About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2019
>>
[2019] ZAKZDHC 19
|
|
S v Zuma and Another (CCD30/2018, D12763/2018) [2019] ZAKZDHC 19; [2019] 4 All SA 845 (KZD); 2020 (2) BCLR 153 (KZD) (11 October 2019)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO. CCD30/2018
11/10/2019
In
the matter between
THE
STATE
and
JACOB
GEDLEYIHLEKISA
ZUMA
FIRST ACCUSED
THALES
SOUTH AFRICA (PTY) LIMITED
SECOND
ACCUSED
and
CASE
NO. D12763/2018
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
Coram:
Mnguni, Steyn et Poyo Dlwati JJJ
ORDER
In
the result, the following order is made:
1.
The NPA’s application for condonation of the late delivery of
its answering
affidavit and extension of such delivery from 1 March
2019 to 11 March 2019 is granted with no order as to costs.
2.
The NPA’s application to strike out parts of the replying
affidavit of
Jacob Gedleyihlekisa Zuma dated 1 April 2019 on the
grounds that they are scandalous and/or vexatious, and that they
constitute
impermissible new matter raised in reply is granted in
terms of prayers 1 and 2 of the notice of motion thereof with no
order as
to costs.
3.
The application brought by Thales South Africa (Pty) Ltd to strike
out certain portions
of the answering affidavit of William John
Downer dated 11 March 2019, which refer to portions of the affidavits
filed by Mr Downer
in Mr Zuma’s (Criminal Court) permanent stay
application is dismissed with costs such costs to include those
consequent upon
employment of two counsel.
4.
The application brought by Jacob Gedleyihlekisa Zuma seeking leave to
enter the
letter dated 22 March 2018 with accompanying annexures into
the record of the proceedings in the application for the permanent
stay is dismissed with costs such costs to include those consequent
upon employment of two counsel.
5.
The application brought by Jacob Gedleyihlekisa Zuma under case
number CCD30/2018
is dismissed with costs such costs to include those
consequent upon employment of two counsel.
6.
The application brought by Thales South Africa (Pty) Ltd under case
number D12763/2018
is dismissed with costs such costs to include
those consequent upon employment of two counsel.
JUDGMENT
THE
COURT
Introduction
[1]
In the wake of concession by counsel for Mr Zuma and the National
Prosecuting Authority
(the NPA) at the hearing in the Supreme Court
of Appeal (the SCA) on 14 September 2017 in
Zuma
v Democratic Alliance & others
[1]
(the DA review
application) that the Mpshe decision of 6 April 2009 to discontinue
the prosecution of Mr Zuma was flawed, and with
the full realisation
that the consequence would be that his prosecution would revive, his
counsel ‘gave notice that Mr Zuma
had every intention in the
future to continue to use such processes as are available to him to
resist prosecution’. In its
judgment delivered on 13 October
2017 the SCA, after referring to its earlier judgment in
National
Director of Public Prosecutions v Zuma
[2]
recounted:
‘
The
current applications are part of the continuing litigation saga that
has endured over many years and involved numerous court
cases. It is
doubtful that a decision in this case will be the end of the
continuing contestations concerning the prosecution of
Mr Zuma.’
[3]
[2]
Unsurprisingly, on 31 January 2018 Mr Zuma delivered his
representations to the National
Director of Public Prosecutions (the
NDPP) asking that his prosecution be stopped. On 16 March 2018 the
NDPP declined his representations
and decided that Mr Zuma be
indicted before this court along with Thales South Africa (Pty) Ltd
(Thales)
[4]
on one count of racketeering, four
counts of corruption and one count of money laundering. In addition,
the NDPP decided that Mr
Zuma must be prosecuted for 12 counts of
fraud.
[3]
The origin of these charges is the broad ranging allegations of
impropriety relating
to the acquisition of strategic armaments for
the Department of Defence Force made, inter alia, in September 1999
by Ms Patricia
de Lille
[5]
who was then a member of Parliament.
The acquisition of these strategic armaments has gained a measure of
notoriety worldwide as
the Arms Deal. Flowing from the setting aside
of the Mpshe decision, Mr Zuma and Thales appeared in court on 6
April 2018. The
case was provisionally adjourned to 8 June 2018. On 8
June 2018, it was further adjourned to 27 July 2018 to allow the NDPP
to
consider and respond to the representations from Thales which
sought to have the charges against it either withdrawn or its
prosecution
to be discontinued. On 27 July 2018, Mr Zuma and Thales
notified the court that they intended applying for permanent stays of
their
prosecution. Madondo DJP directed the accused to launch their
applications by 16 November 2018.
[4]
The two applications
were launched as individual matters but heard together as the issues
arising in each one are substantially
the same, save the issue of
judicial review raised by Thales. Mr Zuma brought his application in
the criminal trial court under
case number CCD30/2018. On the other
hand, Thales brought its application in the civil division of this
court under case number
D12763/2018. Mr Zuma and Thales feature,
respectively, as accused 1 and 2 in the criminal case pending in this
court under case
number CCD30/2018. Ms Christine Guerrier (Ms
Guerrier)
[6]
is cited in the criminal case as the
representative of Thales in terms of s 332(2) of the Criminal
Procedure Act 51 of 1977 (the
CPA).
[7]
[5]
On 15 November 2018, Mr Zuma launched this application
for
a permanent stay of his prosecution on the ground that his rights in
ss 35(3)
(d)
,
9, 10 and 12 of the Constitution
[8]
to have his trial begin and concluded
without unreasonable delay have been violated. He also predicates his
application on wide-ranging
grounds of alleged misconduct by
successive NDPPs, prosecutors and officials in the NPA. Thales
launched its application seeking
an order declaring the decision of
the former NDPP Shaun Kevin Abrahams (Mr Abrahams) to re-institute
the criminal prosecution
against it to be inconsistent with the
Constitution and invalid on three separate but interrelated grounds.
The first is that the
decision was ultra vires both on a textual and
contextual interpretation of s 22(9) of the National Prosecuting
Authority Act 32
of 1998 (the NPA Act). The second is that the
decision was in breach of the NPA’s prosecution policy. The
third is that the
decision was irrational. Thales also seeks an order
for a permanent stay of prosecution against it on the ground of
unreasonable
delay.
Background
[6]
In as much as the litigation between the NPA and Mr Zuma has a long
and troubled history
and that the law reports are replete with
judgments dealing with the matter, the nature of the relief sought
and issues arising
in these applications will be better understood
against the background that follows. The Arms Deal entailed the
procurement of
sophisticated military equipment, which included
corvettes, submarines, light utility helicopters, maritime
helicopters, lead in
fighter trainers and advanced light fighter
aircrafts.
[9]
[7]
On 28 September 1999, the then Minister of Defence
[10]
approved the conduct by the
Auditor-General (the A-G) of a special review audit of the Arms Deal
process. On 15 September 2000,
the A-G finalised and signed the
review. In the meantime, the Parliamentary Standing Committee on
Public Accounts (SCOPA) commenced
an investigation into the Arms
Deal. SCOPA produced the 14
th
report in connection with the
investigation which was adopted by the National Assembly on 2
November 2000. That report recommended,
inter alia, that a meeting
between the A-G, the Public Protector (the PP), the NPA and the
Special Investigative Unit (SIU) be
convened to discuss the framework
for a further independent and expert forensic investigation on the
matter.
[8]
On 6 November 2000, Leonard Frank McCarthy (Mr McCarthy) who was the
director of the
Investigating Directorate: Serious Economic Offences
in the NPA, undertook a wide-ranging preparatory investigation into
the whole
of the Arms Deal in terms of s 28(13) of the NPA Act.
Section 28(13) empowered the investigating director to hear evidence
in order
to enable him to determine if there were reasonable grounds
to conduct an investigation into allegations of corruption and fraud
in connection with the Arms Deal.
[9]
On 13 November 2000, the A-G, the PP, representatives of the NPA and
the SIU met and
decided to form the Joint Investigation Team (JIT) to
conduct a joint investigation. In January 2001, Mr Mbeki, the
President of
the Republic of South Africa at the time, decided that
the SIU should not be involved in the JIT investigation.
[10] On
14 November 2001, the JIT submitted its report, which was
subsequently accepted and approved
by Parliament. The key finding in
the JIT report was that although there might have been irregularities
and improprieties in the
Arms Deal, no evidence had emerged at that
point to suggest that those activities had affected the selection of
the successful
contractors to render the contracts questionable. The
JIT concluded that at that time there were no grounds to suggest that
the
government’s contracting position was flawed but added that
the investigations into possible criminal conduct which details
were
withheld from the public were continuing.
[11] In
the course of the preparatory investigation, the records of Thales
were examined. This arose
because of the existence of conflicts of
interest in respect of the position held and role played by Shamin
Chippy Shaik, the brother
of Schabir Shaik (Mr Shaik), who was the
chief of acquisitions in the Department of Defence at the time. Mr
Shaik held interests
in Thales and African Defence Systems (Pty) Ltd
(ADS), which were involved in the bidding for Arms Deal contracts. On
15 September
1999, Nkobi Investments (Pty) Ltd, a company controlled
by Mr Shaik had acquired an effective shareholding of 20% in ADS
through
a 25% shareholding in Thint (Pty) Ltd (then named Thales
Group (Pty) Ltd) up to 19 August 2003 which on that date acquired 80%
of the shares in ADS from Thales Group (International), a
wholly-owned subsidiary of Thales Group (France). A company in Thales
was part of the German Frigate Consortium (the consortium) that was
awarded the contract for the supply of corvettes to the South
African
Navy. ADS was the sub-contractor for the consortium for the supply of
the corvette combat suite.
[12]
Despite Chippy Shaik formally declaring conflicts of interest to the
Arms Deal project control
board in December 1998 in relation to the
companies involving his brother, he did not recuse himself. Instead,
he took part in
the process that led to the awarding of contracts to
those companies. In the Thales audit working papers obtained for
purposes
of the investigation, the director of Special Operations
(the DSO) discovered a reference to a report of bribery involving a
senior
government official relating to the Arms Deal.
[13] The
DSO investigators directed their further investigations to this
aspect. They summoned to
an examination in terms of s 28(13) of the
NPA Act, the members of the auditing firm Arthur Andersen who had
conducted the annual
audit of the South African companies in Thales.
The auditors confirmed under oath that during the audit conducted in
the first
quarter of 2000 they received a report concerning the
involvement in a possible bribe of Alain Thétard (Mr Thétard).
Mr Thétard was the executive chairman of the board of
directors and chief executive officer of Thales and was also the
director of ADS. The auditors also confirmed that the possible
bribery involved a senior government official, Mr Zuma. The auditors
informed the DSO investigators that Mr Thétard denied that he
had ever been approached to pay a bribe. The auditors further
said
that he had, however, admitted that in the past persons seeking
bribes would approach him. Whenever that occurred, he would
seek
permission to pay the bribe from Thomson-CSF in France. As a matter
of course, he would be refused permission whereupon he
would report
the outcome to the person seeking the bribe.
[14]
Armed with that information, the DSO investigators approached and
questioned Mr Thétard,
first informally and then under oath.
Mr Thétard denied that he had ever been approached to pay a
bribe and that he had
told the auditors about being approached to pay
bribes. The DSO investigators were not convinced with his explanation
because the
detail of his denials differed when questioned informally
and later under oath. Furthermore, it contradicted the evidence
obtained
by the auditors. The DSO investigators decided to
investigate further Thales, Mr Thétard and Mr Zuma.
[15] In
mid-2001, the DSO investigators approached Mr Thétard’s
secretary, Sue Delique
(Ms Delique). She testified under oath in
terms of s 28(13) of the NPA Act that subsequent to allegations of
corruption in the
press, there was a flurry of faxes exchanged
between Mr Thétard and his superiors in Paris on whether
Thales should respond
to the allegations. Ms Delique told the DSO
investigators that during that period Mr Shaik requested a meeting of
the ADS board
in Durban. She said that upon Mr Thétard’s
return from a trip to Durban in March 2000 Mr Thétard had
given
her a handwritten letter in French to type and then fax in
encrypted form (the encrypted fax) to Yan De Jomaron (Mr De Jomaron)
of Thales International Africa Ltd in Mauritius and to Jean-Paul
Perrier of Thales Group (International) in Paris.
[16] At
the time of her first interview Ms Delique could not find the
encrypted fax but recalled that
its contents were to the effect that
Mr Thétard, Mr Shaik and Mr Zuma had met in Durban. In that
meeting, Mr Zuma had given
a coded indication, in a code established
earlier by Mr Thétard, which concluded an agreement to the
effect that Mr Zuma
would protect Thales against the investigation
into the Arms Deal and would support and lobby for Thales in future
projects in
exchange for a payment to Mr Zuma of R500 000 per annum
until ADS started paying dividends. Shortly after the second
interview,
Ms Delique found the encrypted fax and handed it over to
the DSO investigators.
[11]
[17] Ms
Delique’s evidence prompted the DSO investigators to
investigate closely the relationship
between Mr Shaik and Mr Zuma. In
the course of investigations, the DSO investigators approached Bianca
Singh (Ms Singh) who was
the personal assistant of Mr Shaik. Ms Singh
testified under oath that Mr Shaik and Mr Zuma had a close and
long-standing friendship.
She also informed the DSO investigators of
various payments which Mr Shaik made on behalf of Mr Zuma.
Subsequently, the DSO investigators
obtained confirmation of these
payments from the documents obtained from the auditors of the Nkobi
group.
[18] In
light of the evidence uncovered in the preparatory investigation, the
DSO investigators recommended
that the general preparatory
investigation be converted into a formal investigation. Mr McCarthy
accepted this recommendation on
24 August 2001. The terms of the
investigation
[12]
included suspected fraud or corruption
involving, inter alia, the consortium for the supply of the
corvettes, and ADS as sub-contractor
for the consortium for the
supply of the corvette combat suite.
[19] Mr
McCarthy drafted the s 28(1)
(a)
declaration in terms of the
NPA Act in such a way that it omitted any reference to Mr Zuma in the
applications. Instead, the phrase
‘a high-ranking official
called Mr X’ was used. He confined the search and arrest
warrants to the premises of Mr Shaik
and companies in the Nkobi group
and Thales. Although the prosecution team had recommended that Mr
Zuma’s premises be searched,
Mr Ngcuka, who was the NDPP at the
time, and Mr McCarthy did not accept that recommendation.
Consequently, Mr Zuma’s residence
and offices were excluded
from the premises to be searched.
[20] On
9 October 2001, the premises in South Africa occupied by Mr Shaik and
the companies in the
Nkobi group, the premises in France and
Mauritius occupied by Thales and certain residences of the officers
of the company were
searched. The documents, computer data and other
materials were seized and later analysed. The originals of the
documents, computer
data and other materials seized in South Africa
from Thales were, by agreement, kept by the DSO investigators.
Immediately after
the searches and seizures in Mauritius, William
John Downer (Mr Downer)
[13]
and a DSO investigator Carla Da
Silva-Nel (Ms Da Silva-Nel) identified 14 relevant documents from the
seized documents, made certified
copies thereof and sealed them in
envelopes. They came back to South Africa with the identified
documents on 11 October 2001. The
identified documents included Mr
Thétard’s diary for the year 2000, which contained an
entry relating to a meeting
he had with Mr Zuma on 11 March 2000.
[21] On
17 October 2001, Thales International Africa Ltd, Valmet Mauritius
Ltd (which by then had
changed its name to MTMM) and Mr Thétard
launched an application in the Supreme Court of Mauritius (the
Mauritian application)
seeking, inter alia, orders requiring the
director of the Mauritian Economic Crime Office to state whether
copies of the materials
seized on 9 October 2001 had been made, and,
interdicting the director from communicating to the South African
authorities any
document strictly not related to the warrant and the
request on which it was based. It would seem that this application
had already
been overtaken by the events as Mr Downer and Ms Da
Silva-Nel had already made copies of the identified 14 relevant
documents and
brought them to South Africa. The Mauritian application
was finally settled on 27 March 2003 on the basis that the Mauritian
authorities
would not communicate to anyone the material or documents
seized during the searches on 9 October 2001 unless, after notice to
the applicants, a court order in Mauritius authorising the
communication was first obtained.
[22] The
investigation and prosecution teams assert that by 2002 the picture
which had emerged from
various sources of information and
investigation pointed to a financial relationship between Mr Shaik
and Mr Zuma which was far
more extensive than what the DSO
investigators had initially thought based on the terms of the
encrypted fax and the documents
obtained from the auditors of the
Nkobi group companies. Based on the aforesaid the DSO investigators
inferred that a wider financial
relationship unrelated to the Arms
Deal existed between Mr Shaik and Mr Zuma.
[23]
Consequently, on 22 October 2002 Mr McCarthy formally extended the
investigation to include the
suspected corruption between Mr Shaik
and Mr Zuma that was not connected to the Arms Deal. The extended
scope of the investigation
included the suspected commission of fraud
and/or corruption, or the attempted commission of those offences,
arising out of payments
to or on behalf of or for the benefit of Mr
Zuma by Mr Shaik, the Nkobi group companies and/or Thales; and Mr
Zuma’s protection
of, wielding of influence for and/or using
public office unduly to benefit Mr Shaik, the Nkobi group companies
and/or Thales.
[24] Mr
Shaik was subsequently summoned to appear before the DSO
investigators for questioning on
26 June 2002. He objected. On 6
September 2002, he launched an application in the Durban High Court
against the NPA questioning
the validity of s 28(6) of the NPA Act.
In his founding affidavit, he made certain allegations to the effect
that Mr Zuma might
be one of the persons under investigation. The NPA
asserts that this was the first time that Mr Zuma’s name was
publicly
mentioned in relation to these investigations. After that
revelation, the NPA immediately requested the then Minister of
Justice
and Constitutional Development, Dr Maduna, to approach Mr
Zuma and inform him of what Mr Shaik had done.
[25] On
29 November 2002 while the DSO investigation team was continuing in
accordance with its expanded
mandate, the Mail and Guardian Newspaper
published an article entitled ‘Scorpions probe Jacob-Zuma’,
citing Mr Shaik’s
application and an affidavit by Mr Downer in
an application for mutual legal assistance (MLA). The prosecution
team asserts that
this was the first media report about the
investigation into Mr Zuma, more specifically his alleged attempt to
secure a R500 000
bribe from Thales in exchange for his
protection during investigations into the Arms Deal and his future
support for further projects
in the country.
[26] Mr
Shaik’s application was eventually dismissed on 18 July 2003.
His application to the
Constitutional Court (the CC) for leave to
appeal the decision of the Durban High Court suffered the same fate
on 2 December 2003.
