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[2019] ZAKZPHC 76
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S v Zuma and Another (CCD30/18, D12763/18) [2019] ZAKZPHC 76 (29 November 2019)
IN THE HIGH COURT
OF SOUTH AFRICA
KWAZULU- NATAL
DIVISION, PIETERMARITZBURG
Case No: CCD30/18
In the matter between:
THE STATE
RESPONDENT
and
JACOB GEDLEYIHLEKISA ZUMA
FIRST ACCUSED
(APPLICANT IN THE APPLICATION FOR
LEAVE TO APPEAL)
THALES SOUTH AFRICA (PTY) LIMITED
SECOND ACCUSED
and
Case No: D12763/18
In the matter between:
THALES SOUTH AFRICA (PTY) LIMITED
APPLICANT
and
THE KWAZULU-NATAL DIRECTOR OF
PUBLIC
PROSECUTIONS
FIRST
RESPONDENT
THE NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
SECOND
RESPONDENT
THE NATIONAL PROSECUTING
AUTHORITY THIRD
RESPONDENT
ORDER
In
the result, the following order is made:
1.
Mr Zuma’s application for leave to appeal is dismissed with
costs such costs to include
those consequent upon employment of two
counsel.
2.
Thales’ application for leave to appeal is dismissed with costs
such costs to include
those consequent upon employment of two
counsel.
JUDGMENT
Delivered on
29
November 2019
Mnguni,
Steyn et Poyo Dlwati JJ:
[
1]
Before us for decision, are two applications for leave to appeal
against the judgment and orders we made
on 11 October 2019, firstly
dismissing Mr J. G. Zuma’s
and
Thales’ applications for permanent stay of prosecutions with
costs and; secondly in Thales’ case only, dismissing
its
application for an order reviewing and setting aside the 2018
decision of Mr Shaun Abrahams, the former National Director of
Public
Prosecutions (NDPP) to reinstate the prosecution against it.
[2]
Mr Zuma seeks leave to appeal to the Supreme
Court of Appeal (the SCA) on the grounds embodied in his notice of
appeal dated 1 November
2019. We shall refrain from repeating them in
great detail except in so far as it may be necessary for the purposes
of this judgment.
We have classified them into three categories. The
first entailed the constitution of the court hearing the application
for permanent
stay. The complaint in this regard was that it was an
irregularity for the criminal trial to be reconstituted and the
application
to be heard as a civil trial by a Full Court of the High
Court as this was contrary to the provisions of ss 110(2) and 145 of
the
Criminal Procedure Act 51 of 1977 (the Act). The contention was
that the application should have been heard before a criminal court
constituted as such to conduct Mr Zuma’s criminal trial.
Consequently, so the contention goes, the Full Court had no
jurisdiction
to conduct a criminal trial including interlocutory
applications brought before a criminal court to determine whether
there was
a legal or factual basis on which the prosecution of Mr
Zuma before that trial court should be permanently stayed.
Ultimately,
the contention is that this constituted a gross
irregularity warranting the setting aside of the proceedings.
[3]
The second related to the alleged violation of Mr Zuma’s fair
trial rights. These were contended
to be delays in prosecuting Mr
Zuma, ranging from the time that Mr Ngcuka announced his decision not
to prosecute Mr Zuma despite
there being prima facie evidence against
him, the delays incurred after the matter was struck off the roll by
Msimang J (as he
then was) after Mr Pikoli had decided to prematurely
charge Mr Zuma and the delays caused by the Democratic Alliance’s
review
application challenging Mr Mpshe’s decision to terminate
the prosecution of Mr Zuma which was later conceded by the State
and
Mr Zuma after having rigorously defended it. It was contended that
another court would find differently than this court on
the basis
that Mr Zuma was not and could not have been responsible for the
delays as the National Prosecuting Authority (NPA) had
the
responsibility to ensure a speedy trial.
