that the meaning of ‘title’
in s106(1)
(h)
,
in what has been termed the narrow sense above, would include the
qualifications and authority of a person to be appointed as
a public
prosecutor. He however alleges further, in the alternative,
that
in the event of the word ‘title’ in s 106(1)
(h)
being interpreted narrowly to mean only formal statutory requirements
for appointing a prosecutor, that this court ‘should
extend its
meaning to include the absence of independence and impartiality to
conduct
a prosecution as falling within the meaning of “title” to
prosecute’
in
terms of s 39(2) and (3) of the Constitution, to allow him to demand
an acquittal in terms of s 106(4) in the event of him being

successful in removing Mr Downer. In ‘the further alternative
and as an independent basis’ he contends that Mr Downer
‘should
be removed as a prosecutor in the trial as he lacks the independence
and impartiality required by the Constitution
and his oath of office
taken under s 32(1)(a)
[62]
and
s 32(2)(a)
[63]
of the National
Prosecuting Act 32 of 1998 to serve impartially and exercise, carry
out or perform his powers duties and functions
in good faith and
without fear, favour or prejudice.’
Should
‘title to prosecute’ be assigned a wider meaning?
[116]   I
am not persuaded that a wider meaning should be assigned to the word
‘title’. As much as there
is an obligation on all courts,
as contended in argument, in terms of s 39(2) of the
Constitution to ‘promote the spirit,
purport and objects of the
Bill of Rights’ when interpreting ‘legislation’
like the CPA, there is no need to
adopt a strained wider meaning of
the word ‘title’ to provide a remedy where adequate
alternative remedies already
exist in our law. It is significant that
s 39(3) of the Constitution provides that ‘[t]he Bill of Rights
does not deny the
existence of
any rights
or freedoms that are
recognised or
conferred by common law
, customary law
or
legislation,
to the extent that they are consistent with the
Bill.’ The argument for an extended meaning of the word ‘title’

with reference to the constitutional rights and protection which Mr
Zuma undoubtedly enjoys, presupposes that he has no satisfactory

alternative remedy in our law.
[117]
Mr
Zuma has satisfactory alternative rights and remedies ‘conferred
by common law’ or ‘legislation’: he
could have
brought a separate substantive application, for appropriate
declaratory, and pursuant thereto, consequential relief
for the
recusal/removal of Mr Downer.
[64]
He chose not to do so. The fact that he had not done so, is of his
own making.
[65]
Alternatively,
he could bring an application for a permanent stay of
prosecution,
[66]
which he did,
and which was refused by the full court.
[67]
[118]   The
fact that there are alternative satisfactory remedies available
militates against extending the meaning
of the words ‘title to
prosecute’, in terms of s 39(2) and (3) of the Constitution, to
include an absence of independence
and impartiality which does not
result in an unfair trial.
[119]
Ultimately,
as has been stated repeatedly above, every trial court must at the
end of the trial be satisfied that the accused has
received a
constitutionally fair trial. If not, then it must acquit the accused.
It is unhelpful to speculate at this stage theoretically
on a
possible infringement of trial rights, which might never arise within
the evidential matrix of the trial. As was remarked
by Kentridge
AJ,
[68]
albeit in a different
context:
‘
Moreover, once the
evidence in the case is heard it may turn out that the . . . issue is
not after all decisive.’
By
way of example, there would be no need to investigate and rule on the
inadmissibility of evidence obtained in a constitutionally
unfair
manner, if that evidence will never feature or be adduced by the
State in support of the prosecution. There is no need to
interpret s
106(1)
(h)
more broadly than the SCA did in
Porritt
(something which, in terms of the principle of
stare decisis
,
is in any event not open to this court).
A
‘further alternative basis’
[120]   The
‘further alternative’ basis contended for by Mr Zuma
would presumably be a separate substantive
application for the
recusal or removal of Mr Downer as one of the prosecutors. There is
no such application before this court.
The special plea in terms of s
106(1)
(h)
of the CPA is the only issue.
[121]   A
lack of independence or objectivity, or bias, or some other alleged
prosecutorial misconduct may be pursued
in a separate substantive
application, for an order to permanently stay the prosecution, or for
the recusal or removal of a prosecutor,
or an acquittal where the
resultant trial prejudice is such that the accused will or did not
enjoy a constitutionally fair trial.
But that does not amount to a
‘lack of title to prosecute’ as contemplated in s
106(1)
(h)
of the CPA. It involves an application, a separate
and distinct process to the special plea contemplated in s 106(1)
(h)
,
as the separate agreement relied upon by the appellants in
Porritt
in the hearing before the SCA, illustrates. In the present matter
there is no agreement that a separate issue as to whether Mr Zuma

might suffer trial prejudice or might not receive a fair trial, will
be adjudicated additional to the special plea, at the pleading
stage.
Nor has this court directed that an enquiry into whether Mr Zuma
might suffer trial prejudice or not receive a fair trial,
be decided
at this stage of the proceedings.
[122]   The
issue before this court for decision, is purely the special plea in
terms of s 106(1)
(h)
, nothing else. Preliminary to the
indictment being put and the two accused pleading to the various
counts in the indictment, Mr
Masuku SC at the commencement of the
hearing on 17 May 2021 indicated that Mr Zuma intended to raise a
plea, as contemplated in
s 106(1)
(h)
of the CPA, that Mr
Downer, ‘has no title to prosecute.’ I confirmed with Mr
Masuku that what was raised was a plea
as contemplated in
s 106(1)
(h)
, and not an application for the recusal, or
removal, of Mr Downer. Once the written notice of the special plea
had been delivered,
I similarly clarified with Mr Mpofu, who had come
to lead the defence team of Mr Zuma, when the plea was entered on 26
May 2021,
that what was raised was the special plea, not an
application for the recusal of Mr Downer. He confirmed that it was
the special
plea.
[123]
This
trial has been carefully case managed, as is apparent from the court
file, and was certified ready for trial on 23 February
2021. Prior to
that date the case management hearings had been adjourned on
occasions, inter alia to allow Mr Zuma to bring an
application for a
permanent stay (which was ultimately refused in ‘the permanent
stay judgment’).
[69]
[124]
On
8 December 2020 Radebe J granted an order postponing the trial
‘provisionally to 23 February 2021, for the resolution of

outstanding pre-trial management issues, with a view to the Court at
the provisional hearing on 23 February 2021 certifying the
matter
trial ready in accordance with the Judge President’s Pre-Trial
Criminal Court Hearings Directive dated 7 November
2018’,
[70]
pending inter-alia the full court judgement in the Thales application
for review heard on 26 October 2020, and the State’s
answer to
Thales’s application for further and better particulars dated
23 November 2020. The Judge President’s directive
referred to
is consistent with the ‘Directives issued by the Chief Justice
of the Republic of South Africa in terms of
section 8
of the
Superior
Courts Act 10 of 2013
read with section 165 (6) of the
Constitution’.
[71]
[125]   On
23 February 2021 an order was granted by Chili J, with the consent of
all the parties, in the following
terms:
‘
1.     The
matter is certified as trial – ready in accordance with the
Judge President’s Pre-Trial
Criminal Court Hearings Directive
dated 07 November 2018.
The matter is postponed
(in absentia in respect of Mr Zuma and the Thales representative), to
17 May 2021 until 20 June 2021 (being
the end of term date) for trial
and that the matter will again resume on the first day of the third
term in KwaZulu–Natal,
and any further dates that the
Honourable Judge presiding at the trial and the Honourable Judge
President may determine, subject
to further clarity on the resumption
of international travel under the COVID 19 restrictions, which may
affect witnesses and the
Thales representative, Mr Durand from
abroad.
(This is in terms of the
draft order signed by Judge).’
[126]   By
acknowledging that the matter was ready for trial the parties
acknowledged that there were no further
applications to be brought
before the trial was to commence. Mr Downer has been the lead
prosecutor in the trial since 2009, if
not before, a fact well known
to all. This court would not easily have been disposed, after the
matter had been certified trial
ready, to allow any further
adjournment for any further applications, whether for the removal of
Mr Downer, or otherwise, to be
brought. Obviously, Mr Zuma’s
right to enter any particular plea, being part of the trial process,
remained available to
him when he would be required to plead, but
then limited to the scope of the plea so entered.
[127]
In
this context it is important to keep in mind the general caution
expressed by Langa CJ in
Thint
(Pty) Ltd v National Director of Public Prosecutions and others; Zuma
v National Director of Public Prosecutions and other
[72]
that:
‘
.
. . this court should discourage preliminary litigation that appears
to have no purpose other than to circumvent the application
of s
35(5). Allowing such litigation will often place prosecutors between
a rock and a hard place. They must, on the one hand,
resist
preliminary challenges to their investigations and to the institution
of proceedings against accused persons; on the other
hand, they are
simultaneously obliged to ensure the prompt commencement of trials.
Generally disallowing such litigation would
ensure that the trial
court decides the pertinent issues, which it is best placed to do,
and would ensure that trials start sooner
rather than later. There
can be no absolute rule in this regard, however. The courts' doors
should never be completely closed to
litigants. If, for instance, a
warrant is clearly unlawful, the victim should be able to have it set
aside promptly. If the trial
is only likely to commence far in the
future, the victim should be able to engage in preliminary litigation
to enforce his or her
fundamental rights. But in the ordinary course
of events, and where the purpose of the litigation appears merely to
be the avoidance
of the application of s 35(5) or the delay of
criminal proceedings, all courts should not entertain it. The trial
court would then
step in and consider together the pertinent
interests of all concerned. If that approach is generally followed
the State would
be sufficiently constrained from acting unlawfully by
the application of s 35(5) and by the possibility of civil and
criminal liability.’
[128]
This
trial was ready to proceed, as agreed, free of any further
interlocutory applications – the only possible exception
conceivably being in respect of events not previously reasonably
capable of being anticipated, which any substantive application
for
Mr Downer’s removal certainly would not be. A speedy trial and
finality in litigation, are also vital constitutional
imperatives. As
was said in
Shaik
,
[73]
quoted above, the rights of the accused are not a one-way street.
[129]   There
is accordingly no room for any other form of process, as a ‘further
alternative as an independent
basis’, as was contended for,
being pursued at this stage.
Applying
the facts to the above legal interpretation
[130]   Mr
Downer’s uncontested evidence is that he was admitted as an
advocate of the Supreme Court of South
Africa on 15 April 1980,
appointed a Deputy DPP in the NPA with effect from 1 February 1999,
elevated to the rank of senior counsel
on 21 November 2003 and sworn
in as a Senior Deputy Director of Public Prosecutions in the NPA on 6
August 2015. On 28 November
2017 he was designated by the then DPP to
exercise, on behalf of the Republic, in all courts within her area of
jurisdiction, the
powers mentioned in sections 20(1)
(a)
,
(b)
and
(c)
of the NPA Act in respect of the prosecution of the
present accused, from that date until the finalisation of the case,
and he
has again been so designated by the current DPP. Mr Zuma has
not challenged this evidence.
[131]   Mr
Zuma has not established that Mr Downer does not have title to
prosecute. The special plea in s 106(1)
(h)
of the CPA
accordingly falls to be dismissed.
Section
106(4) of the CPA
[132]
In
the light of the conclusion that the special plea should be
dismissed, it is unnecessary to consider the provisions of s 106(4),

whether Mr Zuma would have been entitled to demand an acquittal if
the special plea in terms of s 106(1)
(h)
was upheld, whether s 106(4) contains some form of discretion whether
to acquit an accused or not,
[74]
and, whether evidence needs to be received in respect of the
determination thereof.
The
alternative argument – a ‘wider’ interpretation of
the phrase ‘title to prosecute’
[133]
The
judgment, from here on, deals with the position should I be incorrect
in construing the reference to the term ‘title to
prosecute’
to not extend to a wider meaning, to include complaints of alleged
bias, lack of independence and objectivity,
and/or that the issue
before me is confined to the special plea in terms of s 106(1)
(h)
[75]
and does not include an application for the recusal (removal) of Mr
Downer.
[76]
Notwithstanding
the affidavits being voluminous, I shall endeavour to deal with the
arguments advanced by Mr Zuma in this regard,
as succinctly as
possible, more in point form than elaborate narrative. In doing so I
have, as in the first part of this judgment,
had regard to all the
allegations advanced in the affidavits, even though some might not be
referred to specifically in this judgment.
I still do not consider
complaints against the State/NPA, in accordance with the principle
set in
Ndluli
and the
wording of s 106(1)
(h)
,
unless they implicate Mr Downer.
[134]   The
discussion below is confined to the twelve grounds listed and
discussed by the State in its heads of
argument, and the further two
grounds identified in the supplementary evidence affidavit, which Mr
Mpofu confirmed Mr Zuma relies
upon, to the exclusion of any other
possible grounds, which were abandoned.
[135]   Before
considering the particular complaints raised by Mr Zuma, it is
necessary first to make the following
general observations. They are
not made in any particular order:
(a)
Many
of the allegations advanced in the affidavits are irrelevant to the
special plea or an application to remove Mr Downer, or
alternatively
are based on suspicion or speculation and not on fact. This has
unfortunately had the effect, similar to that described
in
NDPP
v Zuma,
[77]
that ‘[i]nstead of having a short and simple case, the matter
not only ballooned but burst in the faces of many.’ Allegations

in the affidavits that are irrelevant, speculative and/or not founded
on fact, will not be discussed in this judgment. Further,
speculative
assertions do not amount to allegations of fact, and if contradicted,
or even if only denied in answer, with no further
factual rebuttal in
reply, cannot give rise to a real dispute of fact. A referral to oral
evidence is not a remedy to cure the
absence of evidence. It seeks to
resolve a true dispute between conflicting versions of fact based on
admissible evidence. The
crucial question is always whether a real
dispute of fact has arisen.
[78]
(b)    A
dispute of fact must furthermore relate to a material issue, to be
legally relevant. Disputes in respect
of collateral or non-material
issues are irrelevant.
(c)
Many
persons, not accused in the trial, mentioned in the affidavits may be
prejudiced by allegations that have been made. As remarked
in
NDPP
v Zuma
[79]
they would probably be unable to intervene, even at the appeal stage,
as they only have an interest in the reasoning, and not the
order.
This judgement will accordingly only address allegations made against
Mr Downer, who had the opportunity of responding to
the allegations
in the founding affidavits.
(d)
There
are various decisions of other courts
[80]
that have dealt with matters concerning Mr Zuma, although not
specifically in the context of a plea in terms of s 106(1)
(h)
of the CPA, or an application for the removal of Mr Downer. The
principle of
stare
decisis
determines that the reasoning and conclusions of a court, higher in
the hierarchy of courts to this court are binding upon me and
must be
followed, even if I might consider them to be wrong, unless
distinguished.
[81]
(e)     The
question of ‘Issue estoppel’, which will be discussed
separately below, precludes
a litigant from contending for a
different conclusion to that determined previously between the same
parties by another court,
even if the relief claimed was dissimilar,
in respect of a similar issue to that arising in the present
litigation..
(f)
Ultimately,
the enquiry at the end of every criminal trial must be whether the
accused had received a constitutionally fair trial.
That imperative
remains even if on the evidence adduced in the affidavits to date, it
is concluded that it has not been established
that Mr Zuma has or
will suffer trial related prejudice which might result in him not
receiving a constitutionally fair trial.
This judgment cannot stand
in the way of possible fresh evidence emerging later. The enquiry is
one most best answered by the trial
court at the end of the trial,
when the materiality of all the evidence adduced can be assessed
properly. That it is not to say
that such an enquiry might never,
possibly in exceptional circumstances perhaps, arise, if appropriate,
during a trial,
[82]
but when
such a determination, other than at the end of the trial should be
made, is solely within the discretion of the trial
judge.
Res
judicata – issue estoppel and the rule against collateral
challenges
[136]
It
is trite law that a plea of
res
judicata
may be raised as a defence to a claim that raises
an
issue
disposed of by a previous judgement. A plea of
exceptio
res
judicata
(plea of matter adjudged) nominally requires simply a demand for ‘the
same thing on the same ground’,
[83]
which simply raises the question whether the ‘same issue’
has already been adjudicated upon. The special plea for the
removal
of Mr Downer as prosecutor has not previously been demanded and was
not decided in the judgement of Harms
NDPP
v Zuma
,
[84]
nor in the Spy Tapes case,
[85]
nor in the permanent stay application before the full court, nor in
any other judgment. The State accepts that much. The State’s

reliance is however not on
res
judicata
per se
(as such), but on a rule thereof, commonly referred to as ‘issue
estoppel’.
[137]
Harms
in
Amler’s
Precedents of Pleading
in
a previous edition
[86]
in discussing
res
judicata
,
concisely summarises the position in regard to issue estoppel
specifically, as follows:
‘
A party to
previous litigation is not only prevented from disputing the
correctness of a judgement in the sense that he may not
again rely
upon the same cause of action, but he is also prevented from
disputing an issue decided by the previous court. The rule
is that
where the decision set up as
res
iudicata
necessarily involved a judicial determination of some question of law
or issue of fact, in the sense that the decision could not
have been
legitimately or rationally pronounced by the tribunal without at the
same time determining that question or issue in
a particular way,
such determination, though not declared on the face of the recorded
decision, is deemed to constitute an integral
part of it as
effectively as if it had been made so in express terms.’
[87]
In
the current edition of that work, the learned author explains:
‘
The ambit of the exceptio rei iudicata has been extended by the relaxation in appropriate cases of