[27] On
20 March 2003, the NPA successfully applied in the Pretoria Regional
Court in terms of the
International Co-operation in Criminal Matters
Act 75 of 1996 (the ICCMA) for a letter of request for mutual legal
assistance addressed
to the Ministry of Justice in France for the
French authorities to record, through interrogatories, the statements
of certain employees
of Thales including Mr Thétard and Mr
Perrier. The French authorities did not provide the assistance
requested.
[28] On
9 July 2003, the NPA sent to Mr Zuma a list of 35 questions to which
answers were required.
On 13 August 2003, Mr Zuma sent to the DSO a
statement in response to the 35 questions. He denied soliciting or
taking any bribe
and receiving any payments as opposed to loans from
Mr Shaik or the Nkobi group companies over the period 1995 to 2002.
He stated
that he was a party to a loan agreement with Mr Shaik under
which he received loans for personal expenses. He asserted that there
was ‘no evidence at all that Thales had anything to fear from
an investigation into the corvette contract’ and ‘thus
no
conceivable motive’
[14]
for them to have solicited or
entertained solicitations for protection against such an
investigation.
[29] Mr
Zuma also asserted that there was no evidence that he attended a
meeting with Mr Shaik and
Mr Thétard in Durban on 11 March
2000. He denied that he had attended such a meeting, that he had ever
undertaken to protect
Thales or to support Thales’ projects or
that he had any relationship with any of the companies in Thales or
with ADS.
[30] The
DSO investigation team considered the evidence in their possession
against submissions in
Mr Zuma’s statement of 13 August 2003,
and concluded that despite his protestations of innocence, the
evidence gathered during
the investigations revealed otherwise. In
the memorandum dated 21 August 2003 the DSO investigation and
prosecution teams recommended
that the NPA should indict Mr Zuma
along with Mr Shaik, Nkobi group companies and one of the local
Thales Group of which Mr Shaik
was a director. The memorandum was
accompanied by the draft charge sheet. Mr Ngcuka appointed an
advisory team of senior NPA officials,
[15]
who were not part of the DSO
investigation team to consider the investigation team’s
recommendations.
[31] Ms
Davids, a deputy director in the DSO had, at the request of Mr
Ngcuka, provided both he and
Mr McCarthy during 2001 and 2002 with a
memorandum, appraising requests by the DSO prosecution and
investigation teams for authority
to conduct search and seizure
operations and to extend the scope of the investigation. Ms Davids
had consistently been sceptical
about the prospects of a successful
prosecution against Mr Zuma. Ms Ferreira and Mr Downer briefed the
advisory team, which also
considered Mr Zuma’s response to the
35 questions from the NPA.
[32] Mr
Ngcuka and most of the members of the advisory team including Mr
McCarthy concluded that while
there was prima facie evidence of
corruption against Mr Zuma, it was doubtful that the NPA would be
successful in charging him
as opposed to charging Mr Shaik, the Nkobi
group companies and Thales. Mr Ngcuka asserts that he decided to test
his decision with
Mr
Moerane SC
of the Durban Bar. Mr Ngcuka
stated that the reason why he chose Mr
Moerane
was that Mr
Moerane
was very skilled in handling matters with wide
ramifications. On Friday, 22 August 2003, Mr Ngcuka and the advisory
team had a
lengthy meeting with Mr
Moerane.
They worked
through the memorandum of the prosecution team and the reasons
advanced by the advisory team for not prosecuting Mr
Zuma as
contained in Mr Ngcuka’s report to Dr Maduna. Mr
Moerane
agreed with the advisory team’s decision that Mr Zuma should
not be prosecuted.
[33] By
this time Mr Zuma was the Deputy President of the country and the
leader of the government
business in Parliament. Mr Ngcuka asserts
that he decided to announce and explain his decision at a media
conference in light of
the fact that the outcome of the investigation
had become a matter of intense speculation.
[34] Mr
Ngcuka and the advisory team prepared a statement to be read at the
media conference based
on a report to Dr Maduna. On 23 August 2003,
Mr Ngcuka informed Dr Maduna of his decision not to indict Mr Zuma.
They went together
and informed the President, Mr Mbeki, about the
Ngcuka decision. In the course of the day, Mr Ngcuka met with Ms
Ferreira and Mr
Downer and told them of his decision. He also told
them that he intended to announce his decision at a press conference.
The two
expressed their disagreement and disappointment in his
decision and requested Mr Ngcuka to include in his media statement
that
the prosecution team had recommended that Mr Zuma be prosecuted
to which Mr Ngcuka agreed.
[35]
Later that day Mr Ngcuka and Dr Maduna held a media conference at
which Mr Ngcuka announced his
decision to indict Mr Shaik, Nkobi
group companies and Thales on various charges including corruption
and stated that he would
not indict Mr Zuma. Mr Ngcuka said, inter
alia, that whilst there was a prima facie case of corruption against
Mr Zuma, the NPA
had decided not to prosecute him because it was
uncertain if its prospects of success were strong enough for a
winnable case against
him. He also said that the NPA would be
referring the issue of the declaration of gifts and donations
received by Mr Zuma to Parliament
for its consideration.
[36] On
25 August 2003, Mr Shaik appeared in the Durban Magistrate’s
Court. He was presented
with the draft charge sheet containing
various charges including a charge of corruption based on the
benefits given to Mr Zuma
by him and the companies in the Nkobi group
from the period 1 October 1995 to 30 September 2002, being the
period, which the DSO
investigations had covered.
[37] On
30 August 2003, Mr Zuma launched an urgent application in the
Pretoria High Court against
the NDPP, NPA and DSO in which he sought
an order directing the said entities to give him immediate access to
the handwritten French
version of the encrypted fax. The application
was opposed by the respondents. After an exchange of affidavits,
nothing further
happened.
[38] On
30 October 2003, Mr Zuma launched with the PP a complaint about the
manner in which the NPA
had conducted the investigation into him.
This culminated in a report by the PP dated 28 May 2004, the findings
of which included
that Mr Ngcuka had unjustifiably infringed Mr
Zuma’s right to dignity and that he had acted unfairly and
improperly in making
the media statement on 23 August 2003 to the
effect that Mr Zuma would not be prosecuted despite there being a
prima facie case
against him. However, the PP found that there was no
indication that the statement was made in bad faith or with the
intent to
prejudice Mr Zuma.
[39] In
November 2003 Mr Shaik and nine companies in the Nkobi group
represented by Mr Shaik were
indicted in the Durban High Court on,
inter alia, charges of corruption and fraud. Mr Shaik featured as
accused 1, the Nkobi group
companies represented by Mr Shaik in terms
of s 332 of the CPA featured as accused 2 to 10 and Thales, which Mr
Shaik also represented
as accused 11.
[16]
[40] In
the latter half of 2003 an intermediary acting for Thales contacted
Dr Maduna and indicated
that it wanted to meet with him and Mr Ngcuka
in order to furnish the NPA with information required in the
investigation. This
request was made against the backdrop of the
application by the South African authorities to the French
authorities, then pending
in France, to interrogate employees of
Thales, including Mr Thétard and Mr Perrier. Messrs Ngcuka and
McCarthy travelled
to Paris for an off-the-record meeting with Thales
executives around July 2003. The second meeting took place around
September
2003 but nothing of substance was achieved in either of
these meetings.
[41] In
the beginning of 2004 Dr Maduna was contacted by Robert Driman (Mr
Driman), an attorney of
record for Thales.
[17]
He requested a meeting between the
South African authorities and the representatives of Thales. Mr
Driman indicated that Thales
was ready to co-operate with the NPA.
Following the negotiations between the parties, on 19 April 2004, an
agreement was reached
between the NPA and Thales’
representatives that the charges would be withdrawn against Thales
should Mr Thétard make
an affidavit confirming that he was the
author of the encrypted fax.
[42] On
20 April 2004, Mr Thétard provided that affidavit to the NPA.
Oddly enough, on 10 May
2004 Mr Thétard provided a further
unsolicited affidavit in which he, inter alia, stated that the
encrypted fax was a rough
draft of a document in which he intended to
record his thoughts on a separate issue in a manner, which was not
only disjointed
but also lacked circumspection. He also stated that
he had never faxed the document or directed that it be typed or faxed
but had
rather crumpled it up and threw it in a waste paper basket
from where it was possibly retrieved and handed to the NPA. He
refused
to be interviewed or to testify in South Africa or any other
country outside France but was prepared to be interviewed in France
by Messrs Ngcuka and McCarthy on the issues asserted in his
affidavit.
[43]
According to Mr Downer,
[18]
the unsolicited delivery of Mr
Thétard’s second affidavit, and a series of ensuing
engagements between the NPA and
Thales’ legal team between late
May and early July 2004, led the NPA to conclude that Thales was
negotiating in bad faith
and that no good purpose would be served by
pursuing any further engagements with them. Despite reaching this
conclusion, the NPA
resolved to honour its side of the agreement by
withdrawing the charges against Thales before it was required to
plead when the
Shaik trial commenced on 11 October 2004.
[44] Mr
Downer’s explanation in this regard was that Mr Shaik and his
related companies were
the main focus of the prosecution at that
stage. Mr Thétard had already fled to and remained in France,
and there was no
possibility of him being extradited to South Africa
to stand trial. The NPA was concerned about the trial being delayed
by possible
arguments by Thales to the effect that the joinder of
Thales as an accused was a misjoinder and that Mr Shaik who was also
a director
of Thales at the time. The agreement and ensuing
withdrawal against Thales was not as a result of an assessment of the
strength
of the State’s case against Thales.
[45] On
31 August 2004, Mr Ngcuka resigned as the NDPP and Silas Ramaite (Mr
Ramaite) was appointed
as the acting NDPP.
On
11 October 2004, the trial of Mr Shaik commenced in the Durban High
Court before Squires J and two assessors. On 1 February 2005,
Mr
Pikoli became the NDPP. On 2 June 2005, Mr Shaik was convicted on two
counts of corruption and one count of fraud. On 8 June
2005, he was
sentenced to a term of 15 years’ imprisonment on the two counts
of corruption and to a term of three years’
imprisonment on the
count of fraud. The sentences were ordered to run concurrently.
Several of the Nkobi group companies accused
were also convicted and
sentenced to pay substantial fines or suspended fines.
[19]
[46]
After the conviction and sentence of Mr Shaik and the Nkobi group
companies, Mr Pikoli requested
the prosecution team to brief him on
the prospects of a successful prosecution of Mr Zuma. He asserts that
he felt that the findings
of the court in the Shaik trial concerning
Mr Zuma meant that he needed to consider whether or not to prosecute
Mr Zuma.
[20]
On 14 June 2005, Mr
Mbeki announced in Parliament that he had decided to dismiss Mr Zuma
as Deputy President of the country in the
light of the court’s
finding in the Shaik trial that there was an unsavoury relationship
between him and Mr Shaik. On 16
June 2005, the prosecution team
addressed a detailed memorandum to Mr Pikoli on the prospects of a
successful prosecution of Mr
Zuma on charges of corruption related to
those on which Mr Shaik and the Nkobi group companies had been
convicted, as well as fraud
charges arising from his failure to
declare the benefits received from Mr Shaik and the Nkobi group
companies in terms of the Parliamentary
Code of Conduct and the
Executive Ethics Code.
[47] On
17 June 2005, the prosecution and investigation teams in the Shaik
trial briefed Messrs Pikoli
and McCarthy and recommended that Mr Zuma
be prosecuted on the same charges. However, they informed them that
there was a considerable
amount of investigation specific to Mr Zuma
that needed to be undertaken. The outstanding investigation included
searches of Mr
Zuma’s premises, the premises of Nkobi group
companies and possible other persons or institutions who or which
might have
funded Mr Zuma. They further recommended that Mr Pikoli
delay the announcement of his decision until the completion of the
outstanding
investigation.
[48] The
two teams also considered whether to add Thales as the co-accused of
Mr Zuma but decided
against that idea for two reasons. The first was
the difficulties arising from the April 2004 agreement to withdraw
the charges
against it. The second was the possibility of a
misjoinder if the prosecution of Mr Zuma included the fraud charges
in addition
to the corruption charges. Mr Pikoli asked the
prosecution team to provide further details on the agreement to
withdraw the
charges against Thales, in particular, on whether Thales
had satisfactorily held up its part of the agreement. He also asked
the
prosecution team to advise him on whether there were reasonable
prospects of a successful prosecution against each of Thales Holding
companies.
[49] On
20 June 2005 Mr Pikoli announced his decision to indict Mr Zuma after
informing the prosecution
team, Mr Mbeki, Ms Mabandla, the Minister
of Justice and Constitutional Development at the time, and Mr Zuma of
his decision. On
29 June 2005, Mr Zuma appeared for the first time in
the Durban Magistrate’s Court. He was released on bail of R1
000 on
certain conditions with his case being adjourned to 11 October
2005 for further investigation. On 4 July 2005, the prosecution team
addressed a memorandum to Mr Pikoli in which they recommended that
Thales be indicted together with Mr Zuma.
[50]
After considering the memorandum, Mr Pikoli concluded that no
legitimate obstacle was preventing
him from indicting Thales along
with Mr Zuma, as there was a reasonable prospect of a successful
prosecution against them. He decided
that Thales be indicted along
with Mr Zuma on the corruption charges. However, as there was still
further investigation that needed
to be done, he decided to pend his
final decision.
[51]
On 3 June 2005 the Durban High Court granted a restraint order in
terms of s 26 of the Prevention
of Organised Crime Act 121 of 1998
(the POCA) by agreement between the NPA and the accused. The Durban
High Court also granted
leave to appeal to the SCA against the
confiscation order. On 29 July 2005, the Durban High Court granted Mr
Shaik and several
of the Nkobi group companies leave to appeal to the
SCA on a limited basis against their convictions on the second
(fraud) and
third (corruption) counts. The trial court refused them
leave to appeal against conviction on the first count (corruption).
On
petition, the SCA lifted the limitations imposed by the trial
court on the appeal against their convictions and directed that
argument
be heard on their application for leave to appeal against
their conviction on that first count together with the appeal against
their convictions on the second and third counts. On 6 November 2006,
the SCA dismissed
[21]
the appeals against
conviction and sentence as well as the appeal against the
confiscation order.
[22]
The application for
leave to appeal to the CC met the same fate.
[23]
[52] On
19 July 2005, Mr Shaik’s legal team wrote to the prosecution
team advising them that
on 11 July 2005 Mr Shaik resigned as Mr
Zuma’s financial advisor and that all the documents pertaining
to Mr Zuma, which
were held by Mr Shaik or the Nkobi group companies,
were handed to Mr Hulley, Mr Zuma’s then attorney. On 26 July
2005, the
DSO instructed KPMG, which had previously done a forensic
investigation for the DSO for purposes of the Shaik trial, to do a
new
forensic investigation for purposes of the impending trial of Mr
Zuma and Thales.
[53]
On 8 August 2005, Aubrey Thanda Mngwengwe (Mr Mngwengwe),
[24]
in consultation
with Mr McCarthy, extended the scope of the investigation to include
the suspected or attempted commission of fraud
by Mr Zuma in relation
to his declarations of interests to the registrar of Parliamentary
Members Interests, the secretary for
the Cabinet and the South
African Revenue Service in respect of benefits received from Mr Shaik
and/or the companies associated
with Mr Shaik and contraventions of
the Income Tax Act 58 of 1962 relating to those declarations. On 11
August 2005, the DSO applied
and was granted,
[25]
21 search warrants
for various premises including inter alia Mr Zuma’s residences
and offices in Johannesburg and KwaZulu-Natal,
the offices of Mr
Hulley in Durban, the office and residence of Mr Zuma’s former
attorney Ms Mahomed in Johannesburg, the
business premises of Thales
Holding and Thales (Pty) Ltd and the residence of Mr Moynot. On 18
August 2005, the DSO applied for
a further search warrant for Mr
Shaik’s residence in Durban.
[54]
The majority of the ensuing searches were conducted on 18 August 2005
and computers and a very
large quantity of documents and other
materials were seized. On 26 August 2005, Ms Mahomed applied in the
Johannesburg High Court
to have the search warrants pertaining to her
office and residence set aside. On 9 September 2005, Hussain J upheld
her application
and ordered the return of the materials seized during
the searches.
[26]
Hussain J
subsequently gave the NDPP leave to appeal to the SCA.
[55] On
10 October 2005 Mr Zuma and Mr Hulley brought an application in the
Durban High Court seeking
inter alia an order setting aside of the
seven search warrants to Mr Zuma’s residences and offices and
those relating to
Mr Hulley, directing that all of the items seized
on 18 August 2005, including any copies made thereof, be returned.
[56] On
11 October 2005, Mr Zuma made his second appearance at the Durban
Magistrate’s Court.
The NPA applied for the matter to be
transferred to the high court. At that stage, Mr Zuma had not yet
been served with the indictment.
Mr Zuma’s legal team opposed
the application. Eventually the parties agreed that Mr Zuma would be
served with a provisional
indictment before the next appearance on 12
November 2005. At the same time, the NPA indicated that it would
endeavour to provide
the final indictment by the end of March 2006.
[57] On
13 October 2005, the prosecution team addressed a further memorandum
to Mr Pikoli recommending
that certain entities in Thales be indicted
alongside Mr Zuma in the high court on 31 July 2006 on two charges of
corruption. The
prosecution team also recommended that a fresh
application for a letter requesting mutual legal assistance from
Mauritius aimed
at obtaining the originals of documents seized during
a search and seizure operation on 9 October 2001 be brought in the
Durban
High Court. After considering the memorandum, Mr Pikoli
decided to indict Thales and Thales Holding as accused 2 and 3. On 14
October
2005 Mr Shaik and two companies in the Nkobi group companies
brought an application in the Durban High Court for the setting aside
of the search warrants relating to the searches of their premises on
18 August 2005. The NPA opposed the application. The parties
exchanged the customary affidavits but nothing happened in the
matter.
[58] On
3 November 2005, the NPA sent the provisional indictment to Mr
Hulley. It further advised
Mr Hulley that it had decided to indict
Thales alongside Mr Zuma. On 4 November 2005, the provisional
indictment was served on
Thales to appear in the Durban High Court on
31 July 2006.
[59] On
7 December 2005, the NPA applied in the Durban High Court, in terms
of s 2(1) of the ICCMA,
for the issuing of a letter of request to the
A-G of Mauritius to release to the South African High Commissioner in
Mauritius the
originals of the documents seized from the premises of
Thales in Mauritius on 9 October 2001. On 17 January 2003, the
Mauritian
Independent Commission against Corruption (the ICAC)
pointed out that the NPA should send a fresh request specifying to
whom the
seized documents should be released because the original
request was silent on that aspect. On 22 March 2006, Combrink J
postponed
the ICCMA application to a date to be arranged with the
court hearing the criminal trial. Combrink J pointed out that the
criminal
trial court seized with the matter was the only court with
jurisdiction to hear the application. Combrink J also pointed out
that
the NPA would have to defer its application until the accused
had pleaded to the charges.