[4]
The
third was what was referred to as the NPA’s violations of Mr
Zuma’s constitutional rights when it, for instance,
allowed
political interference during the investigations and prosecution of
Mr Zuma. These included: the Public Protector’s
findings that
Mr Ngcuka’s
conduct,
when he announced that he would not prosecute Mr Zuma, violated his
constitutional rights to dignity; and Mr Pikoli’s
reporting to
the then President of the Republic of South Africa and the Minister
of Justice and Constitutional Development about
the prosecution of Mr
Zuma, the Browse Mole Report and the spy tapes as detailed in Mr
Hofmeyr’s affidavit in the Democratic
Alliance’s review
application. It was contended that another court would find that the
unconstitutional conduct of the NPA
tainted the entire prosecution
process.
[5]
Thales
on the other hand, filed its conditional notice of application for
leave to appeal to the SCA on 31 October 2019. This was
so as it had
applied for direct appeal to the Constitutional Court in accordance
with Constitutional Court Rule 19 to review and
set aside Mr
Abrahams’ decision to reinstate the prosecution against it.
Thales advanced three contentions. The first was
that s 179 of the
Constitution was not a source of the NDPP’s power to institute
a prosecution as relied on by Mr Abrahams.
The second was that if s
179 constituted such a source then the NDPP in making his decision
failed to comply with the binding Prosecution
Policy. And, the third
was that the NDPP’s decision was taken on an irrational and
therefore unconstitutional basis. It was
further contended that the
court had erred in placing any reliance on s 22 of the National
Prosecuting Authority Act 32 of 1998
(the NPA Act) as empowering the
NDPP to reinstate Thales’ prosecution. To the extent that the
court placed reliance on a
provision that was not relied upon by the
NDPP, another court would find differently than this court did.
[6]
Furthermore, it was contended that when the NDPP took the decision to
reinstitute the prosecution of
Thales, this deprived Thales of any
opportunity to seek the review had the decision been taken by the
DPP. In any event, so went
the contention, there was no special
reason as prescribed in the Prosecution Policy of the Prosecution to
reinstitute the prosecution,
and to this extent, the court erred in
finding the existence of a special reason and another court would
find differently to this
court.
[7]
We
turn now to the arguments presented before us in pursuance of these
applications. At the commencement of the argument, Mr
Sikhakhane
SC
,
on behalf of Mr Zuma, tendered an apology to the court for what he
considered to be an attack on the court contained in Mr Zuma’s
notice of application for leave to appeal. Pausing here for a moment,
we observed that this apology only came after Mr
Breitenbach
SC,
on
behalf of the State, submitted in footnote 10 of his heads of
argument that Mr Zuma ought to be penalised for the disrespectful
and
intemperate language used in his notice of appeal as this ought not
to have made its way to the court papers in the first place.
We have
taken liberty of quoting his footnote in full.
[1]
[8]
As correctly pointed out by Mr
Breitenbach
,
the language used in Mr Zuma’s application for leave to appeal
in paras 8, 13, 17, 26, 34, 35, 38, 39, and 41 do not belong
in a
proper court process. W
ithout
diverting our focus from the issues in this application, we deem it
necessary to voice our displeasure on the disrespectful
manner in
which this court was addressed in Mr Zuma’s notice of
application for leave to appeal. This, we do, despite Mr
Sikhakane
’
s
apology as we do not deem it sufficient in the circumstances of this
case. In our view, comments or allegations that are scandalous
or
vexatious to the court ought to be avoided at all costs, as they can
bring the administration of justice into disrepute. They
can also
undermine the public’s confidence in the courts and disturb the
moral authority of judicial process. We do not suggest
that the
courts must not be criticised for their judgments but we are of the
view that such comments must be respectful and grounded
on the
judgments as they can have a wider impact than merely hurting the
judges’ feelings or impugn their reputation. All
officers of
the court ought to know better and we do no more than urge them to
take cognisance of the Constitution and their oath
of office in
matters of this nature. Disturbingly, in Mr Zuma’s heads of
argument dated 20 November 2019 no attempt was made
to deal with this
pernicious issue.
[9]
Perhaps
prior to turning to the applications for leave to appeal it is
apposite to restate the test applicable for such applications.