the common law requirements that (a) the relief claimed and (b)
the cause of action be the same. Where the circumstances justify
the
relaxation of these requirements those that remain are that (a) the
parties must be the same and (b) the same issue must arise.
The
latter involves an inquiry into whether an issue of fact or law was
an essential element of the judgment on which reliance
is placed. It
has become commonplace to speak of ‘issue estoppel’ when
the plea of res judicata is raised in the absence
of a commonality pf
cause of action and relief claimed.
Aon
South Africa (Pty) Ltd v van den Heever NO and others
[2017] 3 All SA
365
(SCA)
The
defence remains one of res judicata. Recognition of the defence
requires careful scrutiny in each case and depends on the facts
of
the case with reference to equity and fairness to the parties and to
others.’
[88]
[138]
Friedman
JP in
Bafokeng
Tribe v Impala Platinum Ltd
[89]
following
Kommissaris
van
Binnelandse Inkomste v ABSA Bank Bpk,
[90]
pointed out that the subject matter in the two relevant actions does
not necessarily in all circumstances have to be the same,
stating
that the requirement that the previous judgement had to be based on
the same cause of action and with respect to the same
subject matter
or thing could, and should, in order to ensure overall fairness, be
relaxed having regard to the object of the
exceptio
res judicata.
The
object of the
exceptio
is to put a limit to needless litigation, and to prevent a
recapitulation of the same thing in dispute in diverse actions with

the concomitant possible deleterious effect of conflicting and
contradicting decisions. He summarized the position as follows:
‘
The doctrine of
issue estoppel has the following requirements: (a) where a court in a
final judgement on a cause has determined
an issue involved in the
cause of action in a certain way; (b) if the same issue is again
involved and the right to reclaim depends
on that issue, the
determination in (a) may be advanced as an estoppel in a later action
between the same parties, even if the
later action is founded on a
dissimilar cause of action.
Issue estoppel is a rule
of
res
judicata
but is distinguished from the Roman – Dutch law exception in
that in issue estoppel the requirement that the same subject
–
matter or thing must be claimed in the subsequent action, is not
required.’
[91]
[139]
The
High Court in
Bafokeng
Tribe
made
it clear that the principle ‘must be carefully delineated and
demarcated in order to prevent hardship and actual injustice
to
parties.’
[92]
Plainly,
issue estoppel should not be applied rigidly or inflexibly but should
be developed on a case-by-case basis, having regard
to considerations
of equity and fairness,
[93]
to
prevent hardship and injustice. This accords with the ruling of the
Constitutional Court in
Molaudzi
[94]
that since
res
judicata
is a common law principle:
‘
. . . it follows
that this Court may develop or relax the doctrine if the interests of
justice so demand . . . Whether it is in
the interest of justice to
develop the common law or the procedural rules of the court must be
determined on a case-by-case basis
. . . Section 173 does not limit
this power. It does, however, stipulate that the power must be
exercised with due regard to the
interests of justice.’
[140]
The
Constitutional Court in
Molaudzi
further held that a court will, in appropriate cases, be entitled to
fashion a remedy to enable it to do justice between the parties.
That
power is found in s 173 of the Constitution.
South
African Broadcasting Corp Ltd v National Director of Public
Prosecutions and Others
[95]
held that:
‘
The power in
section 173 vests in the judiciary the authority to uphold, to
protect and to fulfil the judicial function of administering
justice
in a regular, orderly and effective manner. Said otherwise, it is the
authority to prevent any possible abuse of process
and to allow a
court to act effectively within its jurisdiction.’
[141]
Molaudzi
applied the
res judicata
principle where both cases were
criminal cases. Mr Masuku, who addressed me on this issue on behalf
of Mr Zuma, submitted that
what
Molaudzi
did not resolve
definitively is whether the
res judicata
principles can be
applied to a criminal prosecution where the prior case alleged to
give rise to the
res judicata,
or issue estoppel, was a ‘civil
case’. He contended that the application of issue estoppel in
criminal matters has
been rejected outright, or found only limited
application, in various foreign jurisdictions, in favour of an
accused and never
against the interest of an accused and for the
benefit of the State. In separate heads on the issue I was referred
to the laws
in Canada, Singapore, the United Kingdom, India,
Australia, and the United States of America, which provide for that
principle,
or variations thereof, or deal with it in the context of
an abuse of process. It was further submitted before me that the
statement
that in a criminal context, the ‘cause of action’
is to be regarded as the conviction and sentence as a whole, was
dispositive of the argument that a plea of
res judicata
is
available to the State in the context before me.
[142]
It
is not necessary to undertake an analysis of the law in the foreign
jurisdictions. These were considered in
Molaudzi,
[96]
albeit
in a slightly different context in regard to
res
judicata
proper. What was said however applies equally to issue estoppel. The
Constitutional court concluded in regard to the foreign law
which it
considered that:
‘
The general thrust
is that
res
judicata
is usually recognized in one way or another as necessary for legal
certainty and the proper administration of justice. However,
many
jurisdictions recognise that this cannot be absolute.’
[97]
The
Constitutional court continued, with reliance on s 173 of the
Constitution,
[98]
that:
‘
The
incremental and conservative ways that exceptions have been developed
to the
res
judicata
doctrine speaks to the dangers of eroding it. The rule of law and
legal certainty will be compromised if the finality of a court
order
is in doubt and can be revisited in a substantive way. The
administration of justice will also be adversely affected if parties

are free to continuously approach courts on multiple occasions in the
same matter. However, legitimacy and confidence in a legal
system
demands that an effective remedy be provided in situations where the
interests of justice cry out for one’
[99]
. . . (and that) . . .the circumstances must be wholly exceptional to
justify a departure from the
res
judicata
doctrine.’
[100]
[143]   I
do not understand issue estoppel not to be available in our Criminal
law. The only qualification, following
Molaudzi,
is that it
must be applied with caution and not rigidly, in the interests of
justice.
[144]
Mr
Masuku submitted, when it comes to consider what was decided in the
relevant previous judgments, that what was decided in a civil
review,
such as in the judgment of the SCA in the Spy tapes matter, or
possibly even by the full court in the permanent stay judgment,
could
not and has not been applied in a criminal trial like the present. He
submitted that this was because the burden of proof
would be
different in a criminal matter, compared to a civil matter. The short
reply to that argument is that the court of instance
and the SCA in
the Spy tapes matter, although sitting as civil courts, and the full
court hearing the permanent stay application,
even assuming it to
have sat as a ‘civil court’ although that is open to
debate, came to the conclusions they did on
the basis of common cause
facts. In motion proceedings on affidavit, which was the procedure
adopted both in the spy tapes review
and the permanent stay
application, the issues arising were decided on the basis of common
cause facts. As was stated by Harms
DP in
NDPP
v Zuma (Mbeki and another intervening)
[101]
:
‘
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.
. .
In motion proceedings the question of onus does not arise and the
approach set out in the preceding paragraph governs irrespective
of
whether legal or evidential onus lies. . . ’
Issue
estoppel is not affected by the burden of proof. Either an issue has
been decided previously on the basis of certain facts,
or it has not.
The degree of proof, whether on a preponderance of probability or
beyond a reasonable doubt, do not affect the inquiry.
Whether issue
estoppel can properly be invoked, is however a matter of judgment.
[145]
Our
law has seemingly also not held that for issue estoppel to operate in
a civil matter that the prior determination should have
been made by
a civil court of law. The prior determination could, for example,
have been made by a maintenance court, as in
Sparks
.
[102]
[146]   Mr
Zuma’s reliance on
Molaudzi
as being dispositive of the
State’s submissions, is, with respect, wrong. The contrary is
the case. The principle underlying
issue estoppel, namely that it
seeks to give effect to the finality of judgments, is what is
important. Subject to an accused not
being prejudiced, there is in my
view no reason why the principles relating to issue estoppel cannot
be applied to a criminal prosecution
where the prior case which
determined the issue was a civil case, subject to the application of
the principle not resulting in
an injustice to the accused.
[147]
Regarding
the constitution of the full court in the permanent stay application,
the position was referred to earlier. The judgment
of the full court
is
prima
facie
(at face value) valid and binding on me. I cannot, sitting as a
single judge, or even as a member of any bench in this division,

question the validity thereof. It might furthermore be arguable as to
whether the full court was sitting as a court before which
criminal
proceedings was pending,
[103]
but even if it was not, I can see no reason why issue estoppel,
applied cautiously and alive to considerations of fairness, should

not apply to the issues before me and previously decided by the full
court. If necessary, the common law needs to be developed
and
extended, having regard to the interests of justice, to preclude an
accused to again argue an issue in a criminal trial which
had been
determined by another court, even if it was a civil court, provided
no injustice will occur.
[148]   The
policy considerations underlying the principle of issue estoppel,
namely to bring an end to litigation
and to avoid the same issues
being litigated with the potential of different judgments being given
in respect of the same issue,
clearly convey that there is no reason
why issue estoppel, cautiously applied, should not apply across civil
and criminal matters.
[149]
In
Arthur
JS Hall v Simons
[104]
Lord Hoffmann said:
‘
The law
discourages re-litigation of the same issues except by means of an
appeal. The Latin maxims often quoted are
nemo debet bis vexari
pro una et eadem causa
and interest
rei publicae ut finis sit
litium.
They are usually mentioned in
tandem
but it is
important to notice that the policies they state are not quite the
same. The first is concerned with the interest of the
defendant: a
person should not be troubled twice for the same reason. This policy
has generated the rules which prevent re-litigation
when the parties
are the same:
autrefois acquit res judicata
and issue
estoppel. The second policy is wider: it is concerned with the
interests of the state. There is a general public interest
in the
same issue not being litigated over again. The second policy can be
used to justify the extension of the rules of issue
estoppel to cases
in which the parties are not the same but the circumstances are such
as to bring the case within the spirit of
the rules.’
[150]
In
regard to collateral attacks, it was said by the Supreme Court of
Canada in
Garland
v Consumers Gas Co
[105]
that:
‘
the fundamental
policy behind the rule against collateral attack is to ‘maintain
the rule of law and to preserve the repute
of the administration of
justice’. (
R v Litchfielda
[1993] 4 SCR 333
at 349). The
idea is that if a party could avoid the consequences of an order
issued against it by going to another forum, this
could undermine the
integrity of the justice system. Consequently, the doctrine is
intended to prevent a party from circumventing
the effect of a
decision rendered against it.’
[151]   In
Hunter v Chief Constable of West Midlands
[1981] 3 All ER 727
(HL)
Lord Diplock held:
‘
The abuse of
process which the instant case exemplifies is the initiation of
proceedings in a court of justice for the purpose of
mounting a
collateral attack on a final decision against the intending plaintiff
which has been made by another court of competent
jurisdiction in
previous proceedings in which the intending plaintiff had a full
opportunity of contesting the decision in the
court by which it was
made.’
[152]
The
principle of collateral attack applies equally in respect of issues
and questions of fact. In
Commissioner,
SARS v Hawker Aviation Services Partnership
[106]
it
was noted that it is difficult to find, in different cases, instances
of collateral attack which parallel one another precisely.
[107]
[153]   The
import of the above is that the principle of issue estoppel, as an
integral part of
res judicata
, should be extended to
circumstances necessary to bring the case within the spirit of the
aforesaid rules. If that requires that
our common law be developed
pursuant to s 39(2) of the Constitution to provide a remedy to
prevent the abuse resulting from the
same issue being litigated in
different forms before different courts, then that development is all
the more necessary, in the
interests of justice and to give proper
effect to the rule of law.
[154]   But
a development of the common law might not necessarily be required.
The principles relating to issue estoppel,
as applied in our law, are
sufficient to deal with the situations that arise in this judgement.
At most, if a development is required,
then it might simply be to
extend the application thereof between civil and criminal matters, if
that is a true point of distinction.
In view of the policy
considerations underlying the application of issue estoppel, there is
no reason in logic and fairness, if
applied cautiously, why such an
extension would not be appropriate. Obviously, in all instances,
fairness must remain an overriding
consideration to which any court
applying the principle will be sensitive.
[155]   Finally,
even if issue estoppel does not find proper application between civil
and criminal matters, the
reasoning of another court on the same
issue, although not raised as an
exceptio
, might be compelling
as regards the conclusion to be reached in the later judgment in
respect of a similar factual position. Indeed,
such reasoning will be
binding on me where it is the
ratio
of the decision of a
higher court.
[156]
The
principles of
stare
decisis
and
res
iudicata
(issue estoppel) assume significance in this matter viewed against
the background of various court judgments, which have preceded
this
trial. In 2009 the SCA already referred to the litigation having a
‘long and troubled history and the law reports are
replete with
judgments dealing with the matter’.
[108]
And in 2017, the SCA similarly likened the litigation involving Mr
Zuma to TS Elliot’s ‘the recurrent end of the
unending.’
[109]
[157]   The
relief claimed in the special plea might be different to that sought
previously in other cases, but in
many respects the relief is claimed
fundamentally on the same grounds, or at least often on the same
facts, which featured as issues
in previous judgments. Not only were
the issues disposed of, but they were decided in respect of the exact
same facts now advanced,
by courts whose judgments I am bound to
follow. Therefore, even if not truly instances of issue estoppel, if
the reasoning which
finds application is similar to that previously
decided by another court, then that reasoning must in any event be
adopted by me.
[158]   The
only remaining consideration in respect of issues previously decided
might be Mr Downer’s alleged
involvement, or complicity in, or
awareness of the existence of the those facts. However, in the light
of the conclusions reached
in those judgments, namely that the
existence of those facts did not establish that Mr Zuma’s
rights to a constitutionally
fair trial had been impaired or had been
threatened, it is difficult to fathom how Mr Downer’s
involvement or knowledge of
those factual circumstances, even if such
knowledge and involvement could be established, would afford grounds
for his removal
on the basis that Mr Zuma will allegedly not receive
a constitutionally fair trial.
The
individual grounds of complaint
[159]   The
individual grounds relied upon, also alluded to earlier, and repeated
here for convenience, are simply
alleged manifestations of a general
complaint of a lack of independence and objectivity on the part of Mr
Downer. They are:
(a)      Mr
Ngcuka’s refusal to authorise searches of Mr Zuma’s
properties;
(b)      Mr
Ngcuka’s decision not to prosecute Mr Zuma, with Mr Shaik;
(c)      Mr
Downer’s dismissal of the Public Protector’s report;
(d)      Mr
Downer’s conduct in the Shaik trial;
(e)      Nicholson
J’s findings of political interference;
(f)       Mr
Mpshe’s April 2009 decision to discontinue Mr Zuma’s
prosecution, and
Mr Hofmeyr’s affidavit;
(g)     Mr
Downer’s public reaction to Mr Mpshe’s decision;
(h)     Mr
Downer’s affidavit in the Spy Tapes matter;
(i)      ‘Browse
Mole’, Mr McCarthy and foreign intelligence services;
(j)       Mr
Downer’s failure to report political interference;
(k)      Mr
Downer’s alleged leaks to the media;
(l)       Mr
Downer’s insistence that Mr Zuma be prosecuted;
(m)     The
leaking of confidential medical information;
(n)      The
unlawful attempted physical examination of Mr Zuma.
In
general, all these grounds, if established, at best, might
potentially affect Mr Zuma’s fair trial rights
Mr
Ngcuka’s refusal to authorise searches of Mr Zuma’s
properties
[160]   Mr
Zuma alleges that Mr Downer denounced the refusal by Mr Ngcuka to
authorise searches of Mr Zuma’s
properties as a political
favour to Mr Zuma, but that he failed to report this ‘unlawful
conduct’ of Mr Ngcuka, or
to lodge a formal complaint about it.
[161]   No
factual basis is laid for this allegation, and the conclusion sought
to be inferred. The person who has
personal knowledge of the factual
circumstances relating to this complaint, is Mr Downer. He explains
that the allegation is incorrect.
In late 2001, the prosecution team,
of which he was always part, had recommended that Mr Zuma’s
premises be searched. This
recommendation was however not approved by
Mr Ngcuka, being the NDPP, and Mr McCarthy, both being his seniors
and the officials
with whom the decision would lie. Mr Downer
explains that he did not denounce the decision not to authorise the
searches as being
a political favour to Mr Zuma, or as being
unlawful. He did believe that Mr Ngcuka’s refusal to authorise
the prosecution
team to search Mr Zuma’s premises, was
politically motivated and designed to protect Mr Zuma, but Mr Ngcuka
and Mr McCarthy
justified their decision not to authorise the
searches, as being necessary to avoid the harm that media exposure
could cause to
the integrity of the investigation, apart from the
harm it could cause to the credibility of Mr Zuma, who was then the
incumbent
Deputy President of the Republic of South Africa. The
investigation was at that stage still in a relatively early stage.
[162]   The
decision whether or not to proceed with a search of Mr Zuma’s
premises was a value judgement by
Mr Downer’s superiors, which
even if it was perceived as favouring or protecting Mr Zuma, was
justifiable for the reasons
advanced by them, and hence not
necessarily objectively unlawful. Any formal complaint concerning
their refusal to authorize the
search would have been stillborn, as
Mr Ngcuka and Mr McCarthy had a reason for not having done so.
[163]   Mr
Downer’s explanation of the facts has elicited no contradictory
reply.
[164]   The
fact that Mr Downer had not reported their conduct does not deprive
him of the title to prosecute, nor
would it justify his removal as
prosecutor. Mr Zuma has furthermore not demonstrated that he will
suffer trial prejudice.
Mr
Ngcuka’s decision not to prosecute Mr Zuma, with Mr Shaik
[165]   Mr
Zuma alleges that his constitutional rights to a fair trial were
violated by Mr Ngcuka not charging him
together with Mr Shaik, and in
announcing publicly, on 23 August 2003, that although there was prima
facie evidence of wrongdoing,
the case against him was unwinnable in
court. Further Mr Zuma complains that Mr Downer’s insistence
that Mr Zuma faces prosecution
now, is inconsistent with his advice
to Mr Ngcuka in August 2003 that Mr Zuma should be prosecuted
together with Mr Shaik, thus
showing that Mr Downer is not
independent and impartial.
[166]
Mr
Zuma’s complaint that it was unfair to deprive him of the
benefits of a joint prosecution with Mr Shaik and his companies,
was
however rejected by the full court in the permanent stay
application.
[110]
The full
court referred to dicta by Harms DP in
NDPP
v Zuma
where the SCA concluded that
‘
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.’ (footnote omitted)
The
full court also referred to the judgement of the Constitutional Court
in
S v
Shaik and others
[111]
where a similar complaint was raised by Mr Shaik, which the
Constitutional Court rejected, stating that the mere fact that there