[60] On
5 January 2006, Thales Holding, Thales, Mr Moynot and his wife, whose
premises had been searched
on 18 August 2005, applied in the Pretoria
High Court for the setting aside of the search warrants relating to
their premises.
The NDPP conceded that the search conducted at the
home of Mr Moynot was technically flawed and the NPA returned all the
materials
seized in that search. The application continued only in
relation to the search warrants of Thales and Thales Holding.
[61]
On 15 February 2006, the Durban High Court granted the application
made by Messrs Zuma and Hulley
on 5 October 2005 for the setting
aside of five of the seven search warrants relating to them and
ordered the NPA to return all
the evidence seized under the five
search warrants to them.
[27]
The NPA sought and
was granted leave to appeal that decision to the SCA.
[62] On
24 March 2006, Thales filed a request for further particulars to the
provisional indictment.
On 7 April 2006, the NPA forwarded a letter
to the then legal representatives of Thales advising them that the
NPA
would instead
furnish them with the final indictment once
the search warrant
cases and the application in terms of the ICCMA for a request for
assistance from the Mauritian authorities had
been determined. On 12
May 2006, Thales applied in the Durban High Court for an order
compelling the NPA to provide substantive
answers to their request
for further particulars on the provisional indictment. On 15 May
2006, the Durban High Court dismissed
the application on the ground
that it would be an exercise in futility given the fact that it was
the NPA’s intention to
amend the indictment. On 23 May 2006,
the NPA instructed KPMG to prepare and finalise the forensic report
using all the documents
in possession of the NPA including those
which the NPA obtained during the searches and seizures on 18 August
2005 on the basis
that any disputes about the admissibility of the
seized documents referred to in the report would be dealt with at the
trial. The
instruction excluded those documents in respect of which
privilege was claimed or which remained sealed.
[63] On
26 June 2006, the prosecution team addressed letters to the
respective legal teams of the
accused and the Judge President of this
division advising them that the State was not ready to commence with
the trial on 31 July
2006. The prosecution team proposed a date in
February 2007 for the commencement of the trial. Amongst the reasons
given by the
prosecution team for the proposed postponement was the
production of the final forensic report and the pending Shaik appeal,
which
the prosecution team believed would help to resolve many legal
issues that would be contentious in the prosecution of Mr Zuma and
Thales.
[64] The
legal teams of the accused were not amenable to consent to the
proposed postponement. Consequently,
on 19 July 2006 the NPA brought
a substantive application seeking an order for the postponement of
the trial scheduled for 31 July
2006 to a suitable date in the first
half of 2007. On 31 July 2006, shortly before the commencement of the
hearing before Msimang
J and two assessors, the accused delivered
their answering affidavits to the NPA’s application for a
postponement. The answering
affidavits also served as the founding
papers in their respective applications for a permanent stay of
prosecution. Msimang J adjourned
the applications for hearing to 5
September 2006 and fixed a timetable for the delivery of the NPA’s
answering papers and
the accused’s replying papers. He also
fixed a timetable for the exchange of heads of argument in all the
applications.
[65] On
5 September 2006, the NPA handed the legal teams of the accused
copies of the KPMG forensic
report together with the documents
referred to in the forensic report. The new forensic report revealed
that the alleged corrupt
payments by Mr Shaik or Nkobi group
companies to Mr Zuma continued from the period of 1995 to June 2005
and was in the aggregate
amount of R4 072 499.85. Msimang J ruled
that the court would consider and determine the NPA’s
application for a postponement
first and would not hear argument on
the permanent stay applications. The court heard argument and
reserved judgment. On 20 September
2006, Msimang J refused the
postponement and called on the prosecution to proceed with the trial.
When the prosecution indicated
that it was not ready to proceed with
the trial, he struck the matter off the roll.
[66] In
his judgment, Msimang J was critical of the NPA’s decision to
embark upon the prosecution
precipitously in circumstances in which
the NPA ought to have realised that the outstanding investigations
would not be concluded
within a reasonable time. The effect of
Msimang J’s order was to terminate the criminal proceedings
against Mr Zuma and Thales
resulting in their applications for
permanent stay of prosecutions becoming moot.
[67] The
DSO continued with the investigation of the matter despite the fact
that Msimang J had struck
it off the roll. The further investigatory
work concerned applications which the NPA brought to the Durban and
Pretoria High Courts
in terms of s 2(2) of the ICCMA for the issuing
of letters requesting mutual legal assistance from Mauritius and the
United Kingdom.
The Mauritian MLA application was aimed at obtaining
the originals of the 14 documents in possession of the ICAC seized by
the
Economic Crime Office of Mauritius in Mauritius during the 9
October 2001 searches. The NPA also wanted to obtain affidavits from
the Mauritian authorities who uplifted and preserved the documents.
[68]
As regards the Mauritian MLA application, on 2 April 2007, Levinsohn
DJP granted the order issuing
the letter of request.
[28]
Mr Zuma and Thales
sought and were granted leave to appeal Levinsohn DJP’s
decision to the SCA. The NPA also applied for an
execution of
Levinsohn DJP’s order despite the pending appeal. On 5 June
2007, Hugo J granted the NPA leave to request the
relevant
authorities in Mauritius to start the proceedings required to give
effect to the letter of request forthwith on condition
that if the
requested documents were handed over to the South African authorities
before the conclusion of the SCA appeal, the
documents would be
sealed and kept by the South African High Commissioner to Mauritius
or the registrar of the Durban High Court.
The order also stated that
should the appeal succeed, the documents would be handed back to the
Mauritian authorities without the
NPA having had access to the
documents.
[29]
On 27 August 2007,
before the hearing of the appeal, the NPA conceded in
National
Director of Public Prosecutions & another v Mahomed
[30]
that the relevant
search warrants were overbroad and that the consequent searches of Ms
Mahomed’s premises were unlawful.
However, the NPA argued for
the preservation of the seized documents.
[69] Mr
Pikoli had in the interim been suspended by Mr Mbeki on an unrelated
matter, and Mr Mpshe
had been appointed the acting NDPP. On 8 October
2007, the prosecution team submitted a report to Mr Mpshe in order to
brief him
about the proceedings against Mr Shaik and Nkobi group
companies and the investigation into Mr Zuma and Thales. On 1
November 2007,
Messrs Mpshe and McCarthy met the prosecution team to
assess the team’s readiness to proceed with the prosecution of
Mr Zuma
in the event of a favourable outcome in the SCA. At this
meeting, it was agreed that Messrs McCarthy and Mngwengwe would take
a
decision on Mr Zuma’s prosecution should the SCA rule in
favour of the NPA on their search warrants appeals.
[70]
On 8 November 2007, the parties enjoyed mixed fortune at the SCA. The
SCA dismissed Mr Zuma and
Thales’ appeals in respect of the
Mauritian MLA application.
[31]
A further appeal to
the CC suffered the same fate on 31 July 2008, save in respect of the
search warrant relating to Mr Hulley’s
offices which was
declared unlawful and severed from the rest of the search warrants.
With regards to the United Kingdom MLA application
request, which Van
der Merwe J had decided in favour of the NPA on 14 September 2007, Mr
Zuma and Thales filed an application for
leave to appeal but never
pursued the matter further.
[71]
On the same day, the SCA dismissed the appeal by the NPA in
Mahomed
[32]
but varied Hussain
J’s order by directing that the copies of material seized under
the warrants which were set aside be preserved
by the registrar of
the Johannesburg High Court for the purpose of establishing the
identity of the material seized should the
identity become an issue
in subsequent criminal proceedings. The SCA also dismissed the
appeals concerning the searches conducted
on 12 August 2005.
[33]
Subsequent to the
SCA judgment in favour of the NPA, the prosecution team commenced the
process aimed at finalising a draft indictment
based on all available
evidence, which draft included racketeering charges.
[72] On
13 November 2007, the prosecution team submitted to Mr Mpshe a formal
application in terms
of s 2(4) of the POCA for the inclusion of
racketeering charges in terms of s 2(1) of the POCA in the
indictment. On 20 November
2007, the prosecution team submitted to Mr
Mpshe a formal application in terms of s 111 of the CPA for the
centralisation of the
charges in the indictment into a single hearing
in the Durban High Court. On 28 November 2007 Mr Zuma, Mr Hulley and
Thales applied
to the CC for leave to appeal against the SCA
judgments of 8 November 2007 in the search warrants and Mauritian MLA
application
matters. On 29 November 2007, the prosecution team met
with Messrs Mpshe and McCarthy and the other deputy NDPPs in Pretoria
in
order to brief them about the matter. All those present agreed
that the prosecution should be re-instituted, and that the
indictment,
which included the racketeering charges, be finalised as
soon as possible. On 3 December 2007, the prosecution team completed
the
draft indictment and submitted a report to Ms Mabandla and a
draft indictment to Mr Mpshe.
[73]
On 4 and 6 December 2007, Mr Mpshe told the prosecution team that he
was likely to indict Mr
Zuma and Thales in accordance with the draft
indictment. He also told the prosecution team that he would announce
his decision
in 2008 because he did not want the NPA to be seen to be
responsible for Mr Zuma failing to be elected as ANC
[34]
President at its
mid-December 2007 elective conference in Polokwane where Mr Zuma and
Mbeki were contesting the presidency of the
ANC. The prosecution team
disagreed with his decision to delay indicting Mr Zuma and Thales and
recorded their views in a memorandum
sent to him on 6 December 2007.
[74] On
7 December 2007, Mr McCarthy telephoned the prosecution team and
placed it on record that
he was not consulted about the decision to
delay indicting Mr Zuma and Thales. Unbeknown to the prosecution and
investigation teams,
Messrs Ngcuka and McCarthy were discussing the
timing of the service of the indictment on Mr Zuma as well as the
filing of the
NPA’s answer to Mr Zuma’s application for
leave to appeal to the CC against the SCA’s judgments of 8
November
2007, yet Mr Ngcuka was no longer employed by the NPA.
[75] On
18 December 2007, Mr Zuma was elected President of the ANC at the
conference in Polokwane.
On 21 December 2007, Mr McCarthy telephoned
Mr Downer and told him to round up the members of the prosecution
team who were all
on leave at the time. He told Mr Downer that Mr
Mpshe had instructed him to institute the prosecution immediately. On
28 December
2007, the sheriff, accompanied by Mr Du Plooy, the lead
investigator in this matter, served the summonses and the indictment
on
Mr Zuma and Thales. The NPA also sent letters to the legal teams
of the accused informing them that the trial was to start in this
court on 4 August 2008. The letter asked the legal teams to contact
the prosecution team should the date not be suitable to them.
[76] On
15 May 2008, the legal teams of both the accused and the prosecution
met with the Judge President
of this division about the trial date.
At that meeting, Mr Zuma’s legal team indicated that Mr Zuma
intended to bring two
preliminary challenges to the then current
prosecution. The first was an application challenging the institution
of the prosecution
on the ground that the Pikoli and Mpshe decisions
to prosecute him were incompatible with s 179(5)
(d)
of the
Constitution and s 22
(c)
of the NPA Act in that they were made
without him having been invited to make representations.
[77]
The second application, which Mr Zuma intended to bring in the event
of the first application
being unsuccessful, was an application for a
permanent stay of prosecution.
Thales’
legal team indicated that Thales would also bring an application for
a permanent stay of prosecution. Pursuant to
the discussion, the
Judge President allocated 4 and 5 August 2008, as the dates for the
hearing of the first application. The criminal
trial was adjourned
provisionally to 8 December 2008. On 23 June 2008, Mr Zuma launched
his first application. As foreshadowed
in para 76, the second and
alternative ground on which he relied was that he had a legitimate
expectation to be invited to make
representations before any decision
was taken to change the Ngcuka decision.
[78]
On 12 September 2008, Nicholson J upheld Mr Zuma’s causes of
action and declared the 2007
decision to prosecute him invalid.
[35]
Nicholson J made
wide-ranging findings of serious political interference by members of
the executive with the prosecution process.
The NPA sought and was
granted leave to appeal Nicholson J’s judgment to the SCA. On
12 January 2009, the SCA upheld the
appeal and re-instated the
prosecution against Mr Zuma.
[36]
The SCA found that
s 179(5)
(d)
of the Constitution
did not apply to the decision to prosecute Mr Zuma. The SCA
criticised Nicholson J for making findings of political
interference
and held that Mr Zuma’s allegations on which Nicholson J
made those findings were irrelevant, gratuitous
and based on
suspicion and not on fact and fell to be struck out with a punitive
costs order.
[79]
Following the SCA’s judgment of 12 January 2009, the criminal
proceedings against Mr Zuma
and Thales were re-enrolled in this
court. On 10 February 2009, Mr Zuma’s legal team made written
representations to the
NPA to discontinue his prosecution. By that
time, Mr Zuma had been nominated by the ANC to be the President of
the country and
was expected to be elected as President after the
general elections scheduled to take place in May of 2009.
[80] On
20 February 2009, Mr Zuma’s legal team made oral
representations to the NPA, which consisted
of two parts. The first
part was a briefing, which elaborated on the written representations
on legal issues and the merits. The
second part concerned the
briefing of the NPA on the allegations of a political conspiracy,
which included additional information
that was not contained in the
written representations submitted by his legal team to the NPA.
[81] At
that briefing, Mr Zuma’s legal team disclosed that they were in
possession of recordings
(the spy tapes) of telephone conversations
between Mr McCarthy and various politicians. The legal team asserted
that the spy tapes
proved that Mr McCarthy had manipulated the timing
of the decision to indict Mr Zuma and that he had deliberately
delayed the decision
until after the Polokwane elective conference to
undermine Mr Zuma’s chances of being elected the President of
the ANC. Mr
Zuma’s legal team asserted further that following
Mr Zuma’s election as the President of the ANC at the expense
of
Mr Mbeki, Mr McCarthy had moved with haste to indict Mr Zuma. Mr
Zuma’s legal team informed the NPA that they intended to
apply
for a permanent stay of his prosecution should the NPA persist with
his prosecution.
[82] Mr
Zuma’s legal team also warned the NPA that should it become
necessary to make such an
application the NPA’s involvement in
a political campaign to discredit Mr Zuma, Mr McCarthy’s
involvement in delaying
the decision to indict him, and the motive
behind that decision would be made public. The legal team asserted
further that Mr Ngcuka’s
announcement in 2003 that he had
decided not to charge Mr Zuma along with Mr Shaik despite evidence of
a prima facie case against
him was intended to discredit him. The
legal team asserted further that Mr McCarthy had used the resources
of the NPA and the DSO
to source negative intelligence about Mr Zuma.
The legal team pointed specifically to Mr McCarthy’s role in
the Browse Mole
project, which they asserted, was an intelligence
gathering project initiated and managed by Mr McCarthy without the
knowledge
of Mr Pikoli.
[83] At
the end of the meeting, Mr Mpshe instructed Messrs Hofmeyr and
Mzinyathi to meet with Mr Zuma’s
legal team to establish
whether there was any substance in the allegations. Mr Hofmeyr and Mr
Mzinyathi listened to the spy tapes
on four occasions between 6 and
16 March 2009. In one of those meetings, Mr Zuma’s legal team
confirmed that they had no
information that implicated the
prosecution team or Mr Mpshe in any wrongdoing. On 18 March 2009, Mr
Mpshe met with the deputy
NDPPs, Mr Mngwengwe and the prosecution
team. All present were concerned about the source of the spy tapes.
Mr Zuma’s legal
team had refused to disclose the source of the
spy tapes.
[84] Mr
Mpshe, in particular, questioned whether the NPA could rely on the
spy tapes without first
establishing their source as the spy tapes
might have been obtained unlawfully. The NPA resolved to ask the
South African Police
Service (the SAPS) and National Intelligence
Agency (the NIA) for assistance. The SAPS did not respond to the
NPA’s request.
The NIA confirmed that it was in possession of
intercepted recordings of conversations between Messrs McCarthy and
Ngcuka, which
it obtained in the course of an investigation into the
production and leaking of the Browse Mole report.
[85] On
31 March 2009, Mr Mpshe and the deputy NDPPs listened to the spy
tapes. On 1 April 2009, unbeknown
to the prosecution team, Mr Mpshe,
the deputy NDPPs and Mr Mngwengwe met and decided to accede to Mr
Zuma’s representations.
They also resolved that the decision
would be announced publicly and that the prosecution team would not
be informed about the
decision until shortly before it was made. On 2
April 2009, the prosecution team addressed a further memorandum to Mr
Mpshe urging
him to reject Mr Zuma’s representations.
[86] On
6 April 2009, the prosecution team was called to a meeting with Mr
Mpshe in which he informed
them of his decision to withdraw the
charges against Mr Zuma. The prosecution team was handed copies of a
detailed statement, which
Mr Mpshe intended making to the media later
that day in which he set out the reasons for his decision. The
statement included extracts
from the spy tapes. At this meeting it
was also resolved that charges against Thales should be withdrawn.
The prosecution team
gave reasons in support of the withdrawal of
charges against Thales. In main, it was decided that the whole
racketeering case against
Thales was not worth pursuing without Mr
Zuma. It was resolved further that the press release should include
this announcement.
As evident from Mr Mpshe’s press release, no
mention was made of the withdrawal against Thales.
[87]
Mr Mpshe announced at the media conference on 6 April 2009 that he
had decided to discontinue
the prosecution of Mr Zuma. He asserted
that he considered the spy tapes to be crucial in that they reflected
a manipulation of
the prosecution process for ulterior purposes. Mr
Mpshe stated that Mr McCarthy had abused the prosecution process in
relation
to the timing of the service of the indictment on Mr Zuma
for ulterior purposes. On 7 April 2009, the matter was re-enrolled
and
the charges against Mr Zuma and Thales were withdrawn. That same
day the Democratic Alliance (the DA)
[37]
brought an
application in the high court in Pretoria (the DA review
application), seeking an order reviewing and setting aside the
Mpshe
decision to discontinue the prosecution of Mr Zuma on the basis that
it was unlawful. The NDPP and Mr Zuma opposed the application.
[88] The
DA’s notice of motion called upon the acting NDPP and the head
of the DSO to deliver
to the registrar of the high court in terms of
Uniform rule 53(1) within 15 days after receipt of the application,
the record on
which the Mpshe decision to discontinue the prosecution
was based, including Mr Zuma’s representations. Upon enquiry
from
the State Attorney representing the NPA, Mr Zuma refused to
waive the confidentiality and without prejudice conditions pertaining
to the written and oral representations. He also refused to permit
the filing of the record subject to suitable written confidentiality
undertakings by the DA’s legal representatives.