These
applications are regulated by s 17 of the Superior Courts Act 10 of
2013 (the Superior Courts Act). Section 17(1) provides
that leave to
appeal may only be given where the judge or judges concerned are of
the opinion that:
(a)
(i) the appeal would have a reasonable prospect of success; or
(ii) there is
some other compelling reason why the appeal should be
heard, including
conflicting judgments on the matter under consideration.
[10] In
S v
Smith,
[2]
Plasket AJA (as he then was) had this to say about the reasonable
prospects:
‘
What the test
of reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that a
court of appeal
could reasonably arrive at a conclusion different to that of the
trial court. In order to succeed, therefore, the
appellant must
convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote, but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of
success, that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be
a sound, rational basis for
the conclusion that there are prospects of success on appeal.’
(Original footnote omitted)
This was quoted with
approval in
MEC
Health, Eastern Cape v Mkhitha
.
[3]
[11] As
correctly held in
Acting
National Director of Public Prosecutions & others v Democratic
Alliance In Re: Democratic Alliance v Acting National
Director of
Public Prosecutions & others
[4]
the use of the word ‘would’ indicate a measure of
certainty that another court will differ from the court whose
judgment
is sought to be appealed against.
[12] The
first ground of the application for leave to appeal was based on the
jurisdiction of this court. Mr
Sikhakhane
, correctly in our
view, conceded that this issue was never raised in the papers nor in
argument during the application and therefore
ought not to be before
us. He, therefore submitted that he was abandoning this ground of the
application for leave to appeal. In
any event our view on this matter
was that it was the prerogative of the Judge President of this
division in terms of
s 14
of the
Superior Courts Act to
have the
court constituted in the manner in which it was. This also found
support in the Norms and Standards for the Performance
of Judicial
Functions issued by the Chief Justice on 28 February 2014.
Furthermore, as Mr Zuma has not pleaded to any charges before
this
court, his trial cannot be deemed as having commenced. We therefore
find that there is no merit in this ground of appeal and
we do not
believe that another court will find differently.
[13] The
second ground relates to the delays in prosecuting Mr Zuma and the
delays incurred during the prosecution of
Mr Zuma leading to the
matter being struck off the roll and the Democratic Alliance’s
review application. These have been
thoroughly considered in our
judgment in the context of this application, especially from
paragraphs 126 to 150 of our judgment.
We do not believe that another
court, after properly considering our judgment in context and in its
totality, would find differently.
[14] The
final ground related to the constitutional violations of Mr Zuma’s
rights. Reference in this regard was
made to political interference
as found by Nicholson J, the Browse Mole Report, Spy tapes and Mr
Hofmeyr’s affidavit in the
Democratic Alliance review
application. Whilst the submission on behalf of Mr Zuma was that even
though these have been pronounced
upon by the SCA, this was in a
different context. We do not agree. It is unlikely that the SCA
will find differently than
that the prosecution is not wrongful
merely because it is brought for an improper purpose. This is
especially so as the SCA was
examining the conduct of the various
individuals complained about. In addition, even Mr Mpshe had conceded
in his media statement
in 2009 that the integrity of the
investigation has never been tainted.
[15]
Furthermore, the submission that we over emphasised the seriousness
of the crime more than Mr Zuma’s rights
has no merit
whatsoever. The seriousness of the crime is but one of the factors to
be considered in an application for a permanent
stay. We therefore
are not persuaded that another court, in particular the SCA, would
come to a different conclusion than the one
we arrived at. There is
also, in our view, no other compelling reason why we should allow the
appeal. It is in the interests of
justice and bringing the matter to
finality that no appeal should ensue.
[16]
With regard to costs, we were mindful that in applications of this
nature it is not usual to grant a costs order
against an applicant.
However, in our view, Mr Zuma’s complaints were not genuine,
hence a costs order. In any event there
was no compelling reason why
the costs should not follow the result, the current application
included. This issue was also not
raised in argument before us
despite the State’ argument for such an order.