might often be cogent reasons for the holding of joint trials, does
not mean that a specific trial would be unfair because other
possible
perpetrators are not charged together with an accused. The
Constitutional Court rejected the proposition that the failure
to
charge another party, who may be suspected of being involved in the
same offence in the same trial together with an accused,
would amount
to a breach of any established rule of criminal procedure.
[167]   The
decision not to prosecute Mr Zuma together with Mr Shaik, was the
decision of Mr Ngcuka, Mr Downer’s
senior and the head of the
NPA. It was not a decision of Mr Downer. If Mr Zuma felt aggrieved by
the public statement released
by Mr Ngcuka, then he had remedies
against Mr Ngcuka.
[168]   The
full court concluded in this regard that:
‘
As we see it, even
if a joint trial would have had some benefit for Mr Zuma of which he
was deprived of as a result of his prosecution
being separated from
Mr Shaik and the Nkobi group, it does not constitute prejudice of any
kind, which would impact on the fairness
of his trial.’
[169]   Mr
Downer is completely removed from the decision of Mr Ngcuka. There is
no decision of Mr Downer that violated
Mr Zuma’s rights. In
fact, the uncontroverted view of Mr Downer and the prosecution team
has always been that Mr Zuma should
have been charged together with
Mr Shaik. This had been stated in the memorandum to the NDPP dated 21
August 2003. Mr Downer was
not insensitive to Mr Zuma’s rights
to a fair trial. He wanted him and Mr Shaik to be prosecuted
together. There is no basis
to infer that any conduct on the part of
Mr Downer reveals that he was not independent and impartial. He even
criticised the decision
not to charge Mr Zuma with Mr Shaik, the very
fact Mr Zuma contends for.
[170]   Obviously,
as it turned out, facts emerged from the trial of Mr Shaik, which
reinforced the contention, which
Mr Downer had held all along, that
Mr Zuma should be charged.
[171]   There
is nothing in the affidavits to gain say the version of Mr Downer set
out above. There is no dispute
of fact. Mr Downer’s title to
prosecute has been left untainted by the fact that Mr Zuma was not
charged together with Mr
Shaik.
Mr
Downer’s dismissal of the public protector’s report
[172]   Mr
Zuma complains that Mr Downer has had a ‘dismissive attitude’
towards the findings by the
public protector who had found that Mr
Ngcuka had violated his (Mr Zuma’s) rights in making the media
statement on 23 August
2003, because Mr Downer knows that the
remedial action recommended by the public protector, was never
implemented.
[173]   The
public protector also said, as appears from the answering affidavit
of Mr Downer in the permanent stay
application, that although Mr
Ngcuka had infringed Mr Zuma’s rights to dignity and acted
unfairly and improperly in making
the media statement on 23 August
2003, ‘no indication could be found that the statement was made
in bad faith or with the
intent to prejudice the Deputy President.’
[174]   Shortly
after the public protector delivered his report, the NPA and the then
Minister of Justice, Dr Penuell
Maduna, prepared a response rejecting
the criticism of its handling of the investigation and explaining why
the statement was made.
The remedial action recommended by the public
protector was directed to Parliament. Shortly after the public
protector delivered
his report, both Dr Maduna, and Mr Ngcuka tried
to submit their responses to Parliament, as required, but Parliament
would not
accept the response.
[175]   Mr
Downer was not the NDPP. Mr Ngcuka was. It was furthermore Mr
Ngcuka’s statement which the public
protector had found to be
offensive. Mr Downer did not share the view expressed by Mr Ngcuka in
respect of the prosecution of Mr
Zuma that the case was unwinnable.
Mr Ngcuka, being Mr Downer’s senior, was dealing with the
public protector’s report
and any implications arising
therefrom. There was nothing further that Mr Downer could have done.
[176]
Accordingly,
this ground is without any substance. It does not point to any trial
related prejudice. Nor does it show that Mr Downer
was not
independent and objective. The public protector’s report did
not involve him, or implicate him, at all. If anyone
was dismissive
of the public protector’s report, then it was possibly Mr
Ngcuka, although he too had apparently taken appropriate
action on
the law as it then stood.
[112]
There is no evidence that Mr Downer was dismissive of the report.
Mr
Downer’s conduct in the Shaik trial
[177]   Mr
Zuma alleges that Mr Downer violated his right to equality and equal
protection of the law and his fair
trial rights by presenting
evidence in the
Shaik
trial, which resulted in adverse
findings by the presiding judge, Squires J, against him. Further,
that Mr Downer strategy was
to prosecute Mr Shaik alone as a trial
run to bolster his chances of successfully prosecuting Mr Zuma.
[178]   Count
one in the
Shaik
trial alleged that Mr Shaik and his Nkobi
companies had made regular corrupt payments to Mr Zuma during the
period from 1995 to
2002 when Mr Zuma was variously a member of the
provincial cabinet in KwaZulu-Natal, a member of Parliament, the
deputy president
of the ruling African National Congress (ANC), and
the Deputy President of the Republic of South Africa. Count three
alleged that
Mr Shaik had been party to a request that Thales should
pay an annual R500,000 bribe to Mr Zuma to secure protection from Mr
Zuma
against the official investigations then current concerning the
arms deal, and to secure the support of Mr Zuma for future projects

of Thales in South Africa.
[179]
The
uncontroverted evidence of Mr Downer is that the prosecution team
presented evidence in the
Shaik
trial, which it considered necessary and appropriate to secure a
conviction of Mr Shaik and his Nkobi companies. The trial court

accepted the bulk of the State’s evidence, which Mr Downer
adduced, and convicted Mr Shaik and his Nkobi companies as
charged.
[113]
It was
inevitable that the State’s evidence would implicate Mr Zuma,
as an unavoidable consequence, if the trial court accepted
the
evidence against Mr Shaik. As was pointed out by the SCA in
NDPP
v Zuma:
[114]
‘
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.
In other words, the fact that Mr Shaik was found guilty does not mean
that Mr Zuma is guilty.’ (footnote
omitted)
[180]   That
the trial court in the
Shaik
prosecution made findings, which
implicated Mr Zuma was inevitable but does not elevate the leading of
evidence to secure the conviction
of Mr Shaik and his companies to a
deliberate strategy to treat Mr Zuma unfairly. It was what was
required of the prosecutor. Mr
Downer stated that it was always the
prosecution team’s view that Mr Zuma should have been charged
together with Mr Shaik,
a fact also recorded in the memorandum by the
prosecution team to the NDPP on 21 August 2003, a fact which Mr Zuma
himself acknowledged
in his plea explanation. This was also
acknowledged by Mr Ngcuka when, in announcing his decision on 23
August 2003, he stated
that:
‘
The investigating
team recommended that we institute a prosecution against Deputy
President Zuma.’
[181]   The
recommendation of MR Downer and the prosecuting team was however
overruled by Mr Ngcuka. But Mr Downer
had not acted improperly in any
way in the
Shaik
trial. This ground of complaint is without
merit.
Mr
Justice Nicholson’s findings of political interference
[182]
Just
as in his heads of argument in the application for a permanent stay
of prosecution, Mr Zuma relies extensively on findings
of political
interference, which had been made by Nicholson J in
Zuma
v National Director of Public Prosecutions.
[115]
[183]   The
judgment of Nicholson J must be seen in its correct context.
Nicholson J had found that the crux of the
dispute before him was
whether Mr Zuma was entitled to make representations to the
prosecuting authorities before the decision
was taken to prosecute
him. It was common cause that he had not been afforded that
opportunity. Treating the application as in
the nature of a civil
review, and concluding that the opportunity to make representations
formed part of the
audi alteram partem
(hear the other side)
principle, Nicholson J granted an order that the decision of Mr Mpshe
to prosecute Mr Zuma was accordingly
invalid. It was in the context
of that judgment that he went on to express the opinion, obiter, that
the executive might have interfered
in the decision to prosecute.
[184]
The
decision of Nicholson J was set aside on appeal. The SCA held that
findings of political interference are irrelevant to the
decision to
prosecute, stating that a prosecution is not wrongful merely because
it is brought for an improper purpose, but that
it will only be
wrongful if, in addition, reasonable and probable grounds for
prosecution are absent, the motive behind the prosecution
being
irrelevant.
[116]
In
addition, not only were Nicholson J’s findings found to be
irrelevant, but it was also held that they were gratuitous,
based on
suspicion and not on fact, and fell to be struck out.
[117]
It was even said that there may be reason to hold that many of the
allegations made were vexatious and scandalous, but that it
was not
necessary to decide that for the purposes of that judgment. The above
statements were referred to with general approval
in the full court
judgment.
[185]   Those
findings of irrelevance apart, Nicholson J’s comments regarding
political interference in any
event did not implicate Mr Downer. In
fact, the only reference in the judgement to Mr Downer was that he
was part of the team of
counsel representing the NDPP at the hearing.
[186]   There
is no substance to this ground of complaint. The issues have been
decided in the earlier judgments.
Mr
Mpshe’s April 2009 decision to discontinue Mr Zuma’s
prosecution, and Mr Hofmeyr’s affidavit.
[187]   Mr
Zuma, Thales and Thint were again charged by Mr Mpshe on 28 December
2007.
[188]   Mr
Zuma’s legal team made representations to the senior leadership
of the NPA in February 2009 to withdraw
the charges against him,
based on allegations of political meddling in the timing of the
service of the indictment on him in December
2007. The allegations
arose from secretly recorded telephone conversations or messages,
which became known as the spy tapes, between
Mr McCarthy and various
others, including Mr Ngcuka, Mr Mzi Khumalo, apparently a close
friend of Mr Ngcuka, and Mr Ronnie Kasrils,
the Minister of
Intelligence at that time. It was alleged that these recordings
showed that Mr McCathry manipulated the timing
of the decision to
charge Mr Zuma until after the Polokwane conference with the purpose
of undermining Mr Zuma’s chances
of being elected as the ANC
president at that conference. It was at the mid-December 2007
elective conference in Polokwane that
Mr Zuma would challenge Mr
Mbeki for the leadership of the ANC.
[189]   The
spy tapes were produced by Mr Zuma’s legal team when it made
representations to the NDPP. The origins
of these tape recordings
have never been fully disclosed, possibly, as the recordings might
not have been authorised by a valid
court order. If that is so, then
the recordings would have been obtained illegally, and probably would
be inadmissible in evidence.
No explanation has been advanced in the
present proceedings to satisfy me of the admissibility of these
recordings in evidence.
That said, the doubt attached to the
admissibility of the recordings has however not prevented them
receiving much judicial attention
in the past. In what follows, I
shall for the purposes of this judgment proceed in a similar manner,
as in the SCA spy tapes judgment,
although the admissibility of the
contents of the recordings has not been established and will have to
be established in the future,
if relied upon.
[190]   When
the spy tapes were produced Mr Mpshe instructed senior officials in
the NPA, including Mr Hofmeyr to
listen to the tapes and to advise
him. Mr Downer was not involved in this process. Mr Downer only
became aware of the tapes after
Mr Zuma’s legal representatives
had introduced them as part of the representations that were made and
when they were disclosed
to him. On 6 April 2009 Mr Mpshe accepted Mr
Zuma’s representations and made public disclosure of the taped
conversations
when announcing his decision to discontinue Mr Zuma’s
prosecution. The charges were formally withdrawn on 7 April 2009.
[191]   The
Democratic Alliance (DA) instituted proceedings to review this
decision of Mr Mpshe. Mr Hofmeyr deposed
to the main answering
affidavit for the NPA. He placed considerable reliance on allegations
of political inference as a fact, to
defend and justify Mr Mpshe’s
decision to discontinue the prosecution.
[192]   Mr
Zuma now alleges that Mr Downer knew about the conversations between
Mr McCarthy and Mr Ngcuka in the
run-up to the ANC’s December
2007 elective conference and that Mr Downer was and is indifferent to
them. There is no factual
basis alleged for that statement. It is
entirely speculative, or at best based on inadmissible hearsay. The
only direct evidence
on this aspect is that of Mr Downer. He is
unequivocal that he did not know of these conversations between Mr
McCarthy and Mr Ngcuka
and states that he only learned of them after
they were raised by Mr Zuma’s legal representatives during the
oral representations
in February 2009. He candidly states that it was
wrongful of Mr McCarthy to have discussed these matters, even if the
discussions
did not amount to political meddling, with Mr Ngcuka,
particularly as Mr Ngcuka was at the time no longer with the NPA and
was
a supporter of Mr Mbeki.
[193]   The
conversations forming the subject of the spy tapes, if correctly
recorded and authentic, may cast doubt
on Mr McCarthy’s
integrity, but in no way reflect adversely on Mr Downer. Indeed, Mr
Downer states that he was so shocked
by these revelations that he was
reduced to tears. Mr Downer all along believed and confirms that Mr
Mpshe’s decision in
late 2007 to reinstitute the prosecution
was untainted by the allegations of political conspiracy. The
investigation and prosecuting
team did not know about these
conversations at that time, and presumably neither did Mr Mpshe until
the spy tapes were produced
to him.
[194]   The
forum for evaluating these allegations and their relevance to the
fairness of the trial, was the court
that heard the permanent stay
application. The issue was raised, but the full court refused a
permanent stay of the prosecution.
It pointed out that the SCA had
concluded that
‘
[t]he
reasons for discontinuing the prosecution provided by Mr Mpshe do not
bear scrutiny, for the recordings themselves on which
Mr Mpshe
relied, even if taken at face value, do not impinge on the propriety
of the investigation of the case against Mr Zuma
or the merits of the
prosecution itself.’
[118]
The
full court further held:
[119]
‘
We considered that
Mr Zuma was also a party to the DA review application and the
findings of the SCA on this issue are binding upon
him. Assuming that
Mr Zuma’s accusation was true, that his prosecution is
politically motivated, his contention will still
be unsustainable
because the SCA reiterated in
National Director of Public
Prosecutions v Zuma
that a prosecution brought for an improper
purpose is only “wrongful if, in addition, reasonable and
probable grounds for
prosecuting are absent’. It has not been
shown before us that there are no reasonable and probable grounds for
prosecuting
Mr Zuma. Importantly, the challenges by Mr Zuma are not
aimed at the merits of the case against him.”’ (footnote
omitted)
[195]   The
issue has accordingly been decided, alternatively, the reasoning
above is binding on me. If the recorded
conversations did not affect
the validity of the prosecution, then it is difficult to see how
knowledge thereof on the part of
Mr Downer, even if that was
established, could affect the title of Mr Downer, or be a ground to
remove him as prosecutor.
[196]   Mr
Mpshe had only informed the prosecution team about the recordings
sometime after the representations had
been made. Even then, there
was no need for Mr Downer to report the existence of these recordings
to anyone in authority. The existence
of these tapes had been
disclosed to Mr Mpshe. Mr Mpshe, as the most senior official in the
NPA and as acting National Director
of Public Prosecutions, was
dealing with the issue and, it would be fair to assume, would deal
with any alleged impropriety arising
there from. It was not for Mr
Downer to take action separate from that which his administrative
head may decide on. To suggest
that his failure to have done so
somehow disqualifies him, has no merit.
[197]
The
Pretoria High Court reviewed Mr Mpshe’s decision to withdraw
the charges in the DA’s application, and set it aside
as
unlawful.
[120]
The Supreme
Court of Appeal upheld that decision on appeal
[121]
in ‘the spy tapes judgment’. At the hearing of the appeal
before the Supreme Court of Appeal on 14 September 2017,
and
unfortunately only then, Mr Zuma’s counsel and counsel for the
NPA conceded,
[122]
that Mr
Mpshe’s decision to discontinue the prosecution was unlawful
and irrational, and accordingly, that the decision accordingly
fell
to be set aside. The SCA, in a considered judgment, concluded that
the concessions were correctly made and that Mr Mpshe’s