[89] We
digress to mention that on 9 May 2009, Mr Zuma became the President
of the country. Mr Zuma’s
refusal triggered the DA to launch an
interlocutory application in terms of Uniform rule 6(11) (the DA rule
6(11) application),
seeking an order directing the NPA to dispatch
the record of proceedings on which the decision to discontinue the
prosecution was
based excluding Mr Zuma’s representations and
any documents based thereon. In addition, the DA also sought an order
directing
that the NPA specify, by written notice, the documents or
material excluded from the record.
[90] As
was the case with the DA review application, the NPA and Mr Zuma made
common cause in opposing
the DA’s rule 6(11) application. The
NPA raised three points in limine. The first was that the DA lacked
locus standi to
seek the review of the Mpshe decision. The second was
that the Mpshe decision did not constitute a reviewable
administrative action
under the Promotion of Administrative Justice
Act 3 of 2000 (the PAJA). The third was that the court should
exercise its discretion
against the reviewing and setting aside of
the Mpshe decision even if it is shown to have been unlawful as
contended by the DA.
[91]
At the hearing on 9 June 2010, Richard Young and CCII Systems (Pty)
Ltd (the intervening parties)
sought leave to intervene as parties in
the DA’s review application. Counsel for Mr Zuma appeared and
made submissions in
support of the NPA’s opposition to both
applications. On 22 February 2011, Ranchod J dismissed both
applications on the ground
that the DA and the intervening parties
did not have locus standi to seek judicial review of the Mpshe
decision.
[38]
[92]
The DA and the intervening parties sought and were granted leave to
appeal to the SCA. The appeal
was argued at the SCA on 15 February
2013, and both the NPA and Mr Zuma opposed the granting of the
interlocutory relief sought.
On 20 March 2013, the SCA upheld the
appeal by the DA but dismissed the appeals by the intervening
parties. The SCA held that the
Mpshe decision to discontinue the
prosecution of Mr Zuma was subject to judicial review. The SCA
further directed the NPA to produce
and lodge with the registrar of
the North Gauteng High Court, within 14 days, the record of the Mpshe
decision, excluding the written
representations made on behalf of Mr
Zuma and any consequent memorandum or report prepared in response
thereto or oral representations
if the production thereof would
breach any confidentiality attaching to the representations (the
reduced record).
[39]
[93] On
12 April 2013, the State Attorney delivered the reduced record which
did not include any copies
of the spy tapes and transcripts to which
Mr Mpshe had referred when he announced his decision on 6 April 2009;
or any internal
memoranda, reports or minutes of meetings dealing
with the contents of the recordings and/or transcripts insofar as
these documents
did not refer to Mr Zuma’s written or oral
representations. The State Attorney explained the omission of these
documents
on the basis that their inclusion in the reduced record may
affect Mr Zuma’s rights. The State Attorney informed the DA’s
legal team that Mr Zuma had been informed of their contents with a
view to his deciding whether or not to waive the confidentiality
of
the representations made. The DA was advised that Mr Zuma’s
stance was not to consent to or waive the confidentiality
provisions,
which underpinned the representations.
[94]
On 18 September 2012, the DA brought the second interlocutory
application for an order compelling
(DA’s application to
compel) the acting NDPP to produce and lodge with the registrar of
the high court copies of the documents
foreshadowed in para 92 above.
On 27 September 2012, Mr Zuma’s legal team addressed a letter
to the State Attorney advising
the State Attorney about Mr Zuma’s
stance on the requested documents. The NPA filed a notice abiding the
decision of the
court in so far as the making available of the spy
tapes and the transcripts to the DA but opposed the granting of an
order in
so far as it related to the production of the internal NPA
memoranda. Mr Zuma opposed the DA’s application to compel. On
16 August 2013, the high court granted the DA’s application to
compel.
[40]
[95] Mr
Zuma sought and was granted leave to appeal to the SCA against the
order of the high court
in the DA’s application to compel. The
appeal was argued on 15 August 2014. On 28 August 2014, the SCA
delivered its judgment
dismissing Mr Zuma’s appeal, but varying
the high court’s order to provide that the retired Hurt J would
determine
the internal documents, which revealed the contents of Mr
Zuma’s representations. After Hurt J had returned the redacted
documents, the NPA provided the remainder of the rule 53 record.
[96]
On 6 November 2014, the DA filed its supplementary founding affidavit
in the DA’s review
application. On 31 March and 15 April 2015
the NPA and Mr Zuma, respectively, filed their answering papers in
the DA’s review
application. On 20 May 2015, the DA filed its
replying papers in the DA’s review application. On 29 April
2016 the full court
of the Gauteng Division, Pretoria upheld the DA’s
review application and granted an order reviewing and setting aside
the
Mpshe decision.
[41]
On 24 June 2016,
the high court dismissed their applications for leave to appeal.
[97]
In the midst of the above, on 18 June 2015 Mr Abrahams was appointed
as the NDPP. His appointment
was made possible after the then
President of the country, Mr Zuma and the Minister of Justice and
Correctional Services reached
an agreement with the then incumbent Mr
Nxasana on 14 May 2015, in terms of which Mr Nxasana was to
relinquish his position as
the NDPP on 1 June 2015. The decision to
appoint Mr Abrahams as NDPP was challenged in the Gauteng Division of
the High Court,
Pretoria by Corruption Watch (RF) NPC (Corruption
Watch), Freedom Under Law NPC (FUL) and the Council for the
Advancement of the
South African Constitution (CASAC).
[42]
The applicants
sought, inter alia, orders declaring that the termination of the
appointment of Mr Nxasana, and consequently Mr Abrahams’
appointment as NDPP, were constitutionally invalid.
[98] On
8 December 2017, the high court upheld the orders declaring that the
termination of Mr Nxasana
and the consequent appointment of Mr
Abrahams were constitutionally invalid. The high court suspended
these orders for a period
of 60 days or until such time as the Deputy
President of the country had appointed a new NDPP, whichever was the
shorter. The high
court also made further orders, including declaring
that ss 12(4) and (6) of the NPA Act were unconstitutional and
invalid, and
an order referring those declarations to the CC for
confirmation in terms of s 172(2) of the Constitution. Shortly
thereafter,
the applicants applied to the CC for the confirmation of
the orders of constitutional invalidity. For their part, the NPA and
Mr
Abrahams appealed to the CC against those orders that did not
favour them.
[99] In
October 2016, the CC refused to hear the application for leave to
appeal on the basis that
it was not in the interests of justice to do
so at that stage. The NPA and Mr Zuma approached the SCA for leave to
appeal. On 11
October 2016 and 30 January 2017, the SCA referred the
NPA and Mr Zuma’s applications for leave to appeal for oral
argument
in terms of
s 17(2)
(d)
of the
Superior Courts Act 10
of 2013
. On 19 April 2017, the SCA directed that the two applications
be consolidated. In the run-up to the hearing in the SCA, counsel
for
the NPA advised Mr Abrahams that s 179(5)
(d)
of the
Constitution on which Mr Mpshe had relied on for his decision to
discontinue the prosecution of Mr Zuma, did not authorise
his
decision.
[100]
At the hearing on 14 September 2017, counsel for the NPA and Mr Zuma
conceded that the Mpshe decision was liable
to be set aside. Counsel
for Mr Zuma, however, added that Mr Zuma had every intention in the
future to continue to use such processes
as were available to him to
resist prosecution, including the making of representations in
relation to the discontinuation of the
prosecution and, if the
representations were not successful, an application for a permanent
stay of prosecution. On 13 October
2017, the SCA dismissed the
appeals.
[43]
Flowing from the
SCA’s dismissal of the appeals, notwithstanding the withdrawal
of the charges against him on 7 April 2009,
the prosecution against
Mr Zuma was revived. Accordingly, Mr Abrahams did not have to make a
decision on whether Mr Zuma must be
recharged or not.
[101] It is common cause
that the dismissal of the appeals by the SCA on 13 October 2017 did
not have any effect in
relation to the withdrawal of the prosecution
against Thales on 7 April 2009 since the order of the high court
which was upheld
by the SCA was limited to the Mpshe decision to
discontinue the prosecution of Mr Zuma. As such, Mr Abrahams had to
decide whether
or not Thales should be recharged together with Mr
Zuma. In light of concessions by both counsel for the NPA and Mr
Zuma, on 14
September 2017 and in anticipation of the SCA’s
judgment upholding the high court’s order, Mr Abrahams wrote to
the
acting head of the Directorate for Priority Crime Investigation
(the DPCI) requesting information about the availability of
witnesses,
documentary evidence and the docket.
[102] The reason why Mr
Abrahams approached the DPCI was because the DSO had been disbanded
on 6 July 2009 and its functions
and personnel, including Mr Du
Plooy, were transferred to the DPCI. He was informed that the
witnesses listed in the list of witnesses
in terms of s 144(3)
(a)
of the CPA, prior to the matter being withdrawn in April 2009, were
available to testify should their attendance be required. He
was also
informed that the documentary evidence and the docket were still
available.
[103] On 11 October 2017,
Mr Zuma’s legal team wrote to Mr Abrahams requesting that Mr
Zuma be afforded an opportunity
to make representations which the NPA
had to consider before serving an indictment on him or re-enrolling
the matter. On 20 October
2017, Mr Abrahams wrote to Mr Zuma’s
legal team to inform them that Mr Zuma had until 30 November 2017 to
make his representations.
On the same day, he wrote to the leader of
the DA on various issues concerning the prosecution of Mr Zuma. In
that letter, he also
invited the DA to submit any further comments or
representations on the matter by 30 November 2017. On 27 November
2017, Mr Abrahams
appointed a team of senior NPA prosecutors to
advise him on the impending representations and to conduct the
prosecution should
the matter proceed. On 7 December 2017, following
a request from Mr Zuma’s legal team for a further extension
until 19 February
2018, Mr Abrahams afforded Mr Zuma an extension to
31 January 2018 to make his representations.
[104] On 31 January 2018,
Mr Zuma’s legal team delivered his representations asking that
the prosecution be stopped.
On 8 February 2018 the DPP: KZN, Ms Noko,
forwarded to Mr Abrahams an exchange of emails between her and
Thales’ legal team
in which Thales’ legal team advised
her that they held instruction from Thales to make representations to
the DPP: KZN regarding
the matter. Ms Noko informed Thales’
legal team that any such representations should be submitted to Mr
Abrahams’ office
because Mr Abrahams would make a decision on
the matter.
[105] On 14 February 2018,
Mr Abrahams declined Mr Zuma’s representations. He wrote
to the DA’s legal
team to inform them that he would reconsider
the DA’s request for a copy of Mr Zuma’s representations
should he decide
in favour of Mr Zuma’s representations that
the prosecution should be stopped. On the same day Thales’
legal team sent
an email to Mr Abrahams’ office confirming
their instructions to act on behalf of Thales and indicating that
Thales wanted
to make representations with regard to the potential
prosecution of Thales. Thales’ legal team also requested that
Mr Zuma’s
written representations be sent to them. Mr Abrahams
sent a response to Thales’ legal team that same day declining
their
request to make representations and refusing their request for
a copy of Mr Zuma’s representations.
[106] On 20 December 2017,
attorneys acting for CASAC addressed a letter to the State Attorney
representing the NPA
and Mr Abrahams in the CC proceedings requesting
that the NPA and Mr Abrahams give an undertaking either not to make a
decision
regarding the prosecution of Mr Zuma until the CC had handed
down its decision in the confirmation application or, if they
intended
taking a decision, that they give CASAC two weeks’
advance notice of their intention to do so. Following an exchange of
correspondence,
the State Attorney sent a letter to CASAC’s
attorney on 15 January 2018 which included an undertaking by Mr
Abrahams to give
CASAC two weeks’ advance notice of his
intention to make a decision.
[107] In a memorandum
dated 23 February 2018, the prosecution team recommended to Mr
Abrahams that Mr Zuma’s representations
be rejected and that
his prosecution and that of Thales be restarted forthwith. Mr
Abrahams was inclined to refuse Mr Zuma’s
representations. On
26 February 2018, Mr Abrahams instructed the State Attorney to inform
CASAC, as per his undertaking, that he
would announce a decision on
15 March 2018 on whether the prosecution of Mr Zuma would go ahead or
not.
[108] On 6 March 2018,
CASAC brought an urgent application in the CC for an order
interdicting Mr Abrahams from announcing
his decision. The NPA
opposed this application. On 14 March 2018, the CC dismissed CASAC’s
urgent application. On 16 March
2018, Mr Abrahams wrote to Mr Zuma’s
legal team informing them of his decision to reject Mr Zuma’s
representations.
Later that day, Mr Abrahams announced his decision
at a media conference, where he read out a statement announcing his
decision.
Shortly after the announcement of his decision on 16 March
2018, the indictment was finalised and served on Mr Zuma and Thales
and they were summoned to appear in the high court in Durban on 6
April 2018.
[109] On 6 June 2018, Mr
Driman submitted written representations supporting a request that
the charges against Thales
be withdrawn. On 8 June 2018, the accused
appeared in the KwaZulu-Natal Local Division of the High Court,
Durban for the second
time. Their case was provisionally postponed to
27 July 2018 to allow the NPA time to consider and respond to the
representations
from Thales. At the same time, Mr Zuma’s legal
team indicated that they required time to prepare this application.
[110] On 27 June 2018,
Thales’ legal team submitted brief supplementary
representations to Mr Abrahams. On 10
July 2018, the prosecution team
sent a memorandum to Mr Abrahams regarding the representations from
Thales recommending that Thales’
representations be rejected
and that the prosecution should proceed against Thales. Mr Abrahams
accepted the prosecution team’s
recommendation, as he believed
that Thales had a case to answer on the merits. He considered the
issues regarding the delay and
the unavailability of witnesses that
Thales raised in its representations to be issues that would be dealt
with by a court in the
application for a stay of prosecution.
[111] On 25 July 2018, Mr
Abrahams wrote to Thales’ legal team informing them of his
decision to reject Thales’
representations. He advised them
that he was of the view that there were reasonable prospects of a
successful prosecution against
Thales South Africa.
[112] As already stated,
in November 2018 Mr Zuma and Thales brought the present applications
seeking orders foreshadowed
in para 5 above.
[113] The gravamen of Mr
Zuma’s contention is that he is entitled to a permanent stay of
prosecution because his
constitutional rights entrenched in ss
35(3)
(d)
, 9, 10 and 12 of the Constitution have been violated.
He alleges that from about the commencement of the investigation in
early
2000 until the withdrawal of the charges against him on 7 April
2009, the investigation and prosecution teams were part of a strategy
by his political opponents aimed at stopping him from being elected
as the President of the ANC and ultimately of the country.
He
contends that the Ngcuka decision and announcement were made in bad
faith and for ulterior purposes of harming his political
career and
strengthening the NPA’s chances in a future trial against him.
[114] Mr Zuma’s
application for a permanent stay of prosecution is founded on the
following four pillars:
(a)
Unreasonable delay, which includes charge delay and trial delay,
occasioned by the conduct and
inconsistent decisions of the NPA in
the past 16 years;
(b)
Indisputable forensic and evidential prejudice resulting from the
inordinate delay and the deliberate
and indefensible decision of
prejudice resulting from the NPA not to charge Mr Zuma together with
Mr Shaik, when it was ready to
charge them together;
(c)
Political and external interference with the prosecution, in
violation of the Constitution, the
NPA Act and the prosecution
policy; and
(d)
Pre-trial irregularities (including prosecutorial misconduct) and
unlawfulness in the manner
in which the NPA pursued the investigation
against Mr Zuma.
[115] Thales’
application for a permanent stay is also predicated on s 35(3)
(d)
of the Constitution. Thales contends that it has suffered significant
and irreparable prejudice to its fair trial rights. Hence,
we shall
now deal with both Mr Zuma’s and Thales’ applications for
permanent stay of their prosecutions.
Stay of prosecution
[116]
Expeditious conclusion of criminal proceedings has always been an
essential element of a fair trial.
[44]
Prior to the
commencement of the interim Constitution,
[45]
the power of our
courts to disallow or grant adjournments was governed by s 168
[46]
of the CPA - a
provision that is still in force. This section gives courts the power
to adjourn proceedings if they deem it necessary
or expedient, and by
implication, the power to also refuse to adjourn.
[47]
The principle that
an accused person is entitled to a speedy trial was well established
in the common law. The focus under the common
law was on the
reasonableness of the adjournment as determined by the proceedings.
In
S
v Geritis
[48]
Vieyra J said:
‘
[T]he
decision is one within the discretion of the judicial officer
presiding at the trial and that it must be a judicial discretion.
I
venture to suggest that in exercising such discretion two basic
principles must be borne in mind. The one is that it is in the
interests of society and accordingly of the State that guilty men
should be duly convicted and not escape by reason of any oversight
or
mistake which can be remedied. The other, no less valid, is that an
accused person, deemed to be innocent, is entitled, once
indicted, to
be tried with expedition.’
[49]
[117]
In
S
v Magoda
[50]
the court held that
the appropriate remedy in matters of undue delay would be to refuse
an adjournment and it went as far as to
deem the State’s case
closed in circumstances where the State refused to close its case.
[118]
In
Du
Preez v Attorney-General of the Eastern Cape
[51]
the court held that
20 months was not an unreasonable delay and did not justify the
drastic remedy of a stay of the prosecution.
The court gave
consideration to
Barker
v Wingo
[52]
where the Supreme
Court of the United States approved of a four factor test in deciding
upon speedy trial claims namely:
(a) The
length of the delay before the institution of the prosecution;
(b)
The reason for the delay;
(c) The
assertion by the accused of his rights; and
(d)
The prejudice to the accused.
[119]
In
Berg
v Prokureur-Generaal
,
Gauteng
[53]
it was held that a
permanent stay of proceedings could be granted in appropriate cases,
but should be reserved only for exceptional
cases as it was an
extreme remedy.
[54]
[120]
In
Sanderson
v Attorney-General, Eastern Cape
,
[55]
the CC held that
the amount of elapsed time was central to the reasonableness enquiry,
and that time had a pervasive significance
that impacts upon all of
the factors. The length of the delay was not to be considered as a
threshold requirement, nor decided
in isolation. The amount of time
that had elapsed not only conditioned the relevant considerations,
such as prejudice, but was
itself conditioned by them.
[56]
It is appropriate
to balance the length of the delay with all the other factors,
particularly prejudice, rather than to establish
this factor as a
barrier to relief when the level of the threshold would be arbitrary.
The CC further listed three factors that
need to be considered when
an application for permanent stay has been brought. These are:
(a) The
right to a trial within a reasonable time, which is fundamental to
the fairness of the trial
and the consequent prejudice suffered by an
accused if this, does not materialise;
(b) The
nature of the case; and
(c) The
so-called systemic delay such as effectiveness of police
investigation or prosecution of
the case and delays caused by
congested court rolls.
It
was held that the test for establishing whether the time allowed to
lapse was reasonable should not be unduly stratified or
preordained.