[17] We
now turn to Thales’ grounds of appeal. Mr
Katz SC
on
behalf of Thales submitted that Thales only sought leave to appeal
the review relief, the NDPP’s decision to reinstate
prosecution
against Thales. The submission in this regard was that the NPA Act
and not s 179 of the Constitution gives effect to
the power of the
NDPP to institute criminal proceedings. However, Mr Abrahams had
relied on s 179(2) of the Constitution in his
letter of 14 February
2018, to reinstate the prosecution against Thales and this was wrong,
so went the submission. Therefore,
the court erred, whilst examining
s 179(2) of the Constitution, to consider and examine the provisions
of s 22 of the NPA Act as
it had not been relied upon. Reference to
paragraph 163 of the judgment was made in this regard. It was
contended therefore that
another court would interpret the provisions
of the Constitution and the Act differently and that it constitutes a
compelling reason
to grant leave to appeal.
[18] We
do not agree, and more importantly, the SCA has already pronounced on
this issue in
National
Director of Public Prosecutions v Zuma.
[5]
We do not believe that it would find differently because of the
context of this application. It follows therefore that Mr Abrahams’
decision could not have been irrational or contrary to the NPA
Policy. In the circumstances, we are not persuaded that another
court
would find differently and the application for leave to appeal ought
to fail.
Order
[19] In
the result, the following order is made:
[19.1] Mr Zuma’s
application for leave to appeal is dismissed with costs such costs to
include those consequent upon employment
of two counsel.
[19.2] Thales’
application for leave to appeal is dismissed with costs such costs to
include those consequent upon employment
of two counsel.
Mnguni
J
Steyn
J
Poyo
Dlwati J
Appearances
Heard:
22 November 2019
For the 1
st
Applicant/Accused:
Mr M Sikhakhane
SC, Mr T Masuku SC and
Mr M Sikhakhane
INSTRUCTED
BY:
Lugisani Mantsha Attorneys
REF.:
Mr L.D. Mantsha
TEL.:
011-781 00 99
For the 2
nd
Applicant/Accused:
Mr A Katz SC and Ms M Adhikari SC
INSTRUCTED
BY:
Werksmans Attorneys
REF.:
R Driman/Thal31576.6
TEL.:
021- 405 51 34
For the
Respondent:
Mr A Breitenbach SC, Ms N Mayosi and Ms
H Rajah
INSTRUCTED
BY:
State Attorney (KwaZulu-Natal)
REF.:
Mr P. J. Kevan/119000616/2018/Z/P13/sm
TEL.:
031-365 25 42
[1]
Specifically – the underlining is ours –
the following: p 4 para 8 (“the High Court
sought
refuge
in the SCA judgment that
incorrectly found that motive of a prosecutor is irrelevant”),
p 6 para 13 (the Court “
adopted a
sanitised version of facts
biased
against Mr Zuma and aimed at assisting the NPA’s violations of
Mr Zuma’s constitutional rights”), pp
8-9 para 17 (“It
appears
the High Court worked backwards
in determining this matter, instead of
rigorously and objectively assessing the legal grounds on their
merits”), p 13 para
26 (“the High Court
simply
parroted
Mr Pikoli’s reasons”),
p 16 para 34 (“The High Court
simply
abused
the ruling of the Supreme Court
of Appeal…”) p 18 para 35 (“to confine the
conduct of Mr McCarthy merely to
the timing of the service of the
indictment is erroneous and
calculated
to sanitise
the gravity of the
prejudice against Mr Zuma”), p 18 para 38 (“The High
Court failed to appreciate its role in this
application,
slavishly
aligning itself to the findings of the
Supreme Court of Appeal made in a different application to the one
the High Court should
have concerned itself with”). P 19 para
39 (“The high Court
astonishingly
found…”) and p 20 para 41
(“It simply failed that test – rather making what
appears to be
gratuitous remarks
about Mr Zuma’a political fortunes”).
[2]
S v Smith
2012
(1) SACR 567
(SCA) para 7.
[3]
MEC Health, Eastern Cape v Mkhitha
(1221/15)
[2016] ZASCA 176
(25 November 2016).
[4]
Acting National Director of Public Prosecutions & others v
Democratic Alliance In Re: Democratic Alliance v Acting National
Director of Public Prosecutions & others
(19577/09)
[2016] ZAGPPHC 489 (24 June 2016); [2016] JOL 36123 (GP).
[5]
National Director of Public Prosecutions v
Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para 64.