decision to discontinue the prosecution was indeed irrational,
holding inter alia that:
[123]
‘
. . . other than
the hearsay evidence of the communications between the members of the
NIA and the NPA, we have no admissible substantiation
concerning the
authenticity or accuracy of the recordings. . . There is no
indication of how the recordings came to be in the possession
of Mr
Zuma’s legal team . . . It ought to have been an issue to which
the NPA paid greater and focused attention. Instead,
the NPA allowed
itself to be cowed into submission by the threat of the use of the
recordings, the legality of the possession of
which is doubtful.’
That
is also still the position at present.
[198]
And
further, the Supreme Court of Appeal stated:
[124]
‘
Questions of
admissibility aside, the conversations themselves do not impinge on
the integrity of the charges against Mr Zuma nor
do they intrude upon
the merits of the case. It is true that in the recorded conversations
there are exchanges between Mr McCarthy
and Mr Ngcuka about when Mr
Zuma is to be charged. Collectively, the conversations do not show a
grand political design nor is
there any indication of clarity of
thought on the part of Mr Ngcuka or Mr McCarthy about how either
former President Mbeki or Mr
Zuma would be decisively advantaged or
disadvantaged by the service of the indictment on either side of the
Polokwane conference
timeline.’
[199]
The
Supreme Court of Appeal continued:
[125]
‘
Moreover, even if
one accepts that Mr McCarthy had an ulterior purpose in seeking to
have the indictment served after the conference,
his conduct had no
bearing on the integrity of the investigation of the case against Mr
Zuma and did not impact on the prosecution
itself. It also has to be
borne in mind that Mr Mpshe himself and the Minister thought it wise
for the sake of the stability of
the country, to have the indictment
served after the Polokwane conference . . . It appears to me to be
inimical to the preservation
of the integrity of the NPA that a
prosecution is discontinued because of a non-discernible negative
effect of the timing of the
service of an indictment on the integrity
of the investigation of the case and on the prosecution itself. There
is thus no rational
connection between Mr Mpshe’s decision to
discontinue the prosecution on that basis and the preservation of the
integrity
of the NPA. If anything, the opposite is true. In these
circumstances discontinuing a prosecution in respect of which the
merits
are good and in respect of which there is heightened public
interest because of the breadth and nature of the charges and the
person
at the centre of it, holding the highest public office, can
hardly redound to the NPA’s credit or advance the course of
justice
or promote the integrity of the NPA.’
[200]
The
judgment reaffirmed the principle stated earlier above that the
motive for the prosecution was irrelevant. It held:
[126]
‘
Moreover, Mr Mpshe
ignored the dictum in the Zuma judgment by Harms DP that a bad motive
does not destroy a good case. A prosecution
brought for an improper
purpose, so said this Court in that case, is only wrongful if, in
addition, reasonable and probable grounds
for prosecuting are absent.
In the present case, on the NPA’s own version, the case against
Mr Zuma is a strong one. Once
it is accepted that the motive for a
prosecution is irrelevant where the merits of the case against an
accused are good, the motive
for the timing of an indictment to begin
the prosecution must equally be so.’
[201]
The
full court also observed that even if Mr Zuma’s prosecution was
politically motivated, it will not assist him for a permanent
stay
because a prosecution brought for an improper purpose is only
‘wrongful if, in addition, reasonable and probable grounds
for
prosecuting are absent.’
[127]
The full court held that it had not been shown that there were no
reasonable and probable grounds for prosecuting Mr Zuma, and
that the
challenges by Mr Zuma were not aimed at the merits of the case
against him. Mr Downer’s attitude has simply always
been, and
still is, that there is a reasonable prospect of a successful
prosecution. Whether his assessment is correct is what
this trial
will determine. But in the interim Mr Downer’s title to
prosecute is not impugned.
[202]
The
SCA had furthermore stated,
[128]
‘
[e]ven if one were
to accept that Mr McCarthy had his own ulterior purpose for having
the indictment served after the Polokwane
conference rather than
before it, what is indisputable is that it was in any event not
practically possible to have the indictment
served before the
conference. There were nonetheless sound, other reasons, such as the
stability of the country, accepted as such
by both Mr Mpshe and the
Minister of Justice and Constitutional Development, that dictated
service of the indictment after the
Polokwane conference. In the
circumstances Mr McCarthy’s alleged motive in relation to the
timing of the service of the indictment
was ultimately irrelevant.’
Practically
the timing had no effect, and, on the facts alleged, have not
infringed Mr Zuma’s right to a fair trial.
[203]   The
essence of Mr Zuma’s complaint in this regard, as I understand
it, is that Mr Downer should have
done something about this political
interference, and that such failure now disqualifies him from
prosecuting in the case. But
the rhetorical question that must
immediately be posed, is what should Mr Downer have done, and when?
That was not addressed in
the founding affidavits at all. On the
factual matrix before me there is no criticism that can be raised
against Mr Downer.
[204]   Further,
in the permanent stay application Mr Downer who deposed to the
answering affidavit of the State,
duly authorised thereto, recorded
that the State was not relying on the evidence and allegations of
political interference in Mr
Hofmeyr’s affidavit, and which Mr
Zuma sought to rely on in those proceedings and still relies in these
proceedings. The
Supreme Court of Appeal in the spy tapes judgement
had rejected Mr Hofmeyr’s evidence and allegations, including
that the
tapes indicated political interference, which would result
in Mr Zuma not receiving a fair trial.
[205]
Finally,
it is not without significance that despite receiving further
representations from Mr Zuma after the spy tapes judgment,
the
subsequent NDPP, Mr Abrahams took the decision that the prosecution
against Mr Zuma and Thales should continue.
[129]
Mr
Downer’s public reaction to Mr Mpshe’s decision
[206]   The
allegations in this regard are: that Mr Downer in his affidavit of 2
June 2015 in the spy tapes matter
said he cried when Mr Mpshe had
announced the decision to terminate Mr Zuma’s prosecution and
threatened to resign in protest
against that decision; and that in
‘public engagements’ specifically public lectures, Mr
Downer had ‘freely given
strong views’ and denounced
decisions taken regarding the prosecution, which have ‘galvanised
political campaigns’
for Mr Zuma’s prosecution.
[207]   Mr
Zuma does not state that he was present on the occasion when Mr Mpshe
announced his decision, or when
Mr Downer allegedly threatened to
resign, or that he was present during the lectures. Nor is there any
confirmatory affidavit.
The allegations therefore are hearsay at
best. Mr Downer has however dealt with these events and his account
is the only direct
version of what transpired.
[208]   As
regards him having cried, Mr Downer states that the allegation is
incorrect. The occasion when he was
reduced to tears was at a meeting
on 18 March 2009 attended by Mr Mpshe, Deputy National Directors of
Public Prosecution, and the
investigating director of the DSO, Mr
Mngwengwe, when Mr Hofmeyr and the then acting head of the DSO, Mr
Mzinyathi made a presentation
on the contents of the spy tapes.
[209]   Further,
as regards his threat to resign, what Mr Downer said in his affidavit
of 2 June 2015, dealt with
the memorandum from the prosecution team
to Mr Mpshe, dated 6 December 2007. The memorandum followed Mr Mpshe
having told Mr Downer
that he had decided to delay announcing the
decision to charge Mr Zuma until the following year because he did
not wish the NPA
to be seen to be responsible for Mr Zuma failing to
be elected as ANC president at Polokwane. In his affidavit Mr Downer
said that
the prosecution team’s view was that any decision to
delay the prosecution for reasons unconnected to the prosecution was

improper and that the team felt so strongly about this that they
initially decided to resign from the prosecution in protest, but

reconsidered doing so in the interest of the NPA.
[210]   I
do not see anything untoward in those reactions and responses that
would disqualify Mr Downer from prosecuting
or result in him having
‘no title to prosecute’.
[211]
As
regards the second allegation above, Mr Downer has only spoken
publicly on one occasion, outside of proceedings in court, when
he
delivered a lecture at the Middle Temple South African Conference on
24 September 2010, at the invitation of the Middle Temple,
for which
the then NDPP, Mr Menzi Simelane, had agreed to release him. None of
the cases on which he commented, particularly the
present criminal
prosecution, was ‘live’ at the time of his lecture.
Criticisms which he expressed in that lecture
of Mr Mpshe’s
decision, have in any event been superseded by the findings of the
Supreme Court of Appeal in the spy tapes
matter. Mr Downer’s
stance has been vindicated by those findings, whilst those of his
superiors, who he contradicted, were
rejected and set aside as
irrational.
[130]
[212]
The
allegations of alleged misconduct by Mr Downer by giving the public
lecture also arose in the permanent stay application. The
full court
did not deal with those allegations in its judgment, because at the
hearing Mr Zuma’s counsel expressly abandoned
this attack. It
was submitted on behalf of Mr Downer that by doing so Mr Zuma,
through his counsel, waived his right to rely on
this alleged
misconduct as a basis for claiming that he will not have a fair trial
guaranteed by s 35(3) of the Constitution.
[131]
I agree with that submission. But regardless of any such waiver, the
complaints are in any event, without merit.
Mr
Downer’s affidavit in the Spy Tapes matter
[213]   Mr
Zuma complains that Mr Downer filed his affidavit as an essential
witness in support of the DA’s
application in the spy tapes
matter, which challenged Mr Mpshe’s decision to discontinue the
prosecution against him. Mr
Zuma views this as Mr Downer siding with
his political opponents, the official opposition in the South African
legislature. In
his founding affidavit, Mr Zuma argued that Mr Downer
was ‘acutely aware’ at the time of the DA’s
application
that the official opposition was ‘hostile’
towards him and wanted his prosecution ‘at all costs’,
and that
Mr Downer had submitted his affidavit to support and side
with them. He further alleges that the filing of this affidavit and
Mr
Downer’s opposition to the NPA’s basis for defending
the discontinuation of his prosecution, placed Mr Downer in the

position of a prosecutor who is neither independent nor impartial in
relation to his rights to a fair trial.
[214]   The
decision to discontinue the prosecution against Mr Zuma was taken by
the then acting NDPP Mr Mpshe on
the advice of Mr Hofmeyr, a senior
prosecutor in the NPA. The series of intercepted discussions on the
‘spy tapes’,
were considered by Mr Mpshe to have pointed
to a political conspiracy against Mr Zuma which required the
discontinuance of his
prosecution. Mr Downer was not responsible for
that decision.
[215]   Mr
Downer was not ‘an essential witness’ in the Spy Tapes
case. He did not submit his affidavit
in support of the DA. His
affidavit was provided at the request of Mr Hofmeyr after he, Mr
Downer, had refused to make an affidavit
simply confirming the
contents of Mr Hofmeyr’s affidavit. The initial draft of Mr
Downer’s affidavit was, in fact,
revised by counsel for the
NPA, advocate Millard. Mr Downer’s affidavit disagreed with the
decision of Messrs Mpshe, Hofmeyr
and the senior leadership of the
NPA, who had sought to defend Mr Mpshe’s decision to
discontinue the prosecution. Mr Downer’s
finalised affidavit
was filed by the State Attorney, which was representing the NPA, on
11 June 2015. These are matters of public
record about which there is
no dispute. Mr Downer’s independence of mind speaks for itself.
And his stance was ultimately
vindicated by the judgment in the Spy
Tapes matter by the SCA, after both Mr Zuma’s counsel and
counsel of the NPA conceded
that Mr Mpshe’s decision, which
they initially sought to defend, was ‘irrational’ and
unlawful.
[216]   Whatever
reputational harm Mr Zuma might have suffered as a result of any
purported political manipulation
of the timing of the prosecution
process, alluded to in the spy tapes, did not prevent him from being
elected President in 2009,
and to continue in that position for just
under nine years. What has not been shown, more importantly for the
purposes of this
judgment, is that his fair trial rights have been
impeded in any way by any conduct of Mr Downer, or that Mr Downer has
lost the
title to prosecute, or should be removed as prosecutor.
‘
Browse
Mole’, Mr McCarthy and foreign intelligence services (CIA)
[217]   Mr
Zuma states that he has
‘
now been advised
of very damaging information relating to how McCarthy, (Mr Downer’s)
immediate head, was in regular contact
with intelligence operatives
of foreign governments in which he freely discussed my prosecution
with them’.
This
statement refers to Mr McCarthy allegedly having been an intelligence
operative handled by a Central Intelligence Agency (CIA)
agent, Mr
Andre Pienaar, code named Lucianno. The two sources of information
relied upon for these allegations are the ‘Browse
Mole’
report and the spy tapes.
[218]   Apart
from these statements being inadmissible hearsay, they do not
implicate Mr Downer. Mr Zuma attempts
to deal with that by
contending: that Mr Downer ‘would have known the role of
McCarthy to whom he reported’; that Mr
Downer ‘was aware
that there was regular contact between foreign intelligence agencies
and Mr McCarthy, the person to whom
he reported’; that Mr
Downer ‘is acutely aware of Mr McCarthy’s intelligence
connections’; that Mr Downer
knew that Mr McCarthy had received
gifts from Mr Pienaar and had discussed the prosecution of Mr Zuma
with Mr Pienaar; and that
Mr Downer deliberately omitted to report Mr
McCarthy’s conduct to the relevant authorities. Mr Zuma also
says that he fears
Mr Downer covered up Mr McCarthy’s conduct.
[219]   These
statements all amount to speculative conclusions without any factual
basis being alleged in support
thereof. There is no admissible
evidence to support even an inference of knowledge on the part of Mr
Downer of any involvement
Mr McCarthy might have had with foreign
intelligence agencies. Being speculative, the allegations and do not
call for an answer.
[220]   Nevertheless,
Mr Downer has responded. He confirms under oath that he has no
knowledge whether Mr McCarthy
was in contact with intelligence
operatives of foreign governments, or not, let alone whether Mr
McCarthy discussed Mr Zuma’s
prosecution with them. Mr Downer
denies being involved in the Browse Mole investigation or report. He
was unaware of its existence
until it was publicised after being
leaked. He does not know a Mr Pienaar and has no knowledge of any
alleged conversation between
this Mr Pienaar and Mr McCarthy. Mr
Downer is clear that he did not then have, and does not now have, any
management responsibilities
within the NPA at head office level. He
denies that he was aware of any intelligence connections Mr McCarthy
allegedly had, or
any gifts Mr McCarthy allegedly received. Mr
McCarthy had resigned from the NPA in June 2008 and by the time Mr
Zuma’s legal
representatives disclosed the spy tapes to the NPA
in February 2009, Mr McCarthy had emigrated and was working for the
World Bank
in Washington. Mr Downer only became aware of the conduct
of Mr McCarthy after Mr McCarthy had emigrated to work in Washington.

It is therefore difficult to understand how Mr McCarthy’s
conduct, even assuming the allegations against him to be factually

correct, could have any adverse bearing on Mr Downer’s
suitability as prosecutor in this matter.
[221]   Furthermore,
Mr Downer confirms that none of the evidence gathered by the
investigation and prosecution team
- all of which had been discovered
to Mr Zuma’s legal representatives - derives from the Browse
Mole investigation and report.
The contents of the Browse More report
had nothing to do with and played no part in the investigation and
prosecution of Mr Zuma.
He denies that ‘foreign intelligence’
was involved in Mr Zuma’s prosecution.
[222]   The
mere fact that Mr Downer reported to Mr McCarthy as the head of the
DSO, the investigation and prosecution
being a DSO project, does not
mean that Mr Downer knew about Mr McCarthy’s involvement in the
matter.
[223]   Mr
Downer’s aforesaid denials all stand uncontradicted in reply.
[224]
The
full court in the permanent stay application observed that the full
court in the Spy tapes application had found, as confirmed
by the
SCA, that references by Mr Hofmeyr to Mr McCarthy’s conduct in
relation to the Browse Mole report, were ‘diversionary
and
irrelevant as they were unconnected to the prosecution or the service
of the indictment.’ The full court in the stay
application
considered and rejected Mr Zuma’s allegations concerning the
Browse Mole investigation and report.
[132]
I have no reason to disagree with the view that they were irrelevant
and unconnected to the prosecution, and am bound by that decision.