[57]
[121]
In
Wild
& another v Hoffert NO & others
[58]
the CC described
the relief for a permanent stay of prosecution as a far-reaching
remedy. The CC held that it is radical, both philosophically
and
socio-politically and that ‘it prevents the prosecution from
presenting society’s complaint against an alleged
transgressor
of society’s rules of conduct. That will be seldom warranted in
the absence of significant prejudice to the
accused’.
[59]
In
Zanner
v Director of Public Prosecutions, Johannesburg
[60]
the SCA held that
in deciding upon a permanent stay, it was important to have regard to
the nature of the offence. It pointed out
that the accused’s
interest should be juxtaposed against the social demands in serious
offences and concluded that the accused
should stand trial.
[61]
The court
[62]
accepted that
compelling reasons for granting a permanent stay of prosecution would
normally relate to trial prejudice such as the
unavailability of
witnesses or fading memory, in consequence whereof the accused may be
prejudiced in the conduct of his or her
trial. The accused had
to show definitive and not speculative prejudice, as it is not
sufficient to rely on vague allegations
of prejudice resulting from
the passage of time and the absence of witnesses.
[122]
In 2010 the Constitutional Court considered a 37 year delay of
instituting prosecution against the accused in
Bothma
v Els & others.
[63]
The court
re-affirmed the factors that should be considered in a decision to
stay a criminal prosecution and essentially re-affirmed
the approach
adopted by the SCA in
Sanderson
above
.
Sachs J held that a
balancing test in which the conduct of both the prosecution and the
accused had to be weighed and the following
considerations examined:
the length of the delay; the reason the government assigns to justify
the delay; the accused’s assertion
of a right to a speedy
trial; and prejudice to the accused.
[64]
In some cases, the
nature of the offence and the public policy considerations that may
be attached to it are taken into account
including the interests of
victims to such an offence.
[123]
Counsel for Thales has also referred us to
Van
Heerden & another v National Director of Public Prosecutions &
others
[65]
in which the SCA
granted a permanent stay of prosecution. In
Van
Heerden,
the
court was misled by the prosecution and that was conceded to by the
State’s counsel when the matter was argued in the
SCA.
Van
Heerden
is
therefore distinguishable from the facts in casu. We are however
mindful of the guidance given by the SCA at para 70:
‘
I
cannot stress enough that decisions in matters of this kind are fact
specific. It follows that this judgment should not be resorted
to as
a ready guide in determining the reasonableness or otherwise of
delays in the finalisation of trials.
Whether
a breach of a right to an expeditious trial has occurred and relief
is justified, is to be determined by a court after having
been
apprised of all the facts on a case by case basis
.’
(Our emphasis.)
[124]
More recently, the full court in Gauteng Local Division, Johannesburg
held in
Rodrigues
v National Director of Public Prosecutions & others
and we endorse the
court’s observation at para 108:
[66]
‘
The
refusal of a permanent stay of prosecution is not signalling that we
are required to be vengeful to those who are alleged to
have
committed serious crimes in the past, but rather
an
affirmation that the principles of accountability and responsibility
for breaching the rules of society stand at the doorway
of our new
constitutional order.
’
(Our
emphasis.)
[125] The decks have now
been cleared for a consideration of the contentions advanced by each
of the applicants in support
of their respective applications for a
permanent stay against these factors. We first consider those
advanced by Mr Zuma.
The Ngcuka decision
[126] Mr Zuma contends
that Mr Ngcuka’s statement was the gravest travesty of justice
because Mr Ngcuka passed
judgment on him in the ever biased court of
public opinion. He contends that Mr Ngcuka could have charged him in
August 2003 together
with the accused in the Shaik trial but Mr
Ngcuka decided against that with the result that the Shaik trial ran
without him. According
to him, Mr Ngcuka did not indict him in the
Shaik trial because he wanted to use that trial as a dry run to allow
the prosecution
to present and elicit damning evidence in public
about his relationships and dealings with Mr Shaik, Nkobi group
companies and
Thales without him having the opportunity to
cross-examine the witnesses called to testify in the trial and to
give his version.
He contends that Mr Ngcuka also wanted to seek in
his absence the conviction of Mr Shaik as well as rulings on issues
that would
pave the way for his successful prosecution in future. He
contends that Mr Ngcuka’s failure to indict him intended to and
did successfully prejudice him because evidence implicating him was
led and accepted in the Shaik trial in his absence.
[127] It is common cause
that Mr Ngcuka announced at a conference on 23 August 2003 in the
presence of Dr Maduna that
he had decided to indict Mr Shaik, Nkobi
group companies and Thales, but stated that he would not indict Mr
Zuma who was to have
been the recipient of the alleged corrupt
payments from Mr Shaik and Nkobi group companies. Mr Ngcuka explained
that after a careful
consideration of the facts and the evidence,
they concluded that whilst they had a prima facie case of corruption
against Mr Zuma,
their prospects of success were not strong enough.
[128] Mr Ngcuka explained
that on receipt of the memorandum from the prosecution team which
recommended that Messrs
Shaik and Zuma be indicted, he assembled an
advisory team of eight senior NPA officials to help him consider the
recommendations.
He together with the advisory team, considered the
evidence, the submissions of the prosecution team and Mr Zuma’s
response
to the 35 questions. Most of the members of the advisory
team, including himself, concluded that there were reasonable
prospects
of a successful prosecution of Mr Shaik, Nkobi group
companies and Thales.
[129] Mr Ngcuka asserted
that the analysis of the evidence by him and the advisory team in
relation to the prosecution
of Mr Zuma revealed the following:
(a)
The evidence discovered and gathered during the investigation
consisted largely of letters,
faxes and records. There was
insufficient witness testimony that could attest to the contents of
the documents in question, insofar
as they related to Mr Zuma;
(b)
Even though Mr Zuma was referred to often in the letters,
correspondence and diaries, only in
very few instances could criminal
knowledge be imputed to him and his direct involvement be proven;
(c)
Whilst they had strong evidence about Mr Zuma’s presence at
various critical meetings,
[67]
they had
insufficient corroboration about his role in those meetings;
(d)
Although Thales paid R250 000 to Nkobi group companies which
they suspected to be a follow-up
to the bribe solicited, they had
some doubt whether Mr Zuma was aware of that payment. They considered
that the payment could have
represented a concealed bribe, but the
evidence which they had fell short of the required standard;
(e)
Mr Zuma was given an opportunity to provide them with his version, in
the form of a questionnaire,
which covered the pertinent areas around
which they felt he had a case to meet. His responses were not
helpful. Consequently, he
could come to court and present a defence,
which was reasonably possibly true;
(f)
They observed a disturbing trend which showed that Mr Shaik
manipulated his relationship
with Mr Zuma and exploited the latter’s
financial vulnerability in order to advance his own business
interests; and
(g)
They considered the fact that it is the duty of the court to assess
the evidence and make a finding
and not that of the prosecuting
authority but they took into consideration the disruptive effect of
such a decision on the government
and the broader South African
society in the context of not being assured of a successful outcome.
[130]
Having analysed the evidence, they asked themselves whether they had
a reasonable prospect of a conviction. Hitherto,
the test they
applied was to assess whether there was sufficient and admissible
evidence to provide a reasonable prospect of a
successful prosecution
otherwise the prosecution, should not be commenced or continued.
Having assessed the evidence, they agreed
that their case against Mr
Zuma was not strong enough to warrant his prosecution. Ultimately,
they concluded that, although there
was a prima facie case against Mr
Zuma, it did not meet the reasonable prospect of conviction test.
[131]
Counsel for Mr Zuma submitted that a prosecutor is obliged to
prosecute whenever he has a prima facie case. He
submitted that the
Ngcuka decision in this regard was not consistent with the
Constitution, the NPA Act and the prosecution policy
directives, code
of conduct or any prosecution standard. The difficulty with this
proposition is that the legitimacy of the test,
which Mr Ngcuka
applied, was confirmed by Harms DP in
National
Director of Public Prosecutions v Zuma
[68]
when he concluded
pertinently 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. 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.’ (Footnotes omitted.)
[132] This reasoning
commends itself to us as applying equally in this matter. Counsel for
Mr Zuma had another arrow
in his quiver. He contended that the
decision was not taken to advance a legitimate prosecutorial
principle but was part and parcel
of a grand political scheme to keep
Mr Zuma in the public controversy where he would be regarded as being
a corrupt leader without
affording him a legitimate constitutional
platform to deal with those allegations. In support of this
submission, he relied on
Mr Ngcuka’s declaration that he was a
political supporter of Mr Mbeki in the run up to the ANC Polokwane
conference and that
at the time he was in regular contact with some
senior ANC members and supporters. We find this argument
fundamentally flawed.
The flaw seems to lie in the fact that the
uncontested evidence of Mr Ngcuka was that in the indictment of Mr
Shaik and his co-accused,
which was about to become public, reference
was of necessity made to Mr Shaik’s relationship with Mr Zuma
and the bribe agreement
with Mr Thétard. The indictment spelt
out what was clearly a prima facie case of corruption against Mr
Zuma. Mr Ngcuka felt
obliged to explain to the public why he had
decided not to prosecute Mr Zuma despite the prima facie case
disclosed by the indictment
to avoid an inference that Mr Zuma was
receiving special treatment. Therefore, his relationship with Mr
Mbeki or being his supporter
was immaterial as the prima facie
evidence of corruption was there regardless.
[133]
Mr Zuma contends that he should have been prosecuted with Mr Shaik
and that it was unfair to deprive him of the
benefits of such a joint
prosecution. We observe that a similar complaint was raised by Mr
Shaik in his appeal against the conviction
to the CC.
[69]
In rejecting this
complaint, the CC held that the fact that there might often be cogent
reasons for the holding of joint trials,
does not of course mean that
a specific trial would be unfair because other possible perpetrators
are not charged together with
an accused.
The
CC further held that the proposition cannot be upheld 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 amounts to a breach of any established rule of criminal
procedure.
[70]
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. Any delay
during this period would be justifiable if one has regard to Mr
Ngcuka’s explanation and the fact
that the investigations were
ongoing.
The Pikoli decision
[134] As stated above, on
20 June 2005 Mr Pikoli announced his decision to indict Mr Zuma and
Thales. The main thrust
of Mr Zuma’s argument was that there
were no special or exceptional circumstances and no new evidence
justifying the Pikoli
decision to reverse the Ngcuka decision not to
prosecute him. Counsel for Mr Zuma contended that the decision not to
prosecute
Mr Zuma was not because there was no ‘evidence’
against him at the time but it was a deliberate decision by Mr Ngcuka
not to indict him. He submitted that the evidence in question was not
independent and could have been used against Mr Zuma in his
trial
with Mr Shaik.
[135] Counsel for Mr Zuma
contended that there was no legal basis for Mr Pikoli to report his
decision to Mr Mbeki and
Ms Mabandla in the light of the well
documented and reasonably held public perception of executive
interference in the prosecution
of Mr Zuma. According to him, Mr Zuma
was then officially an accused person and s 35(3)
(d)
of the
Constitution entitled him the right to have his trial begin and
conclude without unreasonably delay.
[136] It was further
submitted that the NPA was under an obligation from the moment that
Mr Pikoli decided to indict
Mr Zuma to ensure that his right was
protected and/or given effect to. He submitted that by 20 June 2005
the NPA was not in a position
to commence and conclude the trial
without unreasonable delay. He submitted that after Mr Pikoli had
taken the decision to prosecute
Mr Zuma, Mr Pikoli deployed his
prosecution team to seek the postponement of the matter instead of
prosecuting him in accordance
with the terms agreed after the trial
was scheduled to commence on 31 July 2006.
[137] He argued that the
NPA could not use as an excuse, the litigation by Mr Zuma and Thint
on the legality of the
search warrants to prevent the NPA from
finalising its preparation for the trial in time for the scheduled
start on 31 July 2006
because Mr Pikoli did not heed the advice of
the prosecution team to delay his announcement. Instead, he stated
that he was convinced
that the NPA had sufficient evidence to
prosecute Mr Zuma. He refused to wait for the results of the further
investigation which
the prosecution team had requested and held a
strong view that it would be unfair to Mr Zuma to prolong the
uncertainty in circumstances
where he was already satisfied that
there was enough evidence to form an opinion about the prospects of a
successful prosecution.
[138] Counsel for Mr Zuma
argued that the delay which ensued pursuant to the Pikoli decision
should be blamed on the
NPA because the NPA ought to have taken all
the necessary steps to mitigate systemic delays but that its failure
to do so resulted
in the matter being struck off the roll. He
submitted that even at that stage the NPA was not sure, when it would
be ready to commence
with the trial and despite intimating that it
would be ready to commence the trial in October 2006, it only charged
Mr Zuma on
28 December 2007, which was two and a half years later.
[139] Mr Pikoli however
explains that he took the decision to institute the prosecution
against Mr Zuma based on his
assessment of admissible evidence and
the prospects of a successful prosecution. He states that on 16 June
2005 the prosecution
team submitted a memorandum to him recommending
Mr Zuma’s prosecution. Following the briefing by the
prosecution team on
17 June 2005 and discussions with senior advisers
at the NPA, as well as his own detailed consideration of the judgment
in the
Shaik trial and the prosecution team’s memorandum of 16
June 2005, he concluded that there was a reasonable prospect of a
successful prosecution of Mr Zuma. Consequently, he decided to
institute a prosecution against him.
[140] He explains that he
considered the possibility of delaying announcing his decision until
the DSO had completed
the sensitive further investigation, which the
prosecution team had indicated was still necessary. Mr Pikoli asserts
that he came
to the conclusion that it would be untenable because of
the following reasons:
(a) The
DSO’s investigation and the subsequent prosecution and
conviction of Mr Shaik and the
Nkobi group companies had elicited
huge media and public interest;
(b)
There was intense speculation about Mr Zuma’s political future
and the prospects of criminal
charges being brought against him,
which had been heightened by Mr Mbeki’s decision to dismiss him
as Deputy President of
the country;
(c)
He considered his decision to prosecute Mr Zuma to be one of national
importance with
the potential to affect foreign governments’
perception of South Africa and possibly even the economy;
(d) Mr
Zuma had been making repeated calls to ‘have his day in court’;
(e) It
would be unfair to Mr Zuma to prolong the uncertainty in
circumstances in which he was already
satisfied that there was enough
evidence to form an opinion about the prospects of a successful
prosecution; and
(f)
That it would be neither in the interests of justice nor in the
public interest to prolong
the speculation by delaying the
announcement of his decision.
[141] As stated, the
August 2005 search warrants executed by the NPA as foreshadowed in
para 55 above were challenged
by Mr Zuma. The failed challenges to
the warrants and their execution delayed the prosecution from August
2005 until the CC handed
down its judgment on 31 July 2008. In as
much as the parties who challenged the search warrants were within
their rights to do
so, we hold the view that it was a prudent
decision on the part of the NPA to await the outcome of these
challenges to seek clarity
on whether the NPA could access and use
the documents obtained in the ensuing searches without risking or
infringing any fair trial
rights of Mr Zuma or Thales. It was also
important for the NPA to await the outcome of the Shaik appeal, as it
would definitely
have an impact on Mr Zuma’s prosecution. Any
delay during this period is regarded as systemic and both parties are
equally
liable as they both participated in the litigation leading to
the delay. As such, it is not open to Mr Zuma to complain about the
delay.
The spy tapes
[142] Counsel for Mr Zuma
contended that the spy tapes are conclusive that the investigation
and prosecution of Mr Zuma
were manipulated to suit external
political machinations. It was submitted that the conduct in question
constitutes a flagrant
disregard of the Constitution and the most
sacrosanct principle of its very existence. He pointed out that s 32
of the NPA Act
requires prosecutors to act impartially and exercise,
carry out or perform their functions in good faith and without fear,
favour
or prejudice and subject only to the Constitution and the law.
He submitted that Mr McCarthy had exercised his powers not for
legitimate
reasons but for political ends and other irrelevant
considerations and that, his conduct was unlawful and improper, and
was not
independent but was influenced by persons outside the NPA.
[143]
As aptly pointed out by the SCA in
Zuma
v Democratic Alliance & others
,
[71]
the Mpshe decision
to discontinue the prosecution of Mr Zuma was driven principally, if
not exclusively, by what he considered to
be Mr McCarthy’s
abuse of prosecution process in relation to the timing of the service
of the indictment. The recording of
telephone calls between Messrs
McCarthy and Ngcuka were central to the Mpshe decision to discontinue
the prosecution. Mr Mpshe
considered the spy tapes to be crucial in
that they reflected a manipulation of the process for ulterior
purposes. The SCA concluded
pertinently 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 on the case
against Mr Zuma or the merits of the
prosecution itself’.
[72]
Crucially, Mr Zuma
conceded and the SCA found in the DA review appeal that Mr Mpshe’s
decision to withdraw the charges was
irrational.
[144]
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
[73]
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. The same can be said about
Thales.
[145]
With regard to Mr McCarthy’s alleged motive in relation to the
timing of the service of the indictment,
the SCA
[74]
neatly summed up
the position on the issue as follows:
‘
Even
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.
’
(Our
emphasis.)
Timing of the service of the
indictment does not impact on the strength of the State’s case
against Mr Zuma and the prosecution
of the case. As the NPA and Mr
Zuma formed common cause in opposing the DA review application, the
whole period between April 2009
to October 2017 cannot be termed as
unreasonable as they were both complicit in their actions.
The Browse Mole investigation
[146] The contention
advanced on behalf of Mr Zuma under this heading is that the Browse
Mole investigation lends credence
to his complaint that his
prosecution is politically motivated. It was submitted that the
Browse Mole investigation clearly demonstrates
that the DSO and/or Mr
McCarthy was hell-bent on finding anything against Mr Zuma at all
costs in order to secure his conviction.
Furthermore, so went the
argument, it could not be seriously contended that the investigation
into corruption allegations by Mr
McCarthy were not conducted by the
investigation team when the lead investigator, Mr McCarthy, was
solely responsible for that
investigation. According to Mr Zuma’s
counsel, if Mr Pikoli believed that Mr McCarthy had the authority to
investigate lawfully
the corruption charges against Mr Zuma by
obtaining what Mr Pikoli refers to as raw intelligence, he would not
have ordered Mr
McCarthy to stop the Browse Mole investigation and
triggered an investigation into the matter. It was submitted that
this reaction
on the part of Mr Pikoli leads to the inescapable
conclusion that the Browse Mole report was not produced for
legitimate prosecutorial
purposes but as part and parcel of a smear
campaign intended to damage Mr Zuma’s political standing.
[147]
In his affidavit, Mr Pikoli has given a detailed account of the
events leading up to the compilation of the Browse
Mole report. He
explained that following the leaking of the report, he and the DSO
co-operated with the ensuing investigation by
the director-general of
the departments represented on the National Security Council
(Cluster). He considered that the involvement
of the DSO in the
investigation fell within its legal mandate to gather, keep and
analyse information relating to criminal activities
committed in an
organised fashion in terms of s 7(1)
(a)
(ii)
of the NPA Act.
[75]
He pointed out that
the contents of the Browse Mole report had nothing to do with and
played no part in the investigation and prosecution
of Mr Zuma and
Thales, and that during his time as the NDPP, it was not handed to
the investigators and prosecutors handling the
investigation and
prosecution of this case. Both Mr Downer and Mr Du Plooy confirmed
his version that the Browse Mole report was
never given to them
before and after his suspension.
[148]
In the DA review application,
[76]
the full court
found and the SCA
[77]
confirmed, that
references by Mr Hofmeyr to Mr McCarthy’s conduct in relation
to the Browse Mole report were considered to
be diversionary and
irrelevant as they were unconnected to the prosecution or the service
of the indictment. The full court also
held that there was no
rational link between Mr McCarthy’s alleged conduct and Mr
Mpshe’s decision to discontinue the
prosecution. We align
ourselves with this view. As concisely stated in
National
Director of Public Prosecutions v Zuma
[78]
above:
‘
A
prosecution is not wrongful merely because it is brought for an
improper purpose. It will only be wrongful if, in addition,
reasonable
and probable grounds for prosecuting are absent, something
not alleged by Mr Zuma and which, in any event, can only be
determined
once criminal proceedings have been concluded.’
(Footnotes omitted.)
Mr Mpshe’s 2009 decision
[149] After having
instituted a prosecution of Mr Zuma in December 2007, Mr Mpshe
publicly announced on 6 April 2009
that he had decided to withdraw
the charges against Mr Zuma. He explained that the spy tapes had
persuaded him that Mr Zuma’s
prosecution was irremediably
affected by Mr McCarthy’s ulterior political motives. Counsel
for Mr Zuma contended that the
statement by Mr Mpshe was the clearest
indication that the NPA itself has acknowledged that its conduct,
through Mr McCarthy, constituted
an egregious violation of the
Constitution, the NPA Act and the prosecution policy. The hurdle
besetting Mr Zuma on this submission
is that Mr Zuma conceded in the
DA review appeal at the SCA, that Mr Mpshe’s decision to
withdraw the charges against him
was irrational and that a rational
decision needed to be made. In that judgment at para 80 the court
held that 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. In our view, no
case has been made before us that
Mr Mpshe’s decision to initially charge Mr Zuma was in anyway
politically motivated. Accordingly,
the decision of the SCA in the DA
review application paved the way for Mr Zuma to have his day in court
something, which he is
alleged to have expressed.
[150] The seriousness of
the offences that Mr Zuma is facing outweighs any prejudice, which he
claims he will suffer
if the trial proceeds. Furthermore, the
reputational harm, which he claims to have suffered, goes hand in
hand with being charged.
In any event, this does not seem to have
prevented him from ascending to the highest office in the country,
being the President
of the Republic.
[151]
We now turn to the other issues raised by Thales in its application.
Thales, being a corporate company is just
as much an accused person
as accused 1, Mr Zuma. Corporate criminal liability is recognised in
our criminal law and plays an integral
part in combating bribery and
organised crime in South Africa committed by corporate bodies.
Counsel for Thales has suggested to
us that we ought to draw a
distinction between Thales and Mr Zuma in asserting their rights. We
will draw that distinction only
in as much as it is supported by the
facts relating to each of the accused not based on their legal
persona.
[79]
[152] The delays and the
reasons during the period 24 August 2001 to 16 March 2018 were set
out in the historical chronology
above. The circumstances relating to
Thales’ escaping from the initial prosecution and the benefit
it had received from Mpshe’s
decision to withdraw has been
dealt with in detail.
[153] Mr Downer’s
answering affidavit for the State in the application by Mr Zuma
relays the chronological order
in detail of the events over the
period of September 1999 to 30 November 2018.
[80]
[154]
We are cognisant of the SCA’s caution in
McCarthy
v Additional Magistrate, Johannesburg
[81]
where the SCA relied on the decision
of
US v Trammell
:
[82]
‘
Vague
and conclusory allegations of prejudice resulting from the passage of
time and the absence of witnesses are insufficient to
constitute a
showing of prejudice. Defendant must show definite and not
speculative prejudice, and in what specific manner missing
witnesses
would have aided the defense.
United
State
v
Jenkins
,
[1983] USCA10 50
;
701 F, 2d 850
, 855 (10th Cir) 1983.’
[155] Thales has argued
that because the NDPP decided to pursue the prosecution against Mr
Zuma, it decided to pursue
the prosecution against Mr Zuma’s
erstwhile co-accused too. According to Thales, there has been no
special reason that legitimately
supports the NDPP’s decision
to re-instate the prosecution. It complains that it would suffer
significant trial prejudice
since potential witnesses have, either
moved on, will not return to South Africa to testify or have become
unavailable to do so
due to ill health. In addition, it was submitted
that Thales no longer has access to many documents and others records
that might
have assisted it in its defence. Thales’ application
for permanent stay of the prosecution has been opposed by the State
in that Thales has not established that its trial would be
substantially unfair or that there is any justification that warrants
such a radical remedy of a stay of the proceedings.
[156]
This court accepts that there was a delay in the prosecution of
Thales, but we are not satisfied that the delay
would result in trial
prejudice. As has been stated earlier in this judgment and as held in
Sanderson
,
a stay of prosecution can only be granted in the instance of trial
prejudice. In the absence of any extraordinary circumstance
favouring
an order of a stay, which was not established in Thales’
affidavits, we are drive to conclude that Thales’
claim for a
stay must fail.
[83]
Whilst Thales
claims that it will be prejudiced in its trial as a result of the
non-availability of witnesses, we are not satisfied
that this will be
the case as Ms Guerrier for instance, who has been with Thales since
the inception of the investigations is still
referred to as the vice
president of Thales in this application. The same applies to Mr
Driman, who is also still the current attorney
of record.
Furthermore, whilst a claim has been made that Mr Moynot is alleged
to be suffering from Alzheimer’s, there was
no medical evidence
to support this averment. To conclude on this ground, even if there
had been a delay in recharging Thales,
they cannot be afforded the
relief sought.
Thales’ challenge to Mr
Abrahams’ decision
[157]
At the heart of Thales’ challenges is the decision of Mr
Abrahams to re-instate the prosecution against
it on 16 March 2018.
Thales averred that the decision was inconsistent with the
Constitution and invalid. The decision was informed
inter alia by the
decision of the SCA in October 2017 when the court ruled that Mr
Mpshe’s decision in 2009 to withdraw the
charges against
Thales’ co-accused, Mr Zuma, was unlawful and had to be set
aside.
[84]
It is common cause
that Thales did not participate or play any role in the litigation in
2017. Earlier in this judgment, we referred
to the fact that Thales
initially misled the NPA about its willingness to co-operate in the
prosecution of Mr Shaik who was accused
and convicted of bribing Mr
Zuma. Based on its initial agreement to co-operate it escaped
prosecution and the charges were withdrawn.
[158] In order to
understand the discretion exercised by the NDPP for withdrawing the
charges against Thales, it is
necessary to state the facts that
formed the basis of the decision which initially was exercised by Mr
Ngcuka. It is clear that
the NDPP was mindful of criticism that might
follow after a decision was made to proceed against the alleged
corruptors and not
the alleged corruptee (Mr Zuma). Mr Ngcuka stated
the following in his affidavit:
‘
69.
Aside from Dr Maduna and me, those present were the Thales delegation
comprising Mr Driman, a
director of the local Thales companies Pierre
Moynot, the attorney of record of the Thales accused in the
then-pending proceedings
Ajay Sooklal and an in-house lawyer from
Thales Group in France Christine Guerrier (Guerrier) (who I see is
now the deponent to
Thales’ application for a permanent stay of
prosecution in the present matter).
70.
During the meeting the Thales delegation
said that they were
willing to co-operate and, as Dr Maduna and I accepted their
bona
fides
, it was agreed that they would contact my office to
discuss my parameters for their co-operation.
71.
On 19 April 2004 Mr McCarthy and I met with Adv Naidu (who was now
acting for Thales), Mr
Driman and Ms Guerrier. The meeting resulted
in an agreement, which was recorded in a letter by me to Naidu
delivered to him later
that day. In the letter I confirmed that if Mr
Thétard made an affidavit to the effect that he was the author
of the encrypted
fax, the NPA would retract two warrants of arrest
against Mr Thétard and what (I then thought) were then current
subpoenas
under section 28 of the NPA Act against him, and withdraw
the prosecution against accused 11 in the Shaik trial (i.e, Thint
(Pty)
Ltd).
72.
I should add that the idea was that Mr Thétard’s making
of the affidavit would
be accepted by the NPA as proof of Thales’s
bona fides
and would lay the basis for further discussions
with Thales and consultations with Mr Thétard aimed at his
testifying in
the criminal trial if that became necessary, in
exchange for which he would be formally indemnified should he give
satisfactory
evidence and the NPA would withdraw the prosecution
against accused Thomson (Pty).
73.
On 20 April 2004 Mr Thétard made an affidavit confirming that
he was the author of
the encrypted fax, which Adv Naidu then
forwarded to me.
74.
On 4 May 2004 I wrote to Adv Naidu thanking him for the copy of the
affidavit from Mr Thétard
in which Mr Thétard confirmed
that he was the author of the encrypted fax. I said that as a result,
the State would withdraw
the charge against Thint (Pty) Ltd in the
Shaik trial on the date of next appearance and that I had instructed
the investigating
team to withdraw the warrants and subpoenas against
Mr Thétard. Finally I informed Adv Naidu that provided Mr
Thétard
submitted to questioning by the prosecuting advocates
and was prepared to testify in the criminal trial should it become
necessary,
the prosecuting advocates would provide him (Adv Naidu)
with the relevant documents to assist him in further consultations.
75.
The warrants of Mr Thétard’s arrest were cancelled on 17
May 2004.
76.
On 10 May 2004 however Mr Thétard made a further affidavit,
which had not been solicited
by the South Africa authorities. The NPA
received it on 22 May 2004. In this affidavit Mr Thétard said,
amongst other things:
that the encrypted fax was ‘
a rough
draft of a document which I intended to record my thoughts on
separate issues in a manner which was not only disjointed
but also
lacked circumspection’
; that he had never faxed the
document or directed that it be faxed but rather crumpled it up and
thrown it in a waste paper basket
from where it was possibly
retrieved and handed to the State; that he refused to be interviewed
or to testify in SA or any other
country outside France; but
that he was prepared to be interviewed in France by Mr McCarthy and
me on the issues described
in the affidavit.
77.
The prosecuting team and I regarded the main assertions in this
affidavit about the encrypted fax as untruthful and unsolicited and
unheralded production as a cynical manoeuvre aimed at disrupting the
prosecution in the Shaik trial and discrediting the encrypted
fax.
78.
…
79.
…
80.
On 21 June 2004 Mr Diplall wrote to me saying that there was no real
reason to wait until
11 December 2004 (the date of the next
appearance in the Shaik trial) for the withdrawal of the charge
against the accused Thint
(Pty) Ltd and proposing that the
prosecution do all things necessary to set the matter down in the
High Court in the interim for
the purposes of withdrawing the charges
against Thint (Pty) Ltd and postponing for the trial on 11 October
2004.
81.
On 1 July 2004 Mr Diplall wrote to me again, refusing my offer in his
letter of 8 June 2004.
Mr Diplall gave the following reasons, which I
and the others at the NPA involved with this matter regarded as
insincere. He said
that my offer amounted to a circumvention of the
provisions of the ICCMA; the offer my amount to a contravention of
‘
French law and practice concerning the furnishing of
evidence that may be used in a foreign court’
; and my
proposed indemnity of Mr Thétard implied that the NPA was
still investigating companies in the Thales group, including
Thint
(Pty) Ltd, despite the undertaking to withdraw charges against Thint
(Pty) Ltd. Mr Diplall said that Mr Thétard was
still willing
to submit to an interview with Mr McCarthy and me in France, as
proposed in his affidavit of 10 May 2004.
82.
Upon receipt of this letter I and others at the NPA involved with
this matter concluded
that Thales was negotiating in bad faith and no
good purpose would be served by pushing the negotiations about a
possible indemnity
any further.
83.
Despite reaching this conclusion, we resorted to honour the
agreement that I had concluded with Adv Naidu, i.e. to withdraw the
charges against Thint (Pty) Ltd when Shaik trial commenced on 11
October 2004
. Aside from the fact that I had agreed to do so,
there were pragmatic factors which led the NPA sticking to the
original agreement
despite Thales’s conduct in the intervening
period. Those included that Shaik and his related companies,
practically speaking,
were the main focus of the prosecution at that
stage; French law did not permit Mr Thétard, as a French
citizen who had
fled to and remained in France, to be extradited to
South Africa to stand trial; and the prosecution team was concerned
about the
trial being delayed by possible arguments by Thint (Pty)
Ltd to the effect that its joinder as an accused was a misjoinder and
that Mr Shaik (who was a director of Thint (Pty) Ltd) should not be
its nominal representative in terms of
s332
of the
Criminal Procedure
Act.
84.
On
5 July 2004 Mr McCarthy wrote to Mr Diplall in response to the
letters’ letter of 21 against Thint (Pty) Ltd in the Shaik
trial would only be withdrawn on the date of the next court
appearance (i.e. October 2004) because the prosecution had been
unable
to arrange the requested earlier appearance.’
[85]
(Our emphasis.)
What
is evident from Mr Ngcuka’s affidavit is that the NPA honoured
the undertaking it had with Thales’ legal team.
[86]
[159] The focus of the
attack on Mr Abrahams’ decision to re-institute the prosecution
against Thales is that
the NPA has never alleged that the earlier
decision to withdraw charges was wrong and unlawful. In our view,
Thales fails to understand
the rationale for withdrawing the charges
in 2004 as well as in 2009.
Thales’ review application
[160]
Thales has argued that the NDPP does not have a general power to
institute a prosecution other than the powers
in terms of s 22(9) of
the NPA Act. It has been submitted by Thales that the Constitution
vests approval power to institute and
conduct prosecutions with the
DPP and that the NDPP lacks the power to institute and conduct
prosecutions generally. In our view
this submission is not only
extremely narrow but without merit. The NPA’s power to
institute criminal prosecutions is derived
from s 179(2) of the
Constitution. The SCA in
National
Director of Public Prosecutions v Zuma
[87]
decided that ‘[t]he
power to make prosecutorial decisions and to review them flows from
[s 179(2) of the Constitution]’.
In addition, s 22(1) of the
NPA Act specifically emphasises that the NDPP has to exercise the
NPA’s prosecutorial powers.
[161]
Accordingly, s 179(2) of the Constitution and s 22(1) of the NPA Act
empower the NDPP to decide on matters of
prosecution, which includes
the power to re-institute prosecution.
[88]
In
National
Director of Public Prosecutions v Zuma
,
[89]
the SCA considered
the origin and scope of the NDPP’s powers to make prosecutorial
decisions and the court held that they
are derived from s 179(2) of
the Constitution:
‘
Section
179(2) is the empowering provision. It empowers the NPA to institute
criminal proceedings, and to carry out “any necessary
functions
incidental to instituting criminal proceedings”. The power to
make prosecutorial decisions and to review them flows
from this. If
it were necessary specially to empower any member of the NPA to make
such decisions and to revisit them, one would
have expected the
Constitution to have said so.’ (Footnote omitted.)
[162]
Thales interprets s 22(9) of the NPA Act as a provision that
restricts the powers exercised by the NDPP.
[90]
In our view, the
section does not require of the NDPP to physically conduct each
prosecution in South Africa in person. It means
what it says, that
the NDPP has the power to exercise prosecutorial functions and to
carry out functions related to criminal proceedings.
[163]
It is necessary to closely examine and interpret the provisions in
the NPA Act that empowers the NDPP to exercise
its powers, duties and
functions. The SCA confirmed the approach to be followed in
interpreting a statute in
KwaZulu-Natal
Bookmakers’ Society v Phumelela Gaming and Leisure Ltd.
[91]
It decided that the
interpretation as set out in
Cool
Ideas 1186 CC v Hubbard & another
[92]
must be followed:
‘
A
fundamental tenet of statutory interpretation is that the words in a
statute must be given their ordinary grammatical meaning,
unless to
do so would result in an absurdity. There are three important
interrelated riders to this general principle, namely:
(a)
that
statutory provisions should always be interpreted purposively;
(b)
the
relevant statutory provision must be properly contextualised; and
(c)
all
statutes must be construed consistently with the Constitution, that
is, where reasonably possible, legislative provisions ought
to be
interpreted to preserve their constitutional validity.’
(Footnotes omitted.)
[164]
The context in which the NPA Act was passed included the
consideration of the previous legislation that regulated
the
prosecution service in South Africa, namely the Attorney-General Act
92 of 1992. In terms of that Act, Attorneys-General enjoyed
absolute
independence and were accountable to Parliament in a limited
sense.
[93]
The predecessor to
the NPA Act was not positively viewed by all in the country. The ANC,
the majority party in the Constitutional
Assembly, supported a
greater constitutional guarantee and the result was the adoption of s
179 of the Constitution. The constitutionality
of s 179 was
challenged on the grounds that it did not comply with the
constitutional principle, which required a separation of
powers
between the legislature, executive and judiciary. The CC did not
uphold this objection in
Ex
Parte Chairperson of the Constitutional Assembly: in re certification
of the Constitution of the Republic of South Africa, 1996.
[94]
The CC held that
the prosecuting authority was not part of the judiciary and that
Constitutional Principle VI was not relevant to
the challenge. The
court, however, noted at para 146 that s 179(4), which provides that
legislation had to ensure that the prosecuting
authority exercises
its functions without fear, favour or prejudice, was a constitutional
guarantee of prosecutorial independence.
[165]
What followed subsequently was the enactment of legislation that gave
effect to the prosecutorial scheme as sketched
by s 179 of the
Constitution. The NPA Act was passed in 1998 and came into operation
on 16 October 1998. The NPA Act introduced
a NDPP who had overall
powers to direct prosecutions throughout the country.
[95]
The NPA Act does
not restrict the powers of the NDPP but makes clear that the NDPP is
not only authorised to manage and control
the NPA, but is also
responsible for all criminal prosecutions. Prosecutions are subject
to the NDPP’s control. The powers
of the NDPP as spelt out in
the NPA Act follow closely the detailed requirements of s 179 of the
Constitution. For example, s 179(5)
(d)
provides
inter alia that the NDPP may in certain circumstances intervene in or
review the decisions of the DPPs. It defines the
NDPP’s powers
of intervention and does not limit the NDPP’s prosecutorial
powers.