This complaint is accordingly likewise without merit.
Mr
Downer’s failure to report political interference
[225]   Mr
Zuma alleges that Mr Downer ‘is and always has been aware’
of unlawful political interference
in decisions concerning his
prosecution, but failed to report them, in breach of the provisions
of s 32(1)(b) of the NPA Act.
[226]   Section
32(1) of the NPA Act provides:
‘
(1)
(a)
A
member of the
prosecuting authority
shall serve impartially
and exercise, carry out or perform his or her powers, duties and
functions in good faith and without fear,
favour or prejudice and
subject only to the Constitution and the law.
(b)
Subject
to the Constitution and this Act, no organ of state and no member or
employee of an organ of state nor any other person
shall improperly
interfere with, hinder or obstruct the prosecuting authority or any
member thereof in the exercise, carrying out
or performance of its,
his or her powers, duties and functions.’ (emphasis in
original)
[227]   Accusing
Mr Downer of a failure to report political interference presupposes
that Mr Downer knew of the political
interference at the time, and
that he was required to report it if it was not receiving the
attention of his superiors. No factual
basis is laid from which
knowledge of the alleged political interference on his part can be
inferred. It is mere speculation.
[228]   The
only events which may amount to political interference in decisions
regarding Mr Zuma’s prosecution,
relate to the discussions
between Mr McCarthy and Mr Ngcuka, which formed the subject matter of
the spy tapes. This has already
been dealt with fully earlier in this
judgment, and will not be repeated. Mr Downer was not aware of these
discussions when they
occurred. They were only reported in February
2009 by Mr Zuma’s legal representatives to the senior
leadership of the NPA.
The prosecution team was only advised thereof
subsequently. On 6 April 2009 Mr Mpshe made them public when
announcing his decision
to discontinue Mr Zuma’s prosecution.
Mr Mpshe, the most senior official in the NPA, and another senior
official, Mr Hofmeyr,
were dealing with the issue. There is nothing
further Mr Downer could or should have done. When Mr Mpshe and Mr
Hofmeyr concluded
irrationally that the contents of the tapes were
grounds to discontinue the prosecution, Mr Downer spoke up, to the
extent of filing
an affidavit in the spy tapes matter, filed by the
State Attorney representing the NPA, disagreeing with the stance
taken by his
superiors.
[229]   There
is no evidence that Mr Downer was in possession of any evidence, to
justify laying any charges against
his superiors. He says that much
in the answering affidavit, and any suggestion to the contrary is
based on mere suspicion or speculation.
There is also no evidence
that he occupied an administrative position where that would have
been required of him. During argument,
Mr Masuku submitted that Mr
Downer should have used ‘the internal process’ to object
to the conduct of his superiors.
But that allegation was never made
in the affidavits, and it is not known what this internal process
would have entailed, or whether
it was even available to Mr Downer.
Consequently, it was not dealt with in answer, and cannot be relied
on.
[230]   On
the evidence before me Mr Downer played no role in, and had no
knowledge of, the alleged political interference.
He can accordingly
not be an ‘essential witness’ in the allegations of
political interference, and is not on that basis
excluded from
prosecuting in this trial.
Mr
Downer’s alleged leaks to the media.
[231]   Mr
Zuma complains that information regarding his prosecution was leaked
by the NPA to the media, specifically,
that Mr Downer disclosed
information to a journalist, Mr Sam Sole of the
Mail &
Guardian
.
[232]   Mr
Downer does not dispute that there have been leaks from within the
NPA,  but denies that he was involved
in such leaks and denies
that these were part of a concerted NPA strategy employed in the
prosecution of Mr Zuma. Instead, he said,
while Mr Zuma was Deputy
President, the NPA went to ‘extraordinary measures’ to
keep the fact of his prosecution confidential.
[233]   Insofar
as Mr Zuma seeks to impute the leaking of confidential information
about the investigation and prosecution
to Mr Sole, to Mr Downer
specifically, the allegations are based on speculation, unsupported
by admissible evidence from Mr Zuma.
The facts are confined to what
Mr Downer has admitted.
[234]   These
allegations of leaks to the media are also not new. They were
referred to in the permanent stay application
and accordingly became
an issue in that application. Mr Downer denies that they were of a
pervasive nature and that any members
of the prosecution team were
responsible for those leaks. At the hearing of the stay application
Mr Zuma through his counsel, expressly
disavowed, and accordingly
waived, reliance on the leaks. That this was so, has not been
disputed in reply. Mr Masuku, who co-signed
the special plea in this
matter, is one of the senior counsel who represented Mr Zuma in the
stay of prosecution application. The
alleged media leaks to Mr Sole
are accordingly, at that level, no longer an issue on which reliance
can again be placed.
[235]   However,
insofar as reliance on the leaks might be found not to have been
waived as a ground of complaint
in the context of this trial, Mr
Downer admits to having had certain discussions with Mr Sam Sole of
the
Mail & Guardian
, but denies that these were related to
the investigation and prosecution of Mr Zuma, except for two
questions which related to
the workings of the International
Co-operation in Criminal Matters Act 75 of 1996 (referred to as
ICCMA) and international requests
for mutual legal assistance
(referred to as MLA). He denies that these involved any confidential
information regarding Mr Zuma’s
prosecution being disclosed.
That version of Mr Downer is not gain-said.
[236]   Mr
Sole published an article entitled ‘Scorpions probe Jacob Zuma’
in the
Mail & Guardian
of 29 November 2002. Mr Zuma
speculates that Mr Sole ‘appears to have obtained this
information from his association with
Mr Downer SC. There is no
factual basis for that suspicion. To place that article in
perspective, Mr Downer had previously deposed
to an affidavit when
applying for mutual legal assistance (MLA) in respect of a person who
was identified simply as ‘Mr X’.
‘Mr X’ was
not identified. Mr Sole, in his article however implicated Mr Zuma.
He relied on an affidavit which was
deposed to by Mr Shaik on 26
September 2002, being a matter of public record, in proceedings in
the Durban High Court, in which
Mr Shaik made public that Mr Zuma was
being investigated by the DSO. Mr Downer was not the source for Mr
Zuma being named in the
media. Indeed, Mr Zuma states that the
article cited Mr Shaik’s application and the earlier affidavit
by Mr Downer in the
application for mutual assistance, which only
referred to a ‘Mr X’.
[237]   This
is accordingly not a ground to find that Mr Downer does not have
title to prosecute, or that he should
be removed as prosecutor. He
had not disclosed anything confidential regarding Mr Zuma to Mr Sole.
[238]   During
the argument before me, at the end of his reply, Mr Mpofu referred to
the provisions of s 41(6) of
the NPA Act. S 41(6) had not been
mentioned before, and was as far as I was able to confirm on a re
perusal of the supplementary
evidence affidavit, also not advanced in
that affidavit. Mr Downer did not have the opportunity to respond
thereto. The reference
to s 41(6) arose specifically when, at the
conclusion of his argument in reply, Mr Mpofu handed up a draft
order, which apart from
seeking an order declaring that Mr Downer
lacks title to prosecute Mr Zuma, and asking for leave to lead oral
evidence on the issue
of an acquittal in terms of s 106(4), sought an
order:
‘
3.      Referring
the matter of alleged breaches of Section 41(6), read with Section
41(7), of the
National Prosecuting Act 32 of 1998 to the National
Director of Public Prosecutions and the Legal Practice Council for
further
investigation and appropriate action.’
[239]   Sections
41(6) and (7) provide:
‘
(6)   Notwithstanding
any other law, no person shall without the permission of the
National
Director
or a person authorised in writing by the
National
Director
disclose to any other person—
(a)
any
information which came to his or her knowledge in the performance of
his or her functions in terms of
this Act
or any other law;
(b)
the
contents of any book or document or any other item in the possession
of the
prosecuting authority
; or
(c)
the
record of any evidence given at an investigation as contemplated in
section 28(1), except—
(i)     for
the purpose of performing his or her functions in terms of
this
Act
or any other law; or
(ii)     when
required to do so by order of a court of law.
(7)    Any
person who contravenes subsection (6) shall be guilty of an offence
and liable on conviction to a
fine or to imprisonment for a period
not exceeding 15 years or to both such fine and such imprisonment’
(emphasis in the
original)
[240]   As
the complaint was only made in argument and then in reply. Mr Downer
did not have an opportunity to respond
thereto. I accordingly also
did not have the benefit of the issue having been dealt with fully in
argument. In those circumstances
I consider that it will be improper
to consider the request for any such a referral further in this
judgment. Apart from that procedural
difficulty, I have doubt whether
the wide terms of s 41(6) are necessarily constitutional and/or would
necessarily find application
on the facts of this matter.
Prima
facie
, it would not, in my view, be unlawful for a prosecutor to
deal with enquiries from the press, to ensure that the public is
properly
informed of the work of the NPA and the progress in
investigations, which inevitably might result in the disclosure of
information which came to his or her knowledge in
the performance of his or her functions in terms of the NPA Act, or
any other
law
. I would have thought that s 41(6) would not,
for example, prohibit a member of the NPA, in response to enquiries
from a journalist,
to confirm or deny that a particular suspect might
or might not be formally indicted on particular charges, or that
assistance
regarding a particular investigation in another
jurisdiction, was being pursued. But these are simply ruminations
without the benefit
of having heard considered argument. If it is
believed that the provisions of s 41(6) outlaws such conduct, then a
formal charge
in that regard can be pursued, where the proper
application of s 41(6) can be fully ventilated and its proper
interpretation determined.
Mr
Downer’s insistence that Mr Zuma be prosecuted
[241]   Mr
Zuma alleges that Mr Downer has pursued his prosecution with
‘unrestrained gusto’ to ensure
that he is convicted ‘at
all costs’, and that Mr Downer’s ‘20 year-long
commitment to this case is now
an obsession for a legacy and not a
pursuit of justice’. This is a conclusion, a matter of opinion,
rather than fact.
[242]   In
answer, Mr Downer referred to documents prepared by him as part of
the prosecution team, addressed to
the various National Directors of
Public Prosecutions, over many years, which all reveal that far from
seeking Mr Zuma’s
conviction ‘at all costs’, he and
the prosecution team have consistently adopted a careful and measured
approach. The
documents include: initially a detailed memorandum of
16 June 2005 addressed by Mr Downer and Mr Steynberg to Mr Pikoli on
the
prospects of successfully prosecuting Mr Zuma. Secondly, a formal
application in terms of s 2(4) of POCA dated 30 November 2007,
which
contained a careful weighing up of the pros and cons of including
racketeering charges in terms of s 2(1) of POCA in the
indictment.
Thirdly, a memorandum addressed by the prosecution team to Mr Mpshe
on 3 March 2009 on its evaluation of Mr Zuma’s
representations
that the prosecution should be discontinued. Fourthly, a memorandum
addressed by the prosecution team to Mr Mpshe
on 14 April 2009
recounting events and decisions involving the prosecution team
shortly before the media conference on 6 April
2009 when Mr Mpshe
announced his decision to discontinue Mr Zuma’s prosecution,
and recording the team’s reservations
about that decision in
measured terms.
[243]   Mr
Downer has explained that his insistence, since 2003, that Mr Zuma be
prosecuted, was based on his and
the investigation and prosecution
team’s assessment of the evidence against Mr Zuma. Mr Zuma’s
fair trial rights have
not been infringed. Mr Downer has consistently
maintained that the decision by Mr Mpshe to institute criminal
proceedings against
Mr Zuma, should be implemented. He resisted the
subsequent decision of Mr Mpshe and Mr Hofmeyr, to discontinue the
prosecution.
His stance was vindicated by the SCA.
[244]   At
a more technical level also, the formal decision of the NPA to
prosecute Mr Zuma, is not Mr Downer’s
decision. The decisions
to prosecute Mr Zuma has been wrongly ascribed to Mr Downer, whereas
they are decisions taken by the national
directors of public
prosecution, namely Mr Pikoli in June 2005 and Mr Mpshe in December
2007, albeit in conjunction with input
from the investigation and
prosecution team and the head of the DSO. On the most recent occasion
for reflecting on whether the
prosecution against Mr Zuma should
continue, the then National Director of Public Prosecutions, Mr Shaun
Kevin Abrahams, on 16
March 2018, after the judgement of the SCA in
the spy tapes case, rejected Mr Zuma’s further representations
and concluded
that ‘there are reasonable prospects of a
successful prosecution of Mr Zuma on the charges listed in the
indictment, served
on Mr Zuma prior to the termination of the matter
by Adv Mpshe SC’.
[245]   Mr
Zuma has not been prosecuted because Mr Downer is insistent on
prosecuting him but because the NDPP, obedient
to the judgement of
the SCA in the spy tapes case, decided that his prosecution must
continue. The full court thereafter also rejected
his application for
a permanent stay of prosecution.
The
leaking of confidential medical information
[246]   The
medical information referred to is that contained in the letter from
Brigadier General (Dr) M.Z. Mdutywa,
General Officer Commanding Area
Military Health Formation, dated 8 August 2021 and carries an
official stamp dated 8 August 2021,
addressed to the ‘Head of
the Centre, Estcourt Correctional Centre, Department of Correctional
Services, Estcourt’,
referred to above. The letter recorded,
inter alia, that ‘[o]n 28 November 2020, the President was put
under active care
and support after he suffered a traumatic injury’,
that he ‘needed an extensive emergency procedure that has been
delayed
for 18 months due to compounding legal matters and recent
incarceration and cannot be delayed any further as it carries a
significant
risk to his life’ and that the ‘minimum
proposed period of care is six months.’
[247]   On
10 August 2021 an application was launched, carrying the date stamp
of the Registrar, to give effect to
my directive, quoted in paragraph
33 above, which required that the application for an adjournment of
the proceedings was required
to be ‘supported by an affidavit
by a medical practitioner treating Mr Zuma.’ In the application
Mr Zuma sought an
order that, ‘The trial and all other related
proceedings between the State and Jacob Gedhleyihlekisa Zuma and
Thales Africa
(Pty) Ltd are adjourned in terms of
Section 168
of the
Criminal Procedure Act 51 of 1977
to a date agreed upon by the
parties or determined by this Honourable Court.’ The
application was supported by an affidavit
by Mr Thusini, duly
authorised thereto by Mr Zuma, to which the letter from Brigadier
General (Dr) Mdutywa was annexed, and was
supported by a confirmatory
affidavit of Brigadier General (Dr) Mdutywa. This confirmatory
affidavit was in the usual terms that
he had read the affidavit of Mr
Thusini and confirmed that the contents thereof were correct in so
far as they related to him.
Mr Downer also filed an affidavit headed
‘The States Affidavit regarding the Postponement of the
Proceedings on 10 August
2021’, to which the letter from
Brigadier General (Dr) Mdutywa was also attached. The medical
condition of Mr Zuma accordingly
was a material issue on 10 August
2021, and will remain one should Mr Zuma not be able to attend
further proceedings due to his
physical condition.
[248]   An
adjournment of the proceedings, which were due to commence on 10
August 2021, had effectively forced on
the parties by the contents of
Brigadier General (Dr) Mduywa’s letter. As indicated earlier in
this judgment, on 10 August
2021 I granted an order postponing the
matter to 9 and 10 September 2021, directed that the medical report
in respect of Mr Zuma
be delivered by not later than 20 August 2021,
and ordered that the State may appoint a medical practitioner of its
choice to examine
Mr Zuma, and if necessary to give evidence, as to
his fitness to attend court and stand trial.
[249]   Paragraph
3 of that order did not expressly refer to the authority for such an
order. The statutory provision
that applies is
s 37(3)
(b)
of
the CPA which provides that:
‘
(3)
Any
court before which criminal proceedings are pending may –
(a)
.
. .
(b)
order
that the steps, including the taking of a blood sample, be taken
which such court may deem necessary in order to ascertain
the state
of health of any accused at such proceedings’
[250]   On
7 September 2021 Mr Zuma filed a supplementary evidence affidavit
seeking an order that ‘at the
hearing of this matter on a date
to be directed by the Honourable Court, the First Accused intends to
apply for an order granting
leave to admit into evidence the First
Accused’s supplementary affidavit filed in terms of section 115
of the Criminal Procedure
Act 51 of 1977 (“the CPA”) in
so far as it relates to the additional plea brought in terms of
section 106 (1) (h) read
with section 106 (4) of the CPA.’
[251]   The
affidavit of Mr Thusini, filed in support of the supplementary
evidence application, raises that Mr Downer,
in the previous
application for the postponement of the proceedings on 10 August
2021:
‘
. . strangely
filed an unsolicited affidavit even prior to us filing our
postponement application in which he disclosed and annexed
the
confidential medical report in respect of Mr Zuma. While preparing
our application (that was the postponement of the proceedings
on 10
August 2021), an inquiry was made by a journalist who appeared to
have a source in the NPA on matters involving Mr Zuma,
who broke the
story of the medical report/letter and to our utter surprise and
shock, referred to its contents in such a way that
it was abundantly
clear that the journalist had read or had been advised of the
contents thereof. This was despite serious pleas
made by Mr Zuma’s
legal representatives to the NPA’s legal representatives to
treat the report or letter with the strictest
confidentiality. The
medical report/letter is incidentally similar to the one which was
rejected by Judge Pillay . . .’
[252]   In
answer to the supplementary evidence affidavit of Mr Thusini, Mr
Downer explained that on Friday 6 August
2021 the Head of the
Estcourt Correctional Centre, Ms Radebe, sent a WhatsApp message to
Ms Naicker of the NPA recording that Mr
Zuma had been ‘emergency
referred to outside hospital due to his medical condition last
night.’ Ms Naicker thereupon
enquired from Ms Radebe whether
she was able to give any indication as to whether Mr Zuma would be
brought to court as per the
requisition for his attendance on 10
August 2021. Ms Radebe’s response was that she was awaiting
documents with that information.
On the same day, the Department of
Correctional Services issued a media release stating that Mr Zuma had
been admitted to a hospital
outside the prison for medical
observation by the South African Military Health Services. On
Saturday, 7 August 2021 Ms Naicker
was contacted by a Mr Kenneth
Mthombeni, who introduced himself as the Acting Regional Commissioner
of Correctional Services. He
indicated, regarding the requisition for
Mr Zuma, as subsequently confirmed by her in a WhatsApp message, that
Mr Zuma would not
be brought to court as he was hospitalised in
Pretoria.
[253]   Mr
Downer explains that on Sunday 8 August 2021 at 14h24 Ms Naicker, the
Director of Public Prosecutions,
KZN (Ms Zungu) and Mr Downer
received an email from Ms Radebe, the officer in charge of the
Estcourt Correctional Centre, to which
the letter addressed to her
earlier that day by Brigadier General (Dr) MZ Mdutywa, being the
letter referred to above, was attached.
The State was not satisfied
with the vague generalities in the letter regarding Mr Zuma’s
‘condition’, the ‘extensive
emergency procedure’
and the ‘minimum proposed care of six months.’
[254]   Lead
counsel for the State, Mr Trengove SC contacted Mr Mpofu regarding
the postponement of the proceedings
of 10 August 2021. The final
terms thereof were finally agreed during subsequent exchanges
extending, it seems, to Monday, 9 August
2021, a public holiday. Mr
Downer addressed an email to my Registrar advising me that following
the hospitalisation of Mr Zuma
late the previous week, the State and
the legal representatives of Mr Zuma had been separately informed by
the Department of Correctional
Services and Military Health Services
that he remained admitted in an outside health facility. This email
also recorded that Mr
Downer was ‘busy making an affidavit that
explains the sequence of events that have led to this approach for a
new directive.’
[255]   At
11h46 on 9 August 2020 11h46 Mr Downer sent a second email to my
Registrar, copied to Mr Thusini, to which
he attached an unsigned
copy of the affidavit he said he would provide, including the
annexures thereto which included the letter.
[256]   Mr
Downer’s answering affidavit, to the supplementary evidence
affidavit of Mr Thusini explains that:
’
41.   Later
that afternoon (9 August 2021), around 16h45, a journalist, Ms Karyn
Maughan of Newsweek 24, requested
from one of the State’s
counsel, Adv Breitenbach SC, copies of any court papers pertaining to
the proceedings the following
day. Adv Breitenbach sent a copy of
Justice Koen’s letter (i.e. annexure AA 20) and the unsigned
copy of my affidavit, the
annexures thereto and the unsigned copy of
Adv Naicker’s affidavit.(i.e. annexure AA19). The unsigned
affidavits were sent
to her on condition that she not publish
anything based on them or their annexures before the signed
affidavits were filed with
this Honourable Court. In response to a
request, Adv Breitenbach SC also agreed to forward to her any papers
which may be delivered
on behalf of the accused.
42.   That
evening (9 August 2021), at 21h08, Mr Thusini emailed to Justice
Koen’s Registrar, to me and to
the second accused’s
attorneys, an application by the first accused for the postponement
on 10 August 2021 of the trial and
all other related proceedings
between the State and the accused to a date to be agreed by the
parties or determined by Honourable
Court. The application was
supported by affidavits made by Mr Thusini and Brig Gen Mdutywa. The
annexures to Mr Thusini’s
affidavit included (as annexure FA2)
a copy of Brig Gen Mdutywa’s letter to Ms Radebe of 8 August
2021, i.e. annexure AA
14 hereto . . .
43.   On
Monday (Tuesday), 10 August 2021, at about 07h30, Adv Breitenbach SC
sent to Ms Maughan the first accused’s
postponement application
(annexure AA 22). In response to a request that we inform her once my
and Ms Naicker’s signed and
commissioned affidavits had been
filed, around 08h00 Adv Breitenbach, after checking with me, told her
they would be filed shortly.
44.   To
the best of my knowledge, the first media article based on my
affidavit of 9 August 2021 (annexure AA 19)
and on the first accused
postponement application (annexure AA 22) was the one published by Ms
Maughan on News 24 later that morning
(10 August 2021). . . As is
apparent, it includes excerpts from Brig Gen Mdutywa’s letter
to Ms Radebe of 8 August 2021 (annexure
AA14).’
[257]   In
reply to Mr Downer’s allegations above, Mr Thusini in his
replying affidavit stated that:
‘
In the context of
the issues which are pertinent to these proceedings the mere fact
that it turns out that it was the one member
of the current
prosecuting team namely, Adv Breitenbach SC and not directly Adv
Downer SC who executed the leak, is neither here
nor there. There is
no solid line between the misconduct of Adv Downer SC which is the
principal focus of the section 106 (1) (h)
inquiry and the misconduct
of the NPA itself, which is the focus of the section 106 (4).’
[258]   The
ambit of the complaint raised by Mr Zuma was then widened to also
question ‘the appointment and
involvement of the two counsel
who are in private practice namely Adv Trengove SC and Breitenbach SC
who represent the State’,
presumably on a basis similar to the
objection taken to the counsel for the State in
Porritt.
This
is an issue that had not been raised before, to which there has been
no opportunity to respond, and which accordingly will
not be
considered in this judgment.
[259]   The
signed application for a postponement, and the affidavits thereto and
the signed affidavit of Mr Downer
relating to the adjournment, were
filed with the court on the morning of 10 August 2021. The
chronological sequence of the events
culminating in that application
has assumed significance.
[260]   Mr
Thusini’s affidavit in the application for postponement was
commissioned
ex facie
that document before a practicing
attorney in Vryheid on 9 August 2021. The confirmatory affidavit of
Brigadier General (Dr) Mdutywa,
confirming the contents of the
affidavit of Mr Thusini to which Brigadier General (Dr) Mdutywa’s
letter of 8 August 2021
was annexed, was attested,
ex facie
that affidavit, before a Commissioner of Oaths with the military
police, on 8 August 2021. The official stamp of the Military Police,

also reflects the date of attestation as ’08-08-2021’. Mr
Thusini’s affidavit did not however exist in commissioned
form
on 8 August 2021.
[261]   There
has been no suggestion that Brigadier General (Dr) Mdutywa on 8
August 2021 was confirming the contents
of an ‘affidavit’
other than the, at that stage, still unsigned affidavit of Mr
Thusini, which was signed and attested
the next day on 9 August 2021.
As a Brigadier General in the South African National Defence Force he
would, I assume, not sign
a confirmatory affidavit confirming the
contents of a non-existent affidavit, but would have intended to
refer to the ‘affidavit’
(presumably the unsigned draft)
of Mr Thusini, although not truly yet an affidavit, on 8 August 2021.
There would be no, or little,
purpose in Brigadier General (Dr)
Mdutywa confirming the ‘affidavit’ of Mr Thusini other
than for the medical aspects
it contains, or would contain, including
his letter of 8 August 2021.
[262]   Mr
Mpofu suggested from the bar that the date of attestation of the
affidavit of Brigadier General (Dr) Mdutywa,
was simply an ‘error.’
I am, with respect, unable to, and cannot on what is before me,
accept that there was simply
an error. The date of the 8
th
of August 2021 was inserted on Brigadier General (Dr) Mdutywa’s
affidavit twice: once in manuscript and then also in the
form of the
official date stamp of the military police. Brigadier General (Dr)
Mdutywa would also, no doubt, have verified that
his affidavit was
completed correctly before transmitting it to Mr Thusini for filing.
The Monday, 9 August 2021, was a public
holiday. The affidavits were
subsequently filed with the court as the official affidavits in
support of the application for a postponement
of the hearing on 10
August 2021.
[263]
The
significance of this sequence lies not so much in Brigadier General
(Dr) Mdutywa confirming the ‘affidavit’ of Mr
Thusini
when it was still only in draft form, but in him confirming the
correctness of his medical report/letter which would form
an annexure
to the affidavit of Mr Thusini which was yet to be signed, on 8
August 2021, for it to be filed in court. The only
inference is that
the intention, at that point, was that the letter of 8 August 2021
would form part of the application for a postponement,
pursuant to
the terms of my directive, which would mean that it would become
public when filed.
[133]
That
would be inconsistent with the protestations that the letter was a
confidential document, of which the confidentiality, if
it in fact
was confidential in the first place, was not waived.
[264]   The
letter had furthermore been disclosed to Mr Downer, Ms Naicker and
the DPP of KZN, without any specific
restrictions as regards
confidentiality, by the Head of the Correctional Centre at Estcourt
on 8 August 2021. The letter did not
contain anything significantly
confidential. On Mr Zuma’s version, it was similar to a report
previously produced before
Judge D Pillay, which had been found to be
lacking in particularity, and had culminated in a warrant for Mr
Zuma’s arrest
being authorised by her. The circumstances
relating to that event were obviously not dealt with as the
allegation was only made
in reply. Presumably, if the warrant was
authorised unlawfully or improperly by Judge Pillay, being based on
confidential information,
then proceedings would have been launched
to have it set aside. I could find no such application in the court
file.
[265]   The
letter of Brigadier General (Dr) Mdutywa is vague and general in its
terms and does not disclose any
particularity, which could be said to
amount to a violation of Mr Zuma’s rights his rights to
privacy. Specifically, it does
not mention the medical condition Mr
Zuma suffers from. Mr Mpofu however submitted that it was
unacceptable, in the spirit of uBuntu,
for Mr Zuma’s relatives
to hear from press reports, and not from Mr Zuma personally, that he
was suffering from a life threatening
illness. The letter presumably
would not record a diagnosis which the doctors had not shared with Mr
Zuma previously, and which
he could have shared with his family even
before the letter was issued to the Department of Correctional
Services. The doctors
would not convey information regarding Mr
Zuma’s medical condition to the Department of Correctional
Services without his
authority, and, at least them having advised him
of the details of his state of health, which were then recorded in
the letter.
[266]
Finally,
the right to privacy, like most fundamental rights, except the right
to life, is not an absolute right and is subject to
limitations,
having regard to what is reasonable and justifiable in an open and
democratic society, based on human dignity, equality
and
freedom.
[134]
Competing
rights and interests must also be considered. In the present enquiry,
it is not only Mr Zuma’s right to privacy
that is at stake. As
has been remarked earlier in this judgment, the constitutional court
has held that fairness is not a one-way
street. There are also the
rights of members of the public, the proper administration of justice
and the interests of justice generally,
which must be considered in a
prosecution where the medical condition of the accused is made an
issue. These are all considerations,
which a court will still have to
consider once fully ventilated and after all medical reports relating
to Mr Zuma’s treatment,
medical parole, and the like, have been
produced, should the medical condition of Mr Zuma be or remain a
material issue for determination
in further legal proceedings. I am
not persuaded that the disclosure of the contents of the letter
constituted an actionable violation
of Mr Zuma’s rights.
[267]
In
the alternative, if it did, then Mr Zuma would have remedies he might
pursue. In the context of the prosecution and Mr Downer’s
title
to prosecute, it might, at best, amount to an irregularity. It bears
repeating, as held in
Shaik
and Others v NDPP,
[135]
that
while some irregularities may result in a failure of justice and an
unfair trial, not every irregularity has that effect. The
question is
therefore, even assuming that it amounted to an irregularity, whether
it was of the kind to render the trial unfair.
I
am not persuaded, on the evidence that has been placed before me,
that it has affected the merits of the prosecution, and that
Mr
Downer has therefore been deprived of the title to prosecute and/or
that he should be removed as a prosecutor. The merits of
the
prosecution stand apart from the events concerning Mr Zuma’s
medical condition.
[268]
The
request for a referral pursuant to s 41(6) of the NPA Act has been
dealt with earlier.
[136]
That brings me to the final ground relied upon.
The
unlawful attempted physical examination of Mr Zuma.
[269]   The
allegations by Mr Zuma in this regard proceed from an interpretation
of the order granted by me on 10
August 2021. It relies particularly
on some of the exchanges between counsel and myself in court before
the order was granted and
alleges that Mr Zuma was visited in breach
thereof.
[270]   The
order envisaged that the medical report would be produced on 20
August 2021. Following the grant of that
order Mr Thusini wrote to Mr
Downer stating that should that be impossible, communication to the
NPA would be made; that following
consultations on 19 August 2021 and
‘
unforeseen major
developments pertaining to Mr Zuma’s health, as well as a
recent procedure performed on him publicly announced
by the
Department of Correctional Services, it might not be possible to
deliver the report within the scheduled period, and that
if
necessary, these delays will be explained in greater detail to the
court during oral evidence.’
The
letter concluded that the ‘current indication’ is that
the report will be ready on or before 27 August 2021.
[271]   Mr
Downer responded on behalf of the State stating that the State did
not accept the failure to comply with
paragraph 2 of the court order,
nor the reasons provided therefor, that the State would continue to
do all it can to ensure that
the matter was ripe for hearing on 9 and
10 September 2021, and that the State reserved all its rights.
[272]   Mr
Downer enclosed a letter addressed to the Acting Regional
Commissioner: Department of Correctional Services
dated 21 August
2021, which official had requested a written application from the
State providing particulars of the name and experience
of the doctor
who the State required to examine Mr Zuma to determine his fitness to
attend court and to stand trial, to grant access
to Mr Zuma for an
examination. Mr Downer also enquired when such examination might be
convenient, and requested access to Mr Zuma’s
medical records,
and other related issues. The letter was copied to Mr Thusini, and
the Office of the General Officer Commanding
Military Health
Formation, Department of Defence.
[273]   Mr
Thusini replied that:
‘
it was agreed in
court that it would be the medical report which would trigger either
agreement or disagreement on the part of the
NPA. Only thereafter,
depending on which option the NPA chose, would the contingent “right”
to appoint its own doctor’
(arise)’
He
accordingly complained that Mr Downer’s conduct flies in the
face of this sequence and was to:
‘
prematurely insist
on a physical examination of the former President, by an unknown
stranger and without his consent or even the
consent of the state
assigned treating doctors and while they are busy compiling the
report, as ordered by the court. Such conduct
is plainly unlawful,
unjustified and irrational in the circumstances.’
[274]   Mr
Downer’s letter in response, dated 24 August 2021, disputed the
above interpretation of the order,
pointed out that the order was not
qualified in the manner suggested, that the purpose of the medical
examination was for the State
to obtain the opinion of a medical
practitioner appointed by it as to whether Mr Zuma was fit to attend
court to stand trial, but
ended by saying, ‘the State will not
proceed with the examination of your client against the will of your
client or his doctors
. . .’
[275]   In
the founding supplementary evidence affidavit, Mr Thusini referred to
Mr Downer’s response as ‘his
misleading and self-serving
interpretation of the order’. It continued that:
‘
Instead of
offering an apology for misreading and misinterpreting the order of
Koen J he sent a private doctor accompanied by his
police
investigator, a Colonel Du Plooy, to physically arrive at a private
hospital to conduct an illegal medical examination of
Mr Zuma. He did
so without any legal basis. He did so to purely humiliate Mr Zuma
who, had he not voiced his objection, might have
been subjected to an
unauthorized and unlawful medical examination. Notably, no
notification to or arrangement with Mr Zuma’s
legal team was
done by Mr Downer.
In breach of the order of
the court, Mr Downer plainly violated Mr Zuma’s rights. The
more detailed envisaged medical report
had not yet been issued by the
treating medical team. The employment of a private doctor on behalf
of the NPA to examine the medical
records of Mr Zuma was in itself
therefore an anomaly because it created the impression that Mr Zuma’s
doctors and/or Mr
Zuma had conspired to manufacture medical
conclusions that must only be believed if the NPA’s own private
doctors prematurely
examined him without seeking his consent. Sending
to Mr Zuma’s hospital a Professor Sarkin to conduct a physical
examination
without any basis, which would possibly have included
taking his blood samples and other vital statistics, was the most
irresponsible
violation of Mr Zuma’s rights. It is a complete
disregard of Mr Zuma’s constitutional rights and demonstrates a
loss
by the NPA prosecutors of their constitutional conscience.’
[276]   The
contentions that Mr Downer had misconstrued the court order, and that
‘the report would trigger
the examination’, were
persisted with in oral argument before me by Mr Mpofu. He described
it as resulting in a situation
where, before the report became
available, ‘the vultures of the NPA were already circling’.
[277]   In
answer to the allegations by Mr Thusini in the founding supplementary
evidence affidavit, Mr Downer disputed
Mr Thusini’s
interpretation of the court order and continued:
‘
I deny sending a
private doctor and Col Du Plooy to the hospital where the first
accused was a patient for the doctor to conduct
an examination of
him. As Col Du Plooy will confirm, he has never gone to the hospital
in question for that purpose or any other
related to the present
matter. As Prof Sarkin will confirm, he has never gone to the
hospital in question for that purpose. I note
that Mr Thusini does
not say that he was present during this alleged incident, nor is
there any affidavit by the first accused
or anyone else who confirms
his (Mr Thusini’s) affidavit. I accordingly submit the contents
of these paragraphs is inadmissible
hearsay.’
The
contents of the answering affidavit of Mr Downer are confirmed in
separate confirmatory affidavits by Colonel Johan Du Plooy
and
Professor Ian Andrew Sarkin.
[278]   The
allegations that the medical doctor appointed by the State and
Colonel du Plooy went to the private hospital
to examine Mr Zuma were
not confirmed by any confirmatory affidavit from Mr Zuma. They are
hearsay and inadmissible. The State’s
version is furthermore
corroborated by the contemporaneous correspondence exchanged at that
time, the authenticity of which has
not been challenged. Mr Downer’s
letter had recorded that notwithstanding the terms of the court order
granted on 10 August
2021, Mr Zuma would not be examined by the State
against his will.
[279]   In
his replying affidavit Mr Thusini did not dispute the denials by Mr
Downer, confirmed by Colonel du Plooy
and Professor Sarkin under
oath, that the latter two men had physically arrived at the private
hospital where Mr Zuma had been
admitted to conduct a medical
examination. I would have expected that if their denial was disputed
that, at least, an affidavit
would be filed by Mr Zuma, or someone
who would confirm such attendance. There was none. In argument, Mr
Mpofu conceded that no
examination of Mr Zuma had taken place and
that the defence accepted the NPA’s denial that Prof Sarkin and
Col du Plooy had
arrived at the hospital where Mr Zuma was treated.
Mr Zuma was not examined by medical specialists appointed by the
State at all,
consistent with the letter from Mr Downer. What one is
left with are hearsay allegations that are untrue, but were used to
launch
an unjustified attack on Mr Downer.
[280]   The
only contention thus remaining was that a request had been made by Mr
Downer, representing the State,
for a convenient time to be indicated
when the State’s medical expert(s) could examine Mr Zuma, at a
time when the report
of the doctors representing Mr Zuma had not yet
been produced. Even if the interpretation of my order contended for
by Mr Zuma
was correct, such a premature request would not be grounds
for the removal of Mr Downer. When the request was refused, the
examination
was not proceeded with. It is a non-issue.
[281]
When
it comes to the interpretation of a court order, it is trite law that
a court order must be interpreted on the ordinary meaning
of the
words used, and in the context they were expressed.
[137]
My order provided that the report had to be provided by 20 August
2021. It is correct that the defence had indicated that it could
not
bind itself to that date, but I would have thought that Brigadier
General (Dr) Mdutywa would have had sufficient time to provide
a more
detailed report timeously explaining the vague statements contained
in his report of 8 August 2021. The vagueness of the
latter is common
cause. As Mr Mpofu rightly remarked at the time the adjournment was
sought on 10 August 2021, not only was the
State ‘in the dark’,
but so also the defence, and I might add, this court, as to what Mr
Zuma’s medical condition
was. Brigadier General (Dr) Mdutywa,
or any other defence force doctors, did not have to undertake time
consuming and detailed
further examinations. He simply had to explain
his reasons for expressing the terse and vague conclusions in his
letter of 8 August
2021 in more detail. Granted that Mr Zuma required
some surgical procedure in the interim, but that could simply have
been referred
to with a brief explanation of any
sequelae
(consequences). It seems however that the time was spent to prepare a
report, which to this day, I have not seen.
[282]   How
matters might pan out practically in the future, when the letter of
Brigadier General (Dr) Mdutywa featured
in support of the application
for the postponement on 10 August 2021, was canvassed during the
exchange with counsel before the
order of the 10 August 2021 was
granted by consent. Various permutations were considered. Plainly, as
a first observation, it was
anticipated that the more detailed report
would be available on or before 20 August 2021, and not a week later.
Time was of the
essence for the State to decide whether to accept the
conclusions reached in such report, or not. If the report concluded
that
Mr Zuma could attend court and stand trial, then a further
separate independent examination by the State’s specialists
might
not have been required. But because the doctors,
notwithstanding it previously having been checked with them by Mr
Mpofu that the
report would be ready by 20 August 2021 or shortly
thereafter, would only have their report available a week later
(although no
explanation on oath has ever been offered why it could
not have been ready before), the State would be left with very
little, and
possibly insufficient time, to conduct its own
examination and inquiries. It might want to determine for itself
whether it should
agree with the report, even if favourable to it.
[283]   In
any event further, Mr Zuma was required in terms of s 37 of the CPA
to submit to such an examination,
and the order of this court that he
should do so, was not qualified as regards when he would be required
to submit thereto. Specifically,
the order was not qualified that he
would only have to do so after a report was filed and/or if it was
favourable to him.
[284]   The
trial is now to proceed on its merits. I shall give Mr Zuma the
benefit of any doubt that he subjectively
might have believed, or
possibly was advised, that he was not required to submit to a medical
examination before the medical report
was made available. I want to
clarify however that there are no conditions attached to the order
that he submit to medical examination
by a doctor or doctors of the
State’s choice, to determine whether he is fit to attend court
and stand trial. Should Mr Zuma’s
medical condition arise as a
relevant issue in this trial in the future, whether in support of an
application for an adjournment
or in deciding whether he is fit to
attend court and stand trial, then he is required to submit to such
medical examination by
doctors of the State’s choice and to
produce all relevant records and reports pertaining to his medical
condition within
a reasonable time. That was what the order intended
to achieve.
[285]   The
complaint raised under this last heading is not a ground for
depriving Mr Downer of his title to prosecute
or to remove him as
prosecutor. It is perhaps best dismissed as having been based on a
possible misunderstanding.
Conclusion
[286]   The
allegations of bias against Mr Downer were based largely on the fact
that he has allegedly not been independent
and objective. On a proper
interpretation of s 106(1)(
h
) of the CPA, that does not
deprive Mr Downer of the title to prosecute. In the alternative, and
adopting a wider interpretation
of the words ‘title to
prosecute’, I am still not persuaded that Mr Downer lacks the
title to prosecute or should be
removed as prosecutor. On the
evidence before me it has not been shown that Mr Zuma’s rights
to a constitutionally fair trial
have been impaired, or that there is
a real possibility that his rights will be impaired.
Order
[287]   The
following order is granted:
1.
The special plea is dismissed.
2.
The matter is directed to proceed to trial in
respect of the not guilty pleas of Mr Zuma and Thales.
3.
Paragraph 3 of the court order of 10 August 2021, as now clarified in
paragraph 284 above, stands.
KOEN
J
26
October 2021
APPEARANCES
For
the State:
Mr
W Trengove SC
Mr
Breitenbach SC
Mr
Du Plooy
Mr
K Singh
Instructed
by:
The
Director of Public Prosecutions
Pietermaritzburg
For
the first accused:
Mr
D Mpofu SC
Mr
T Masuku SC
Mr
Buthelezi
Mr
Xulu
Instructed
by:
B.M.
Thusini Inc
Vryheid
c/o
Pranesh Indrajith Attorneys
Pietermarirtzburg
For
the second accused:
Mr
B Roux SC
Ms
S Jackson
Instructed
by:
Herbert
Smith Freehills
Johannesburg
[1]
The criminal trial commenced on 17 May 2021. The former legal
representatives of Mr Zuma, Mabuza Attorneys, formally requested