[166]
The legislative history of the various pieces of legislation that
governed prosecution in South Africa is not
only important in
deciding the context of the legislation but necessary to interpret
the provisions of the NPA Act. In
Joosub
Ltd v Ismail
[96]
the court held that
the legislative history may be used as an aid in its
interpretation.
[97]
The submission by
Thales that s 179(2) of the Constitution and s 22(1) of the NPA Act
do not grant the NDPP authority over the prosecutorial
members under
his/her authority, is flawed and not supported by either the
contextual or purposive interpretation of the legislation.
[167] We are satisfied
that Mr Abrahams had the power in terms of s 179(2) of the
Constitution and s 22(1) of the NPA
Act to make the decision on
re-instituting the prosecution against Thales.
Was the decision of Mr Abrahams in
breach of the NPA’s prosecution policy?
[168]
Another string from Thales’ bow in challenging Mr Abrahams’
decision as irregular is the non-compliance
with the
prosecutorial policy, more specifically that Mr Abrahams had breached
para 4B of the policy.
[98]
Paragraph 4B of the
policy reads:
‘
There
may, however, be
special
reasons
why
a prosecutor will review a particular case and restart the
prosecution. These include-
·
an
indication that the initial decision was clearly wrong and should not
be allowed to stand;
·
an
instance where a case has not been proceeded with in order to allow
the police to gather and collate further evidence, in which
case the
prosecutor should normally have informed the accused person that the
prosecution might well start again; and
·
a
situation where a prosecution has not been proceeded with due to the
lack of evidence, but where sufficient incriminating evidence
has
since come to light.’ (Our emphasis.)
[169]
Plainly what is required as per the policy is that “special
reasons” ought to exist for a review of
a decision and the
restart of the prosecution. The examples listed in terms of the
policy are not an exhaustive list, or limited
to only those listed.
The policy gives a description of some special reasons. What is
required is an examination of the reason
for the decision and whether
the reason qualifies as a special reason. The word ‘special’
is defined in the
Shorter
Oxford English Dictionary
on
historical principles
[99]
inter alia as ‘of
such a kind as to exceed or excel in some way that which is usual or
common; exceptional in character, quality
or degree’. In our
view, the decision of whether a reason is special or not will be
determined on the facts of each case.
[170] In order to decide
on any alleged irregularity committed by Mr Abrahams it is incumbent
on this court to consider
his conduct in relation to the
re-institution of prosecution against Thales. The State in its heads
of argument has submitted that
the following reasons relied upon by
Mr Abrahams qualify as special reasons:
‘
560.1.
Mr Mpshe decided in April 2009 to withdraw the prosecution of Mr
Zuma.
560.2.
Pursuant to his withdrawal of the prosecution of Mr Zuma, Mr Mpshe
also withdrew the prosecution of Thales. He did so only
because he
believed that he had duly and validly withdrawn the prosecution of Mr
Zuma and that it was not appropriate to proceed
against Thales
without him.
560.3.
Shortly after Mr Mpshe’s decisions to withdraw the
prosecutions, the DA launched its Spy Tapes application to review
and
set aside Mr Mpshe’s decision to withdraw the prosecution of Mr
Zuma. Mr Zuma and Thales were accordingly put on notice
that the
reprieve they received from Mr Mpshe may yet be reversed.
560.4.
The SCA finally set aside Mr Mpshe’s decision to withdraw the
prosecution of Mr Zuma in its Spy Tapes judgment in October
2017. The
effect of the judgment was to invalidate Mr Mpshe’s decision to
withdraw the prosecution of Mr Zuma. His prosecution
was thus
reinstated.
560.5.
This meant that the premise upon which Mr Mpshe had withdrawn the
charges against Thales turned out to be false. He had only
withdrawn
the charges against Thales because he believed that he had validly
withdrawn the prosecution of Mr Zuma. But that turned
out not to be
so. It means that the very basis of his decision to withdraw the
charges against Thales turned out to be false.
560.6.
Mr Abrahams accordingly decided to restart the prosecution of Thales
so as to restore the
status
quo ante
.’
[100]
[171] The NPA has
submitted that the aforesaid circumstances fall within the examples
listed in para 4B of the policy,
specifically the first one. In
addition, it was argued that the reasons listed by Mr Abrahams in any
event qualify as ‘special
reasons’.
[172]
Thales disagrees with the submission and contends that the aforegoing
reasons are not special. In our view, the
reasons are special in
comparison to other cases, which should be the yardstick for
measuring a decision. The NDPP assessed the
facts and since the Mpshe
decision was wrong and irrational, he had no choice but to
re-institute the prosecution. Thales further
argued that the spy tape
judgment does not concern Thales since it was not cited as a party
thereto and the relief sought by the
DA related only to Mr Zuma. Once
it was found that the withdrawal of charges against Mr Zuma was
unlawful and invalidated retrospectively,
it also followed that a
decision had to be made about the co-accused, Thales. Thales received
beneficial treatment related to Mpshe’s
irrational and unlawful
decision, and the decision of Mpshe in relation to Thales was based
on a false premise. In fact, the prosecution
policy requires of a
prosecutor to prosecute once there is sufficient evidence to provide
a reasonable prospect of success, unless
public interest demands
otherwise.
[101]
[173] Thales further
submitted that it can never be a special reason for an accused to be
prosecuted when its prosecution
depends on another accused being
prosecuted. Thales’ contention is not jurisprudentially sound.
It ignores the right of an
accused person to be granted a
procedurally fair process. Thales as a co-accused, appearing on
charges of corruption and racketeering,
received the benefit that
flowed from the wrongful withdrawal of the charges by Mr Mpshe
against Mr Zuma. Thales in its submissions
failed to appreciate the
nature of the said criminal offences that address the criminal
conduct between two or more people. It
would have been unjust if not
unfair to proceed with the prosecution against Thales whilst the said
charges were withdrawn against
Mr Zuma, the alleged corruptee. In
fact, a decision to proceed with the prosecution against Thales but
not Mr Zuma would in all
probability have been strongly challenged on
the ground of irrationality, had the NDPP not withdrawn the charges
previously against
Thales.
[174] Thales has
submitted that Mr Abrahams’ decision to re-institute the
prosecution against it, is contained in the letter
written by Mr
Abrahams on 23 July 2018 and that the reasons as per the letter are
the only reasons that the NDPP may rely upon
to justify the exercise
of his prosecutorial discretion. These reasons they submit are
irrational. On the issue of rationality,
it is necessary to repeat
the decisions of the SCA in clarifying the applicable test regarding
legality. In
National
Director of Public Prosecutions & others v Freedom Under
Law
,
[102]
the court confirmed
that decisions not to prosecute are excluded from a review under the
PAJA. It should be reviewed on the grounds
of legality and
rationality.
[103]
[175]
Any enquiry into the principle of legality must start with the
recognition of the Constitution as the supreme
law.
[104]
The history of the
principle has been well documented in our jurisprudence. The origin
was explained in
Fedsure
Life Assurance Ltd & others v Greater Johannesburg Transitional
Metropolitan Council & others
as
follows:
[105]
‘
There
is of course no doubt that the common-law principles of
ultra
vires
remain
under the new constitutional order. However, they are underpinned
(and supplemented where necessary) by a constitutional
principle of
legality. In relation to “administrative action” the
principle of legality is enshrined in s 24
(a).
In
relation to legislation and to executive acts that do not constitute
“administrative action”,
the
principle of legality is necessarily implicit in the Constitution.
Therefore, the question whether the various local governments
acted
intra
vires
in
this case remains a constitutional question
.’
(Our emphasis.)
[176]
In
Pharmaceutical
Manufacturers Association of SA & another: In re Ex Parte
President of the Republic of South Africa & others
,
[106]
the CC held that:
‘
Rationality
in this sense is a minimum threshold requirement applicable to the
exercise of all public power by members of the Executive
and other
functionaries. Action that fails to pass this threshold is
inconsistent with the requirements of our Constitution and
therefore
unlawful. The setting of this standard does not mean that the Courts
can or should substitute their opinions as to what
is appropriate for
the opinions of those in whom the power has been vested. As long as
the purpose sought to be achieved by the
exercise of public power is
within the authority of the functionary, and as long as the
functionary’s decision, viewed objectively,
is rational, a
Court cannot interfere with the decision simply because it disagrees
with it, or considers that the power was exercised
inappropriately. A
decision that is objectively irrational is likely to be made only
rarely but, if this does occur, a Court has
the power to intervene
and set aside the irrational decision. This is such a case. Indeed,
no rational basis for the decision was
suggested. On the contrary,
the President himself approached the Court urgently, with the support
of the Minister of Health and
the professional associations most
directly affected by the Act, contending that a fundamental error had
been made and that the
entire regulatory structure relating to
medicines and the control of medicines had as a result been rendered
unworkable. In such
circumstances, it would be strange indeed if a
Court did not have the power to set aside a decision that is so
clearly irrational.’
(Footnote omitted)
[177]
The minimum threshold therefore is the requirement of rationality for
the exercise of public power. It is also
trite that decisions or
conduct that fail to comply with the principle of legality are not
constitutional.
[107]
The CC in
Masetlha
v President of the Republic South Africa & another
held that in the
case of challenges of legality, the scrutiny of the rationality
review would depend on the facts of each case.
[108]
[178]
In order to demonstrate to this court that the decision of Mr
Abrahams was irrational, it would, in our view,
be necessary for
Thales to show on a balance of probabilities that the decision to
prosecute it was wrong and not based on a thorough
rational
discretion being exercised.
[109]
The evidence
presented to this court was:
(a)
Mr Abrahams investigated whether the witnesses are all
available;
[110]
(b)
He listed the following reasons informing his decisions:
[111]
‘
80.1.
there were reasonable prospects of a successful prosecution against
the Thint companies. In this regard I should
mention that in addition
to the evaluation of the evidence against the Thint companies in the
prosecution team’s memorandum
of 23 February 2018 (annexure
‘
SKA
20’
hereto),
as appears from paragraph 6.1 of that memorandum the team had
provided to me and aligned itself with the evaluation of
the evidence
against Mr Zuma and the Thint companies in the former prosecution
teams memoranda of 16 June 2005 and 4 July 2005,
copies of which were
annexed and are attached hereto, marked ‘
SKA
24’
and
‘
SKA
25’
.
Before taking my decision,
I
carefully considered all of the three memoranda
;
80.2.
the prosecution of the Thint companies would not have been
discontinued but for Mr Mpshe SC’s invalid
decision to
terminate the prosecution against Mr Zuma;
80.3.
I wanted to restore the
status quo ante
the withdrawal of
charges against Mr Zuma and the Thint companies that had followed and
been based on Mr Mpshe SC’s invalid
decision.’ (Our
emphasis.)
[179] It is important for
purposes of the context in which Mr Abrahams made the decision to
quote in full from his letter
dated 25 July 2018:
‘
1.
Your representations, submitted via email, dated 6 June 2018, refer.
2.
After careful consideration of the matter, I am of the view that
there are reasonable
prospects of a successful prosecution against
your client.
3.
Your representations are thus unsuccessful.
4.
I have also requested the prosecuting team to provide me with their
views on
the prospects of preferring charges against your client in
terms of
section 5(b)
of the
Prevention and Combating of Corrupt
Activities Act, 12 of 2004
. In sub-count 2 of count 3.
5.
I trust you find same in order.’
[112]
[180]
In light of the aforegoing conduct demonstrated by Mr Abrahams, it
cannot be said that he had not grappled with
the decision of
re-instituting the prosecution against Thales nor can it be said that
he did not have rational reasons for prosecuting
Thales with Mr Zuma.
Not only did he consider the evidence relating to the charges, but
also the public interest in having the
matter prosecuted.
[113]
[181]
In
Bel
Porto School Governing Body & others v Premier, Western Cape, &
another
[114]
the CC held in
relation to the fairness of an administrative decision the following:
‘
[86]
The unfairness of a decision in itself has never been a ground for
review. Something more is required. The unfairness has to
be of
such a degree that an inference can be drawn from it that the person
who made the decision had erred in a respect that
would provide
grounds for review. That inference is not easily drawn.
[87]
The role of the Courts has always been to ensure that the
administrative process is conducted fairly and that decisions are
taken in accordance with the law and consistently with the
requirements of the controlling legislation. If these
requirements
are met, and if the decision is one that a reasonable
authority could make, Courts would not interfere with the decision.’
[182]
In
Law
Society of South Africa & others v Minister of Transport &
another
,
[115]
the court ruled
that fairness should not be an element of rationality. Moseneke DCJ
held:
‘
[T]he
applicants conflate the rationality and proportionality standards of
review. I have already remarked that
fairness
is not a requirement in the rationality enquiry
.
If the substance of the complaint is about the deprivation of
fundaments rights, it would be subject to the proportionality
requirements
of
s 36
and not mere rationality.
’
(Our
emphasis.)
[183] It cannot be said
that there is no rational connection between the decision to
re-institute and the prosecution
that followed against Thales or that
Mr Abrahams had erred in his appraisal of the evidence relating to
the prosecution or that
he was biased in making the decision. It is
clear that Mr Abrahams had been considering the prosecution’s
position in relation
to the charges over months as the events
unfolded. The decision relating to the two accused cannot simply be
dealt with in isolation.
Mr Zuma and Thales are co-accused and the
evidence to be adduced relates to both.
[184] Mr Abrahams made the
decision against Thales, being informed of the following:
‘
81.1.
I knew a lengthy period that had passed since the commission of the
offences of which they would be recharged;
81.2.
I knew the Thint companies were in no way responsible for the delay
since the charges against them were
withdrawn in 2009;
81.3.
I surmised that if the Thint companies were recharged then, like Mr
Zuma had just done, they could and probably
would make
representations urging the discontinuance of their prosecution; and
81.4.
I also thought if the Thint companies’ representations were
unsuccessful then, as I had little doubt
Mr Zuma would do, they could
and probably would bring an application in court for a permanent stay
of prosecution because of the
lengthy period that had passed since
the commission of the offences and possibly on other grounds as well
as such as the 2004 agreement
to withdraw the charges against Thint
(Pty) Ltd.’
[116]
[185] Thales had indeed
post the decision made representations on 6 June 2018 and 27 June
2018 to the prosecution team.
Despite the voluminous record that was
placed before us to make a decision regarding the legality of the
discretion exercised to
proceed with criminal charges against Thales,
the representations were not placed before us and do not form part of
the record.
This court was not favoured with the content of the
representations, but this is what Mr Abrahams said in relation to the
representations:
‘
I
considered the representations and the prosecution team’s
report and concluded that I agree with its recommendations. I
believed that Thales South Africa had a case to answer on merits and
the issues regarding delay, the availability of witnesses
etc. it had
raised in its representations should be aired and tested in open
court in the application for a stay of prosecution
it would doubtless
be bringing.’
[117]
[186] In our view, Mr
Abrahams’ decision is not tainted by an irregularity of any
kind that entitles Thales to
the relief sought in terms of prayers 1
and 2 of the notice of motion. He clearly observed the prosecution
policy and the policy
directives when he enquired about the
availability of the State witnesses, considered the strength of the
State’s case and
examined the facts on whether the State has a
reasonable prospect of success in prosecuting the two accused.
[118]
We conclude that his decision was
substantively and procedurally rational and lawful.
The NPA’s application for
condonation
[187] The NPA has applied
for an order condoning the late delivery of its answering affidavit
and extending the date
of such delivery from 1 March 2019 to 11 March
2019. In terms of the order of Madondo DJP of 30 November 2018, which
was granted
by agreement between the parties, the NPA’s
answering affidavit was due on 1 March 2019 but was only filed and
served on
11 March 2019.
[188] The attorney of
record for the NPA, Patrick Kevan (Mr Kevan) has deposed to an
affidavit in support of this application.
He has given three
principal reasons for the NPA’s lateness in filing and serving
its answering affidavit. The first reason
was that in the period
between 1 December 2018 and 7 January 2019 much of the available time
of the prosecution team and of the
NPA’s legal team was spent
searching for and considering the documents claimed by Mr Zuma in his
application. According to
Mr Kevan this was a lengthy process because
it entailed sifting through a large number of possible relevant
documents that were
in the possession of the NPA and to identify the
ones covered by Mr Zuma’s application, and then considering
each document
closely to determine whether there were any grounds on
which the NPA should refuse to disclose it or any part(s) of it. The
second
reason was that Mr Zuma’s papers are very voluminous,
and it took the NPA longer than it initially anticipated in
addressing
the contents of Mr Zuma’s papers and those of
Thales. The NPA prepared a detailed chronology of the relevant
events, which
span a lengthy period, and which applies equally to the
NPA’s answers to both applications. The work also included the
preparation
of two detailed affidavits for the NPA’s main
deponent, Mr Downer. The final reason was that there were numerous
difficulties
with annexures and indexes to Mr Zuma’s
affidavits, which Mr Kevan had to resolve with Mr Zuma’s
attorney.
[189] The NPA consented to
the dates by which Mr Zuma and Thales had to deliver their replying
papers and heads of argument,
being extended to 12 April 2019 and 30
April 2019 respectively. Although Mr Zuma had initially opposed the
application, at the
hearing of the matter his counsel informed the
court that such opposition was no longer persisted with and left the
matter in the
hands of the court.
[190] We have considered
the application for condonation of the late filing of the NPA’s
answering affidavit.
We hold the view that indeed, because the
papers, in particular Mr Zuma’s founding affidavit, are
voluminous and the matter
is complicated, the NPA has given
sufficient explanation for the delay. In the interests of justice,
the application for condonation
and extension of time for the
delivery of the NPA’s answering affidavit is granted.
The application of the NPA to
strike out in Mr Zuma’s main application
[191] The NPA brought an
application to strike out certain identified portions of Mr Zuma’s
replying affidavit
deposed on 1 April 2019 on the ground that those
identified portions are scandalous and/or vexatious, and further,
that if they
are not struck out, the NPA will be prejudiced. At the
hearing of the matter, this application was settled on the basis that
the
order was granted in terms of prayers 1 and 2 of the notice of
motion with no order as to costs.
Thales application to strike out
[192] Thales seeks to
strike out certain portions of the answering affidavit of Mr Downer
deposed to on 11 March 2019,
which refer to portions of the
affidavits filed by Mr Downer in Mr Zuma’s permanent stay
application. By letter dated 29
February 2019 the NPA indicated to
Thales that it intended to deliver a single answering affidavit
dealing with Thales and Mr Zuma’s
applications on the basis
that:
(a) The
applications are to be heard together;
(b) A
proper consideration of the allegations made by Thales and Mr Zuma
required a detailed chronology,
which would be set out in a single
main answering affidavit;
(c) Mr
Downer would refer where appropriate when responding to the
allegations in Thales and Mr Zuma’s
papers respectively
paragraph by paragraph;
(d) The
length of the founding and supplementary papers in both applications;
and
(e)
Numerous difficulties with certain annexures to Mr Zuma’s
founding affidavit.