leave to withdraw as his legal representatives. Mr Masuku SC, with
him Mr Buthelezi and Mr Xulu instructed by B.M. Thusini Incorporated

appeared as Mr Zuma’s new legal representatives. They placed
on record that Mr Zuma was ready to proceed with the trial.
In the
light of that recordal, the withdrawal of Mabuza Attorneys would not
cause a hiatus and hence any interruption in the
trial proceedings
that could prejudice either Mr Zuma, or Thales, or the prosecution.
Leave to withdraw as Mr Zuma’s attorneys
was accordingly
granted to Mabuza Attorneys. The trial thereafter commenced with the
State being represented by Mr Downer SC,
Mr Du Plooy and Mr Singh,
Mr Zuma being represented as aforesaid, and Thales being represented
by Mr Roux SC and Ms Jackson.
[2]
Para 1 of the plea explanation in terms of section 106(1)
(h)
and 106(4) of the Criminal Procedure Act 51 of 1977 (CPA). The
request that Mr Downer SC should be ‘removed as a prosecutor

in this case’ is repeated also elsewhere in para 1, and in
para 4 of the special plea.
[3]
The notice bears the Registrar’s stamp dated 20 May 2021.
[4]
The pleas entered have been referred to in paragraph 1 above.
[5]
Which became exhibit D. It is in identical terms to the notice filed
previously and signed by Mr Zuma and all his counsel.
[6]
Being 2 June 2021.
[7]
Being 9 June 2021.
[8]
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma and others
[2021] ZACC 18
,
2021 (5) SA 327
(CC),
2021 (9) BCLR 992
(CC).
[9]
Zuma v
Minister of Police and others
[2021] ZAKZPHC 40, [2021] 3 All SA 967 (KZP).
[10]
Section 173 provides for the inherent power of the superior courts,
as follows: ‘The Constitutional Court, the Supreme
Court of
Appeal and the High Court of South Africa each has the inherent
power to protect and regulate their own process, and
to develop the
common law, taking into account the interests of justice.'
[11]
S v
Moussa
[2021] ZAGPJHC 61 para 20. Significantly, it was found that although
the prosecutrix abused her position as prosecutrix, it could
not be
found that the institution or continuation of the prosecution would
constitute an abuse of the court processes, that the
accused had not
shown that the prosecution was conducted for an ulterior motive or
was vexatious or frivolous or designed to
oppress the accused, and
most importantly, did not affect the title to prosecute.
[12]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A).
[13]
In the supplementary evidence affidavit filed on 7 September 2021 Mr
Zuma complained of ‘prosecutorial misconduct on the
part of Mr
Downer and/or the NPA’, alleging specifically that ‘Mr
Downer, aided and abetted or enabled by the NPA,
has engaged or is
suspected to have engaged in two specific acts of misconduct’,
which are allegedly ‘inconsistent
or inimical to the title or
authority to prosecute as that term is intended to mean in section
106(1)(h)of the CPA’, which
‘demonstrates a continuous
pattern deliberately designed to mire Mr Zuma’s prosecution in
prejudicial media and public
controversy with the effect that Mr
Zuma is treated as if he is guilty of the crimes without leading any
evidence’, namely,
the ‘recent deliberate leaking of the
medical report of Mr Zuma’s medical situation to the media,
coupled with the
NPA’s stance on that medical report.’
[14]
National
Director of Public Prosecutions v Zuma
(Mbeki
and another intervening)
[2009] ZASCA 1
,
2009 (2) SA 277
(SCA),
[2009] 2 All SA 243
(SCA).
[15]
National
Director of Public Prosecutions v Zuma
(Mbeki
and another intervening)
[2009] ZASCA 1
,
2009 (2) SA 277
(SCA),
[2009] 2 All SA 243
(SCA)
para 15.
[16]
Ndluli
v Wilken NO en Andere
[1990] ZASCA 107
;
1991 (1) SA 297
(A)
.
[17]
Ndluli
v Wilken NO en Andere
[1990] ZASCA 107
;
1991 (1) SA 297
(A) at 305H-306C. It was said that: ‘In die
algemene spreektaal sowel as in die uitsprake van ons howe word 'n
verwysing
na “die aanklaer” of “the prosecutor”
by strafsake gesien as 'n verwysing na die persoon wat in die hof

optree, en nie as 'n verwysing na die Staat nie. In die Wet vind ons
in art 4 'n verwysing na 'n “Staatsaanklaer”
wat in 'n
laer hof deur die Prokureur-generaal aangestel kan word om as sy
verteenwoordiger vervolgings ten behoewe van die Staat
waar te neem,
maar daarna vind ons feitlik deurgaans verwysings slegs na 'die
aanklaer' (sien bv arts 54(1), 62, 63(1), 75(2),
85(1), 112(1) en
(3), 113, 119, 122(3), 128, 130, 166(1) en (2) en nog talle ander).
Om nader by die artikel onder bespreking
te kom vind ons in art 105
die bepaling dat:
“
105. Voordat die
verhoor van 'n beskuldigde 'n aanvang neem, word die aanklag deur
die aanklaer aan hom gestel en word hy...deur
die hof aangesê
om onverwyld ooreenkomstig art 106 daarop te pleit.”
Die
verwysing na 'die aanklaer' in hierdie artikel is klaarblyklik na
die persoon wat in die hof optree om die saak teen die beskuldigde

te voer. Onmiddellik daarna volg art 106 wat bepaal dat:
“
106(1) Wanneer 'n
beskuldigde op 'n aanklag pleit, kan hy pleit -
...
(h)
dat die
aanklaer nie bevoeg is om te vervolg nie.”
Daar
skyn vir my, onder hierdie omstandighede, geen rede om in art 106 'n
ander betekenis aan die woord “aanklaer”
te heg as die
betekenis wat dit in art 105 en in al die ander artikels in die Wet
waarna ek verwys het, dra nie. (
Principal Immigration Officer v
Hawabu and Another
1936 AD 26
and
Minister of the Interior v
Machadodorp Investments (Pty) Ltd and Another
1957 (2) SA 395
(A) op 404D - E.) Na my mening dus verwys die word “die
aanklaer” in art 106(1)(h) by 'n vervolging van Staatsweë

nie na die Staat nie, maar na die persoon wat in die hof as aanklaer
optree. Die beswaar wat so 'n pleit inhou is 'n beswaar
teen die reg
of die bevoegdheid van daardie persoon om as aanklaer in die saak op
te tree.’
[18]
Ndluli
v Wilken NO en Andere
[1990] ZASCA 107
;
1991 (1) SA 297
(A) at 306C-D and F-H.
[19]
Judicial decisions are a source of law. Hahlo and Kahn
South
Africa The Development of its Law and Constitution
page 29ff. Every South African court ‘is absolutely bound by
the decisions of courts superior to it. Thus a single judge
must
follow a decision of a full bench (court of three or more judges) or
two judge court of its own division . . . and a decision
of the
Appellate Division ...’
[20]
S v
Zuma and another, Thales South Africa (Pty) Limited v KwaZulu-Natal
Director of Public Prosecutions and others
[2019] ZAKZDHC 19,
2020 (2) BCLR 153
(KZD). An application for leave
to appeal that judgment was dismissed. The petition to the Supreme
Court of Appeal against the
refusal of leave to appeal was also
dismissed. I am advised that an application to the CC was brought
but not persisted with.
The judgment of the full court accordingly
stands. It has been suggested in the heads of argument that there is
no legal provision
for a full court to have been constituted to hear
the permanent stay application and that the Judge President of this
division
had acted irregularly in constituting such a court:
accordingly that the judgment is a nullity. An objection to the
constitution
of the full court was raised in the application for
leave to appeal, but was not persisted with, for reasons unknown. It
could
also thereafter have been pursued as a ground for appealing
the judgment of the full court, in a petition to the SCA. A petition

to the SCA was pursued, but dismissed. It is not for me to second
guess the reasoning of the full court. Indeed, I am bound by
its
decisions in accordance with our system of
stare
decisis
,
even if I believe it might be wrong. A further alternative argument
that has been raised is that the judgment of the full court
is a
judgment in a civil case, not a criminal case, and hence that issue
estoppel would not apply to findings of the full court
in the
present criminal trial. As a further alternative it is also argued
that even if issue estoppel could arise, it could not
be applied
against an accused, but only the State. These additional arguments
will be answered below when dealing with issue
estoppel. The court
hearing the stay application was constituted as it was because of
the complexity of the matter and the seriousness
thereof. In my view
it clearly decided an issue in a criminal matter, relevant to this
criminal trial.
[21]
Zuma v
Democratic Alliance and others; Acting National Director of Public
Prosecutions and another v Democratic Alliance and another
[2017] ZASCA 146
,
2018 (1) SA 200
(SCA),
[2017] 4 All SA 726
(SCA),
para 17.
[22]
Act
121 of 1998.
S 2(4), read with sections 1 and 2 of the Prevention of Organised
Crime Act 121 of 1998 (POCA) provides that:
‘
A person shall
only be charged with committing an offence contemplated in
subsection (1) if a prosecution is authorized in writing
by the
National Director.’
The
offences in subsection (1) include racketeering.
[23]
Minister
of Police v Khoeli
(241/2020)
[2021] ZASCA 146
(18 October 2021) relying on
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[201] ZASCA 13;
[2012} 2 All SA 262
(SCA);
2012 (4) SA 593
(SCA)
para 18.
[24]
Section 7(1)
(a)
of the CPA.
[25]
Section 7(1)
(b)
of the CPA.
[26]
Section 7(1)
(c)
of the CPA.
[27]
Section 7(1)
(d)
of the CPA.
[28]
A Kruger
Hiemstra’s
Criminal Procedure
(May 2021 – Service Issue 14) at 15-20.
[29]
Philips
v Botha
1995
(2) SACR 228
(W) and on appeal
,
Philips v Botha
[1998] ZASCA 105
;
1999 (2) SA 555
(SCA), although the SCA did not refer to s 106(1)(h)
but also considered an abuse of process.
[30]
Williams
and another v Janse van Rensburg and others (2)
1989
(4) SA 680
(C) 682. In that matter the defence applied for a
dismissal of the case on the ground that the two prosecutors were
prosecuting
in the same charges or counts when it was clear that
only one of them had been injured in respect of each count. This was
held
to be a point which falls within the contemplation of s
106(1)(
h
).
[31]
Gouriet
v Union of Post Office Workers
[1977] UKHL 5
;
[1978] AC 435
(HL) 477;
[1977] 3 All ER 70
referred
to in
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015 (1) SACR 533
(SCA),
[2015] 1 All SA 169
(SCA)
para 16. That right was described by Lord Wilberforce as a ‘valuable
constitutional safeguard.’
[32]
Williams
and another v Janse van Rensburg and others (3)
1989 (4) SA 884 (C).
[33]
Section 8(1) of the CPA.
[34]
R (on
the application of Haase) v Independent Adjudicator
[2008] EWCA Civ 1089
para 24 also referred to in
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015 (1) SACR 533
(SCA),
[2015] 1 All SA 169
(SCA)
para 16.
[35]
A Kruger
Hiemstra’s
Criminal Procedure
(May 2021 – Service Issue 14) at 15-20.
[36]
A Kruger
Hiemstra’s
Criminal Procedure
(May 2021 – Service Issue 14) at 15-20.
[37]
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015 (1) SACR 533
(SCA),
[2015] 1 All SA 169
(SCA).
[38]
Delport
and others v S
[2014] ZASCA 197, 2015 (1) SACR 620 (SCA), [2015] 1 All SA 286
(SCA).
[39]
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168, 2015 (1) SACR 533 (SCA), [2015] 1 All SA 169
(SCA).
[40]
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015 (1) SACR 533
(SCA),
[2015] 1 All SA 169
(SCA)
para 6. A second question of law was also reserved, namely whether
the test was correctly applied by the trial court. Counsel
for the
NPA, however, conceded this was not a question of law, but one on
the facts, and the SCA observed that in any event,
in view of the
fact that a wrong test was applied by the trial court, this second
question did not arise.
[41]
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015 (1) SACR 533
(SCA),
[2015] 1 All SA 169
(SCA)
para 8.
[42]
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015 (1) SACR 533
(SCA),
[2015] 1 All SA 169
(SCA)
para 13.
[43]
S
v Van Der Westhuizen
[2011] ZASCA 36
;
2011 (2) SACR 26
(SCA) para 11.
[44]
President
of the Republic of South Africa and others v South African Rugby
Football Union and others
[1999]
ZACC 9
,
1999 (4) SA 147
(CC),
1999 (7) BCLR 725
(CC)
para 48;
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015 (1) SACR 533
(SCA),
[2015] 1 All SA 169
(SCA)
para 11.
[45]
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168, 2015 (1) SACR 533 (SCA), [2015] 1 All SA 169
(SCA).
[46]
Smyth v
Ushewokunze and another
1998 (3) SA 1125
(ZS) at 1132A-1134B.
[47]
Smyth v
Ushewokunze and another
1998 (3) SA 1125
(ZS) at 1134B-C.
[48]
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015 (1) SACR 533
(SCA),
[2015] 1 All SA 169
(SCA)
para 14. See
S
v Shaik
[2007]
ZACC 19
,
2008 (2) SA 208
(CC) para 43.
[49]
S v
Shaik
[2007] ZACC 19
;
2008 (2) SA 208
(CC) para 43.
[50]
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015 (1) SACR 533
(SCA),
[2015] 1 All SA 169
(SCA)
para 18 quoting with approval from
Director
of Public Prosecutions, Western Cape v Killian
2008
(1) SACR 247
(SCA) para 28;
R
v Sole
2001 (12) BCLR 1305
at 13332F-H.
[51]
In the permanent stay judgment, an order was sought on the basis
that Mr Zuma would be denied a constitutionally fair trial,
on the
basis of inter alia alleged political interference.
[52]
S v
Zuma and another, Thales South Africa (Pty) Limited v KwaZulu-Natal
Director of Public Prosecutions and others
[2019] ZAKZDHC 19, 2020 (2) BCLR 153 (KZD).
[53]
Bonugli
and another v Deputy National Director of Public Prosecutions and
others
2010 (2) SACR 134 (T).
[54]
The
SCA in
Delport
and others v S
[2014] ZASCA 197
,
2015 (1) SACR 620
(SCA),
[2015] 1 All SA 286
(SCA)
para 38 remarked that ‘[a]ppellant six, has now withdrawn his
appeal to this court in light of its recent ruling in
Porrit
v NDPP
which implicitly overrules the high court’s ruling in
Bonugli
and removes any legal basis for challenging the prosecutors’
title on the ground of perceived bias because of their association

with SARS.’
[55]
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015 (1) SACR 533
(SCA),
[2015] 1 All SA 169
(SCA)
para 14.
[56]
Delport
and others v S
[2014] ZASCA 197
,
2015 (1) SACR 620
(SCA),
[2015] 1 All SA 286
(SCA)
para 35.
[57]
Cf
Williams and another v Janse van Rensburg and others (2)
1989 (4) SA 680
(C) at 683D-684B.
[58]
Moussa
v The State and another
2015 (2) SACR 537 (SCA), [2015] 2 All SA 565 (SCA)
[59]
Moussa
v The State and another
2015 (2) SACR 537
(SCA),
[2015] 2 All SA 565
(SCA) para 29.
[60]
Director
of Public Prosecutions, Western Cape v Killian
2008
(1) SACR 247
(SCA) para 28.
[61]
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015 (1) SACR 533
(SCA),
[2015] 1 All SA 169
(SCA)
paras 7 – 8.
[62]
Section 32(1)
(a)
of the NPA Act provides:
‘
A member of
the
prosecuting authority
shall serve impartially and exercise,
carry out or perform his or her powers, duties and functions in good
faith and without
fear, favour or prejudice and subject only to the
Constitution and the law.’ (emphasis in the original)
[63]
Section 32(2)
(a)
of the NPA Act provides:
‘
A
National
Director
and any person referred to in section 4 must, before
commencing to exercise, carry out or perform his or her powers,
duties or
functions in terms of this Act, take an oath or make an
affirmation, which shall be subscribed by him or her, in the form
set
out below, namely—
“
I
(full name)
do hereby swear/solemnly
affirm that I will in my capacity as
National Director
/
Deputy
National Director of Public Prosecutions
/
Director
/
Deputy
Director of Public Prosecutions
/
prosecutor
, uphold and
protect the Constitution and the fundamental rights entrenched
therein and enforce the Law of the
Republic
without fear,
favour or prejudice and, as the circumstances of any particular case
may require, in accordance with the Constitution
and the Law. (In
the case of an oath: So help me God.)”.’ (emphasis in
the original)
[64]
In
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015
(1)
SACR 533
(SCA),
[2015] 1 All SA 169
(SCA) the SCA observed that:
‘
It
was not necessary for the appellants to place reliance on s
106(1)
(h)
for their application for the removal of the
prosecutors on the basis that they were biased. The appellants did
not have to tender
a plea in order to place that objection before
the court. Indeed, counsel for the appellants advised from the Bar
that the application
for the removal of the prosecutors on the
ground of an apprehension of bias was separate from the s 106(1)
(h)
plea. But the two issues were argued together by agreement between
the two sets of counsel. I conclude that the removal of the

prosecutors was not grounded on a lack of title in terms of s
106(1)
(h)
of the CPA.’
[65]
Just as with the accused in
Delport
and others v S
[2014] ZASCA 197
,
2015 (1) SACR 620
(SCA),
[2015] 1 All SA 286
(SCA),
see specifically
para
36.
[66]
Pursuant to s 342A of the CPA.
[67]
S v
Zuma and another, Thales South Africa (Pty) Limited v KwaZulu-Natal
Director of Public Prosecutions and others
[2019] ZAKZDHC 19, 2020 (2) BCLR 153 (KZD).
[68]
S v
Mhlungu and others
1995 ZACC 4
;
1995 (3) SA 867
(CC) para 59 at 895D-E.
[69]
S v
Zuma and another, Thales South Africa (Pty) Limited v KwaZulu-Natal
Director of Public Prosecutions and others
[2019] ZAKZDHC 19, 2020 (2) BCLR 153 (KZD).
[70]
The Pre-Trial directive of the Judge President requires inter-alia
that:
‘
5(d)   Counsel
for the prosecution and the defence need, in good time, to consult,
request and obtain further particulars
to the charges and generally
ensure that there are ready and fully instructed at the commencement
of the pre-trial hearing where
broadly the topics foreshadowed in
the (enclosed) draft pro forma pre—trial agenda/minute will be
addressed.
6.       TRIAL
READY CERTIFICATION:
Save in exceptional
cases authorised by the Judge President or his delegate, trial
readiness certification will be a prerequisite
for enrolment for
criminal trials in the High Court.’
The
pro forma minute alluded to includes the following:
‘
2.
PRELIMINARY
ISSUES
:
2.1     Does
either the State or the defence intend, before the commencement of
the trial, raising any
issues
in limine
, including matters
pertaining to legal representation, further particulars, any
referral for observation in terms of sections
77 or 78 of the
Criminal Procedure Act 51 of 1977 (CPA), or any other legal
questions or procedural issues?
8.
ADDITIONAL
ISSUES
:
8.1     Are
there other relevant issues, not dealt with above, which may affect
the duration of the trial
proceedings which need to be noted,
discussed or considered?
Yes/No
8.2     If
so, then what is the nature of the contemplated issue (s)?’
10
ORDER
MADE:
It is ordered that:
10.1
The matter is certified ready for trial; and
10.1.1   The
estimated duration of the trial is ____days.’
[71]
These directives inter-alia provide:
4.
PRE-TRIAL
CONFERENCES AND CERTIFICATION OF CASES AS TRIAL READY
The following directives
apply to all criminal cases.
4.1     Before
enrolling a criminal matter for trial the case must be certified by
judicial officer as
trial ready.
…
4.5   At the
pre-trial conference the issues enumerated below, but not limited
thereto, are to be considered and addressed,
where relevant:
(a)    .
. .
(ii)      Whether
the accused/defence is ready to proceed to trial?
(xvii)  The
estimated duration of the trial and proposed trial dates.
4.8
Any
in limine
and all preliminary issues, including legal
representation, should be resolved before the matter is set down for
trial.
4.9
Where a matter has been set down for trial and an issue arises which
may prevent the trial
proceeding this should be brought to the
attention of the presiding officer and other parties as soon as
possible.’
[72]
[2008] ZACC 13
,
2009 (1) SA 1
(CC),
2008 (12) BCLR 1197
(CC) para
65.
[73]
S v
Shaik
[2007] ZACC 19
;
2008 (2) SA 208
(CC) para 43.
[74]
In
Delport
and others v S
[2014] ZASCA 197
,
2015 (1) SACR 620
(SCA),
[2015] 1 All SA 286
(SCA)
the SCA held in regard to s 106(4) that it did not think that it
could be invoked in the circumstances of that case ‘[f]or
if
this were the case, it would cause immense prejudice to the
prosecution and allow an unscrupulous accused to use it for purposes

other than those for which it was intended.' (see para 34) That
observation was obiter as the court had not found that the

prosecutors lacked title to prosecute but had proceeded on the basis
that:
‘
Properly
understood the dispute in this case, however, is not over the
prosecutors’ standing to prosecute but about whether
they were
properly appointed and authorised to prosecute. And even if I accept
for present purposes that s 106(1)
(h)
may be invoked not only
where the standing of a prosecutor is in issue but also where it is
asserted that the appointment is
irregular, it does not follow that
an accused is entitled to demand an acquittal . . .’ (at para
32 – footnote omitted).
[75]
That is on a separate ‘independent basis’ as an
application for the recusal (removal) of Mr Downer, as was the case

in, for example,
Bonugli
and another v Deputy National Director of Public Prosecutions and
others
2010 (2) SACR 134
(T)
.
[76]
There is no notice of motion claiming such relief.
[77]
National
Director of Public Prosecutions v Zuma
(Mbeki
and another intervening)
[2009] ZASCA 1
,
2009 (2) SA 277
(SCA),
[2009] 2 All SA 243
(SCA)
para 81.
[78]
Compare
Room
Hire Company v Jeppe Street Mansions
1949 (3) SA 1155
(T) at 1162.
[79]
National
Director of Public Prosecutions v Zuma
(Mbeki
and another intervening)
[2009] ZASCA 1
,
2009 (2) SA 277
(SCA),
[2009] 2 All SA 243
(SCA)
para 84 and 85.
[80]
Such
as the spy tapes matter and the full court’s decision on a
permanent stay of prosecution.
[81]
See HR Hahlo and E Kahn
South
Africa: The Development of its Law and Constitution
(1960) footnote 23 above.
[82]
A
special plea that the prosecutor had no title to prosecute was
raised midway through the trial in the court
a
quo
in
Delport,
but
whether that was competent did not arise as an issue for
determination before the SCA. In view of the conclusions reached
in
Porritt,
trial or similar prejudice would not afford grounds for such a plea,
even mid-way during the trial. The enquiry would therefore
generally
only arise at the end of the trial.
[83]
African
Farms and Townships Ltd v Cape Town Municipality
1963
(2) SA 555
(A) at 562A.
[84]
National
Director of Public Prosecutions v Zuma
(Mbeki
and another intervening)
[2009] ZASCA 1, 2009 (2) SA 277 (SCA), [2009] 2 All SA 243 (SCA).
[85]
Zuma v
Democratic Alliance and others; Acting National Director of Public
Prosecutions and another v Democratic Alliance and another
[2017] ZASCA 146, 2018 (1) SA 200 (SCA), [2017] 4 All SA 726 (SCA).
[86]
LTC Harms
Amler’s
Precedents of Pleading
5 ed (1999) at 355.
[87]
See
Liley
and another v Johannesburg Turf Club and another
1983
(4) SA 548
(W);
Horowitz
v Brock and others
1988
(2) SA 160
(A);
Boland
Bank Bpk v Steele
1994
(1) SA 259
(T) and
Kommissaris
van Binnelandse Sake v Absa Bank Bpk
1995
(1) SA 653
(A), being the authorities cited by Harms.
[88]
LTC Harms
Amler’s
Precedents of Pleading
9th ed page 316 to 317..
[89]
Bafokeng
Tribe v Impala Platinum Ltd and others
1999 (3) SA 517
(BH) at 566F-H.
[90]
Kommissaris
van Binnelandse Inkomste v Absa Bank Bpk
1995 (1) SA 653 (SCA).
[91]
Herbstein & van Winsen
The
Civil Practice of the High Courts of South Africa
fifth edition volume 1 page 611 suggest that in
National
Sorghum Breweries v International Liquor Distributors
[2000] ZASCA 159
;
2001
(2) SA 232
SCA the court seems to have rejected the doctrine of
issue estoppel as well as the ‘once and for all’ rule,
but point
out that the reasoning of the majority is not clear and
has even been described in 2001
Annual
Survey of SA Law
767 – 768 as ‘odd’. Friedman JP disagree that the
doctrine of issue estoppel was thus rejected by the SCA stating
that
if the majority intended to do so, then it would have stated that
much expressly.
[92]
Page 560 6E – F.
[93]
See
Smith
v Porritt
2008 (6) SA 303 (SCA).
[94]
Molaudzi
v
S
(CCT
42/15)
[2015] ZACC 20
;
2015 (8) BCLR 904
(CC);
2015 (2) SACR 341
(CC) (25 June 2015).
[95]
[2006] ZACC 15
;
2007 (1) SA 523
(CC);
2007 (2) BCLR 167
(CC) at para
90.
[96]
Paragraphs
24-30.
[97]
Para
30.
[98]
Para
34.
[99]
Para
37.
[100]
Para
38.
[101]
At para 26 to 27.
[102]
Sparks
v Sparks
1998
(4) SA 714
(W) at 723 – 724 per Satchwell J.
[103]
S342A of the CPA.
[104]
Arthur
J.S Hall and Co. v. Simons and Barratt v. Ansell and others v.
Scholfield Roberts and Hill
[2000] UKHL 38; [2000] 3 All ER 673; [2000] 3 WLR 543.
[105]
[2004] 1 SCR 629
(200 SCC 25)
para 72 (quoted in Herbstein & van
Winsen The Civil Practice of the High Courts of South Africa fifth
edition volume 1 page
612).
[106]
2005 (5) 283 (T) at 295.
[107]
It cited the speech of Lord Halsbury LC in
Reichel
v McGrath
(1889)
14 APP CAS 665
which is also
cited
in
Hunter
v Chief Constable of West Midlands
[1981] 3 All ER 727
(HL) at 734.
[108]
Per
National
Director of Public Prosecutions v Zuma
(Mbeki
and another intervening)
[2009] ZASCA 1
,
2009 (2) SA 277
(SCA),
[2009] 2 All SA 243
(SCA)
para 2 and the references cited therein.
[109]
Per Navsa JA in
Zuma
v Democratic Alliance and others; Acting National Director of Public
Prosecutions and another v Democratic Alliance and another
[2017] ZASCA 146
,
2018 (1) SA 200
(SCA),
[2017] 4 All SA 726
(SCA)
para 1.
[110]
S
v Zuma and another, Thales South Africa (Pty) Limited v
KwaZulu-Natal Director of Public Prosecutions and others
[2019] ZAKZDHC 19,
2020 (2) BCLR 153
(KZD) para 131.
[111]
S v
Shaik
[2007]
ZACC 19
,
2008 (2) SA 208
(CC) para 47. See
S
v Zuma and another, Thales South Africa (Pty) Limited v
KwaZulu-Natal Director of Public Prosecutions and others
[2019]
ZAKZDHC 19,
2020 (2) BCLR 153
(KZD) para 133.
[112]
The Constitutional Court in
Economic
Freedom Fighters v Speaker of the National Assembly and others;
Democratic Alliance v Speaker of the National Assembly
and others
[2016] ZACC 11
,
2016 (3) SA 580
(CC),
2016 (5) BCLR 618
(CC)
authoritatively established that the findings and remedial orders of
the public protector are binding unless and until set
aside by a
court of law.
[113]
S v
Shaik and others
2007 (1) SACR 142 (D).
[114]
National
Director of Public Prosecutions v Zuma
(Mbeki
and another intervening)
[2009] ZASCA 1
,
2009 (2) SA 277
(SCA),
[2009] 2 All SA 243
(SCA)
para 43.
[115]
Zuma v
National Director of Public Prosecutions
[2008] ZAKZHC 71, [2009] 1 All SA 54 (N).
[116]
National
Director of Public Prosecutions v Zuma
(Mbeki
and another intervening)
[2009] ZASCA 1
,
2009 (2) SA 277
(SCA),
[2009] 2 All SA 243
(SCA)
para 81 read with para 37.
[117]
National
Director of Public Prosecutions v Zuma
(Mbeki
and another intervening)
[2009] ZASCA 1
,
2009 (2) SA 277
(SCA),
[2009] 2 All SA 243
(SCA)
paras 81 to 82.
[118]
S v
Zuma and another, Thales South Africa (Pty) Limited v KwaZulu-Natal
Director of Public Prosecutions and others
[2019] ZAKZDHC 19,
2020 (2) BCLR 153
(KZD) para 143
[119]
S v
Zuma and another, Thales South Africa (Pty) Limited v KwaZulu-Natal
Director of Public Prosecutions and others
[2019] ZAKZDHC 19,
2020 (2) BCLR 153
(KZD) para 144.
[120]
Democratic
Alliance v Acting National Director of Public Prosecutions and
others
[2016] ZAGPPHC 255, 2016 (2) SACR 1 (GP), 2016 (8) BCLR 1077 (GP).
[121]
Zuma v
Democratic Alliance and others; Acting National Director of Public
Prosecutions and another v Democratic Alliance and another
[2017] ZASCA 146
,
2018 (1) SA 200
(SCA),
[2017] 4 All SA 726
(SCA).
[122]
Zuma v
Democratic Alliance and others; Acting National Director of Public
Prosecutions and another v Democratic Alliance and another
[2017] ZASCA 146
,
2018 (1) SA 200
(SCA),
[2017] 4 All SA 726
(SCA),
paras 59 and 60.
[123]
Zuma v
Democratic Alliance and others; Acting National Director of Public
Prosecutions and another v Democratic Alliance and another
[2017] ZASCA 146
,
2018 (1) SA 200
(SCA),
[2017] 4 All SA 726
(SCA),
para 63.
[124]
Zuma v
Democratic Alliance and others; Acting National Director of Public
Prosecutions and another v Democratic Alliance and another
[2017] ZASCA 146
,
2018 (1) SA 200
(SCA),
[2017] 4 All SA 726
(SCA),
para 79.
[125]
Zuma v
Democratic Alliance and others; Acting National Director of Public
Prosecutions and another v Democratic Alliance and another
[2017] ZASCA 146
,
2018 (1) SA 200
(SCA),
[2017] 4 All SA 726
(SCA),
paras 80 and 84.
[126]
Zuma v
Democratic Alliance and others; Acting National Director of Public
Prosecutions and another v Democratic Alliance and another
[2017] ZASCA 146
,
2018 (1) SA 200
(SCA),
[2017] 4 All SA 726
(SCA),
para 88. See also Harms DP in
National
Director of Public Prosecutions v Zuma
(Mbeki
and another intervening)
[2009] ZASCA 1
,
2009 (2) SA 277
(SCA),
[2009] 2 All SA 243
(SCA)
para 37.
[127]
S v
Zuma and another, Thales South Africa (Pty) Limited v KwaZulu-Natal
Director of Public Prosecutions and others
[2019] ZAKZDHC 19,
2020 (2) BCLR 153
(KZD) para 148, quoting from
National
Director of Public Prosecutions v Zuma
(Mbeki
and another intervening)
[2009] ZASCA 1
,
2009 (2) SA 277
(SCA),
[2009] 2 All SA 243
(SCA)
para 37.
[128]
Zuma v
Democratic Alliance and others; Acting National Director of Public
Prosecutions and another v Democratic Alliance and another
[2017] ZASCA 146
,
2018 (1) SA 200
(SCA),
[2017] 4 All SA 726
(SCA),
para 94(v).
[129]
Thint had been deregistered in the interim. Accordingly, the
prosecution against it fell away.
[130]
See
generally:
National
Director of Public Prosecutions v Zuma
(Mbeki
and another intervening)
[2009] ZASCA 1
,
2009 (2) SA 277
(SCA),
[2009] 2 All SA 243
(SCA) and
Zuma v
Democratic Alliance and others; Acting National Director of Public
Prosecutions and another v Democratic Alliance and another
[2017] ZASCA 146, 2018 (1) SA 200 (SCA), [2017] 4 All SA 726 (SCA).
[131]
See
S
v Zuma and another, Thales South Africa (Pty) Limited v
KwaZulu-Natal Director of Public Prosecutions and others
[2019] ZAKZDHC 19, 2020 (2) BCLR 153 (KZD).
[132]
S
v Zuma and another, Thales South Africa (Pty) Limited v
KwaZulu-Natal Director of Public Prosecutions and others
[2019] ZAKZDHC 19,
2020 (2) BCLR 153
(KZD) para 148; see
Democratic
Alliance v Acting National Director of Public Prosecutions and
others
[2016] ZAGPPHC 255,
2016 (2) SACR 1
(GP),
2016 (8) BCLR 1077
(GP)
and
Zuma
v Democratic Alliance and others; Acting National Director of Public
Prosecutions and another v Democratic Alliance and another
[2017] ZASCA 146, 2018 (1) SA 200 (SCA), [2017] 4 All SA 726 (SCA).
[133]
Per Ponnan JA in
City
of Cape Town v South African National Roads Authority Limited and
others
[2015]
ZASCA 58
;
2015 (3) SA 386
(SCA);
[2015] 2 All SA 517
(SCA).
[134]
Section 36 of the Constitution. See generally in regard to the right
to privacy,
Bernstein
and others v Bester NNO and others
1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC).
[135]
[2007] ZACC 19
;
2008
(1) SACR 1
(CC) para 44.
[136]
Para
238 to 240 above.
[137]
Eke v
Parsons
[2015] ZACC 30
,
2016 (3) SA 37
(CC),
2015 (11) BCLR 1319
(CC) para
29.