[193] By letter dated 1
March 2019, Thales objected to the NPA’s intended approach and
asserted, inter alia, that
its application and that of Mr Zuma’s
are:
(a) To
be heard under different case numbers;
(b)
Seek different relief in substance and in form; and
(c)
Relate to different parties.
Thales indicated that it would be
prejudiced by the decision to deliver a single answering affidavit in
both applications.
[194] Nonetheless, on 11
March 2019 the NPA delivered a single answering affidavit, which
resulted in this application.
The application was opposed by the NPA.
Rule 6(15)
of the Uniform rules of court regulates the striking out
of the matter from an affidavit. It provides:
‘
The
court may on application order to be struck out from any affidavit
any matter which is scandalous, vexatious or irrelevant,
with an
appropriate order as to costs, including costs as between attorney
and client. The court may not grant the application
unless it is
satisfied that the applicant will be prejudice if the application is
not granted.’
[195] From the reading of
this rule it is apparent that two requirements must be satisfied
before an application to
strike out a matter from any affidavit
succeeds. The first requirement is that what is sought to be struck
out must be scandalous,
vexatious or irrelevant. The second is that
the court must be satisfied that if such matter was not struck out
the party seeking
such relief would be prejudiced.
[196] In para 6.1 of his
Thales answer, Mr Downer said his affidavit was accompanied by the
following further affidavits,
which together comprise the State’s
answering papers in the present application:
‘
6.1
an affidavit by me comprising the State’s main answering
affidavit in an application by the first accused in the criminal
proceedings, Jacob Gedleyihlekisa Zuma (‘Zuma’), for a
permanent stay of prosecution – the contents of the sections
of
my affidavit headed ‘Introduction’ and ‘Chronology
of Relevant Events’, but not the remainder, are relevant
to the
present application….’
Mr Downer thus incorporated two
chapters of his Zuma answer into his Thales answer. The first was the
introduction and the second
was the chronology.
[197] It seems to us that
it is at the level of the two requirements that Thales’ case
fails. We found it incomprehensible
why the introduction and
narration of the chronology of relevant events can be characterised
as irrelevant and vexatious. In our
view, the substance of narration
contained therein is relevant and useful in assessing the conduct of
the parties involved in these
applications. That aside, we are not
persuaded that Thales would suffer any prejudice if the allegations
contained in the impugned
paragraphs of Mr Downer’s affidavit
were not struck out. Importantly, the incorporation of portions of
the Downer Zuma answer
was the most convenient, efficient and
expeditious manner of dealing with the two applications because had
that not been done,
the court hearing these matters from 20 May 2019
onwards would have been unnecessarily burdened with approximately
1286 duplicated
pages in the Downer Thales answer. It follows
therefore that Thales’ striking out application falls to be
dismissed.
Application to admit new evidence
[198] At the twilight of
the hearing (on 24 May 2019), Mr Zuma brought an application seeking
orders in the following
terms:
(a)
Granting leave that the letter dated 22 March 2018 be admitted into
the record of proceedings
in the application for the permanent stay;
and
(b)
Directing that the NPA file with this court an affidavit by an
authorised person stating that
the NPA is not in possession of
documents and/or information relevant to the permanent stay
application.
On the face of it, the letter appears
to have been written by Mr Abrahams to the acting head: Directorate
of Priority Crime Investigation
– Lieutenant General Y Matakata
relating to investigations into alleged corruption in Durban Central
Cas 1941/08/2003. Lugisani
Daniel Mantsha (Mr Mantsha) who is the
attorney of record for Mr Zuma in these proceedings deposed to the
founding affidavit.
[199] Without providing
any details how he came to be in possession of this letter, Mr
Mantsha deposed that after the
existence of this letter was brought
to his attention, he addressed a letter dated 22 May 2019 to the
State Attorney in which he
sought to have a copy of this letter. By
letter of the same date, Mr Kevan turned down the request advising
him that the NPA had
provided all the documents it had found.
[200] Arising from Mr
Kevan’s response, it appeared to Mr Mantsha that the NPA was
not acting in line with its
obligation in relation to the
prosecutions. Consequently, he addressed another letter to Mr Kevan
reminding him that the NPA is
duty bound to provide any information
in its possession to assist this court. When the exchange of
correspondence did not yield
the desired results, Mr Zuma brought
this application seeking an order as foreshadowed in para 198 above.
[201] As to the relevance
of the letter, Mr Mantsha deposed that ‘the contents of the
letter are self-evidently
relevant if one has regard to the NPA’s
statement under oath and contentions by the NPA’s counsel in
regard to political
interference, manipulation and involvement in Mr
Zuma’s investigation and prosecution’.
[202] Mr Mantsha explained
the relevance of the second part of the order sought, that the NPA as
an organ of State has
a higher duty to be truthful, transparent and
to act in good faith at all times in the manner in which it conducts
matters on behalf
of the people of South Africa and at the expense of
the public purse.
[203] The NPA opposed the
application. As to the first part of the order sought, the NPA has
advanced three grounds.
The first ground is that the letter is a
confidential and privileged document relating to an ongoing police
investigation. The
second ground is that the contents of the letter
are irrelevant to Mr Zuma’s application for a permanent stay of
prosecution
as none of the matters referred by the NDPP to the DPCI
for investigation concern the prosecution of Mr Zuma. The third
ground
is that the letter recounts allegations made in an affidavit
by Mr Ajay Sooklal dated 16 November 2016 filed in the legal
proceedings,
which he brought in the Gauteng Division of the High
Court, Pretoria against, inter alia, Mr Zuma, both in his then
official capacity
as the President of the country and in his personal
capacity. The NPA contends that Mr Zuma has had ample time to raise
in his
papers in the present matter any of the allegations made by Mr
Sooklal in that affidavit which he considers relevant to his
application
for a permanent stay of prosecution. The NPA also
contends that Mr Zuma has indeed done so in paras 743 and 744 of his
founding
affidavit.
[204]
With regard to the second part of the order sought, the NPA also
opposed the granting of this order on three grounds.
The first ground
is that this amounts to the dramatic amendments of relief sought by
Mr Zuma in paras 2 and 3 of his notice of
motion, which was confined
to those of the documents sought in Mr Zuma’s letter of 24 July
2018, which he persisted in seeking
in his founding affidavit in the
main application. In this regard, the NPA contends that it has
provided Mr Zuma with all the documents
covered by this application
it could find. The second ground is that Mr Zuma gives no reason why,
at this very late hour, he seeks
dramatically to expand the documents
he needs.
[119]
The third ground is
that in any event, the order Mr Zuma is now seeking does not make
sense. He wants an affidavit from the NPA
to the effect that it is
not in possession of documents and/or information relevant to the
application for permanent stay of prosecution.
The NPA has in its
possession a host of information and documents of that sort.
[205] The court has a
discretion to admit the new evidence. However, several considerations
have a bearing on the exercise
of such discretion, for instance:
(a) The
reason why the evidence was not led timeously;
(b) The
degree of materiality of evidence;
(c) The
possibility that it may have been shaped to relieve the pinch of the
shoe;
(d) The
balance of prejudice, i.e. the prejudice to the applicant if the
application is refused,
and the prejudice to the respondent if it is
granted;
(e) The
stage which the particular litigation has reached;
(f)
The healing balm of an appropriate order as to costs;
(g)
The general need for finality in judicial proceedings; and
(h)
The appropriateness, or otherwise, in all circumstances, if visiting
the remissness of the attorney
upon the head of his client.
[120]
[206]
Though said in the context of admitting new evidence on appeal, the
words of the CC in
Rail
Commuters Action Group & others v Transnet Ltd t/a Metrorail &
others
[121]
are apt that courts
should exercise their power to admit new evidence sparingly and only
under exceptional circumstances. As to
the essential requirements,
which must be satisfied before such evidence is admitted, the CC
said:
‘
[s]uch
evidence must be weighty, material and to be believed.
In
addition, whether there is a reasonable explanation for its late
filing is an important factor. The existence of a substantial
dispute
of fact in relation to it will militate against its being
admitted.’
[122]
[207]
The insuperable difficulty facing Mr Zuma in relation to this letter
is that none of the matters referred by the
NDPP to the DPCI for
investigation concern Mr Zuma’s investigation or prosecution.
In any event, it seems to us that the
introduction of this letter was
an attempt by Mr Zuma to hark back to the issue of alleged motive for
his prosecution, which has
already been answered by the SCA in
National
Prosecuting Authority v Zuma.
[123]
What the answer
amounts to is this ‘motive behind the prosecution is
irrelevant’.
[208] With regard to the
second part of the order, it remains to point out that the order
sought in the notice of motion
was confined to those documents sought
in Mr Zuma’s letter of 24 July 2018 which he persisted in
seeking in his founding
affidavit. It is trite that in motion
proceedings the applicant is required to make his or her case in the
founding affidavit.
The basic requirement is also that the relief
sought has to be found in evidence supported by the facts set out in
the founding
affidavit. None of these is found in Mr Zuma’s
founding affidavit. In our view, the order sought is anchored on
unsound foundation.
Order
[209] In the result, the
following order is made:
1.
The NPA’s application for condonation of the late delivery of
its answering
affidavit and extension of such delivery from 1 March
2019 to 11 March 2019 is granted with no order as to costs.
2.
The NPA’s application to strike out parts of the replying
affidavit of
Jacob Gedleyihlekisa Zuma dated 1 April 2019 on the
grounds that they are scandalous and/or vexatious, and that they
constitute
impermissible new matter raised in reply is granted in
terms of prayers 1 and 2 of the notice of motion thereof with no
order as
to costs.
3.
The application brought by Thales South Africa (Pty) Ltd to strike
out certain
portions of the answering affidavit of William John
Downer dated 11 March 2019, which refer to portions of the affidavits
filed
by Mr Downer in Mr Zuma’s (Criminal Court) permanent stay
application is dismissed with costs to include those consequent
upon
employment of two counsel.
4.
The application brought by Jacob Gedleyihlekisa Zuma seeking leave to
enter the
letter dated 22 March 2018 with accompanying annexures into
the record of proceedings in the application for the permanent stay
is dismissed with costs such costs to include those consequent upon
employment of two counsel.
5.
The application brought by Jacob Gedleyihlekisa Zuma under case
number CCD30/2018
is dismissed with costs such costs to include those
consequent upon employment of two counsel.
6.
The application brought by Thales South Africa (Pty) Ltd under case
number D12763/2018
is dismissed with costs such costs to include
those consequent upon employment of two counsel.
Mnguni J
Steyn J
Poyo
Dlwati J
[1]
Zuma v Democratic Alliance &
others
2018 (1) SA 200
(SCA) para 3.
[2]
National Director of Public
Prosecutions v Zuma
2009
(2) SA 277 (SCA).
[3]
Zuma v Democratic Alliance &
others
above.
[4]
We shall henceforth refer to all
companies in the Thales Group South Africa (Pty) Ltd, formerly
Thomson-CSF Group of Companies
as Thales.
[5]
Ms Patricia de Lille is currently the
Minister of Public Works in the country’s sixth
administration.
[6]
Ms Guerrier has been authorised per
resolution passed by Thales on 18 April 2018. At the time, she
occupied the position of Vice
President, Dispute Resolution and
Litigation in Thales. See Thales’ application, vol 1 at 69,
annexure ‘G1’.
[7]
See
ss 332(1)
and (10) which are also
relevant.
Section
332(1)
of the CPA provides as follows:
‘
For
the purpose of imposing upon a corporate body criminal liability for
any offence, whether under any law or at common law-
(a)
any act performed,
with or without a particular intent, by or on instructions or with
permission, express or implied, given by
a director or servant of
that corporate body; and
(b)
the omission, with
or without a particular intent, of any act which ought to have been
but was not performed by or on instructions
given by a director or
servant of that corporate body,
in the exercise of his powers or in
the performance of his duties as such director or servant or in
furthering or endeavouring
to further the interests of that
corporate body, shall be deemed to have been performed (and with the
same intent, if any) by
that corporate body or, as the case may be,
to have been an omission (and with the same intent, if any) on the
part of that corporate
body.’
Section 332(10)
defines a director
as:
‘
In
this section the word “
director”
in relation to a
corporate body means any person who controls or governs that
corporate body or who is a member of a body or group
of persons
which controls or governs that corporate body or, where there is no
such body or group, who is a member of that corporate
body.’
[8]
Constitution of the Republic of South
Africa, 1996.
[9]
In 2011 a commission of enquiry,
chaired by Judge Seriti, a then judge of the Supreme Court of Appeal
was appointed to investigate
inter alia allegations of fraud and
corruption in the Arms Deal.
[10]
Mr Mosiuoa Lekota.
[11]
See
S
v Shaik & others
[2006] ZASCA 105
;
2007
(1) SA 240
(SCA) para 166. The encrypted fax reads as follows:
'AT
J
de J
C
R JP Perrier
Encrypted
fax
re:
J Z/S Shaik
Dear
Yan,
Following
our interview held on 30/9/00 with S Shaik in Durban and my
conversation held on 10/11/1999 with Mr JP Perrier in Paris,
I have
been able (at last) to meet JZ in Durban on 11th of this month,
during a private interview, in the presence of SS.
I
had asked SS to obtain from JZ a clear confirmation or failing which
an encoded declaration (the code had been defined by me),
in order
to validate the request by SS at the end of September 1999.
Which was done by JZ (in an encoded form).
May
I remind you that the two main objectives of the ''effort''
requested of Thomson are:
•
Protection
of Thomson CSF during the current investigations (Sitron)
•
Permanent
support of JZ for the future projects
Amount:
500k ZAR per annum (until the first payment of dividends by
ADS).Yours truly,'
[12]
The terms of reference specifically
included the solicitation, agreement to pay and undue payments
involving entities linked to
Thales.
[13]
Mr Downer has, since January 2001,
been involved in the prosecution team leading the NPA
investigations, which led to the corruption
charges against Mr Shaik
and the ten companies in the Nkobi group companies.
[14]
See annexure ‘NPA 23’,
vol 11 at 327
et seq
.
[15]
The advisory team comprised of Adv
Lynette Davids, Adv Lungisa Dyosi, Adv Rudolph Mastenbroek, Adv Saks
Mapona, Adv Leonard McCarthy,
Dr Silas Ramaile, Adv Sibongile
Mzinyathi and Adv Gerrie Nel.
[16]
Mr Shaik was also the director of
Thales South Africa.
[17]
We have observed that Mr Driman is
still the current attorney of record of Thales.
[18]
Mr Downer’s answering affidavit
in the application of accused 1, Mr Zuma in vol 10 at 2683-3074.
[19]
S v Shaik & others
2007 (1) SACR 142
(D).
[20]
See Mr Pikoli’s affidavit, vol
10
at 4408-4516.
[21]
S v Shaik & others
2007 (1) SA 240 (SCA).
[22]
Shaik & others v S
[2007]
2 All SA 150 (SCA).
[23]
S v Shaik & others
[2007] ZACC 19
;
2008 (2) SA 208
(CC).
[24]
Aubrey Thanda Mngwengwe was the
acting investigating director of the DSO at the time.
[25]
In terms of s 29 of the NPA Act.
[26]
Mahomed v National Director of
Public Prosecutions & others
2006
(1) SACR 495 (W).
[27]
Zuma & another v National
Director of Public Prosecutions & others
2006
(1) SACR 468 (D).
[28]
National Director of Public
Prosecutions v Zuma & others
(13569/2006)
[2007] ZAKZHC 4
(2 April 2007).
[29]
National Director of Public
Prosecutions v Zuma & others
2008
(1) SACR 243 (D).
[30]
National Director of Public
Prosecutions & another v Mahomed
2008
(1) SACR 309
(SCA).
[31]
Zuma & others v National
Director of Public Prosecutions
[2008]
1 All SA 234 (SCA).
[32]
National Director of Public
Prosecutions & another v Mahomed
2008
(1) SACR 309 (SCA).
[33]
National Director of Public
Prosecutions & others v Zuma & another
[2008]
1 All SA 197
(SCA) and
Thint
(Pty) Ltd v National Director of Public Prosecutions & others
[2008] 1 All SA 229 (SCA).
[34]
The African National Congress (ANC)
is the majority and ruling political party in South Africa.
[35]
Zuma v National Director of Public
Prosecutions
[2009] 1 All
SA 54 (N).
[36]
National Director of Public
Prosecutions v Zuma
2009
(2) SA 277 (SCA).
[37]
The Democratic Alliance is the
official political opposition party in South Africa.
[38]
Democratic Alliance v Acting
National Director of Public Prosecutions & others
(19577/09) [2011] ZAGPPHC 57 (22
February 2011).
[39]
Democratic Alliance & others v
Acting National Director of Public Prosecutions & others
2012
(3) SA 486 (SCA).
[40]
Democratic Alliance v Acting
National Director of Public Prosecutions & others
[2013] 4 All SA 610 (GNP).
[41]
Democratic Alliance v Acting
National Director of Public Prosecutions & others (Society for
the Protection of our Constitution
as amicus curiae)
[2016] 3 All SA 78 (GP).
[42]
Corruption Watch (RF) NPC &
another v President of the Republic of South Africa & others and
a related matter
[2018] 1
All SA 471 (GP).
[43]
Zuma v Democratic Alliance &
others
2018 (1) SA 200
(SCA).
[44]
Steyn ‘Undue delay in criminal
cases: The Scottish and South African courts’ response’
(2003)
Acta Juridica
139-159.
[45]
The interim Constitution of the
Republic of South Africa, Act 200 of 1993.
[46]
This section provides as follows:
‘
A
court before which criminal proceedings are pending, may from time
to time during such proceedings, if the court deems it necessary
or
expedient, adjourn the proceedings to any date on the terms which to
the court may seem proper and which are not inconsistent
with any
provision of this Act.’
[47]
S v Scholtz & others
1996 (2) SACR 623
(C) at 626g-627a.
[48]
S v Geritis
1966
(1) SA 753 (W).
[49]
S v Geritis
at
754E-G.
[50]
S v Magoda
1984
(4) SA 462 (C).
[51]
Du Preez v Attorney-General of the
Eastern Cape
1997 (3) BCLR
329 (E).
[52]
Barker v Wingo
[1972] USSC 144
;
(1972)
407 US 514.
In the case of
United
States v. Marion,
[1971] USSC 195
;
404 U.S.
307
(1971) at 320 the court stated that irrespective of any
prejudice that an accused person may experience by the conduct of
his
defence, certain interests of the accused are relevant such as
those that ‘seriously interfere with the defendant’s
liberty, whether he is free on bail or not, and that may disrupt his
employment, drain his financial resources, curtail his associations,
subject him to public obloquy, and create anxiety in him, his family
and his friends’. Also see
Artico
v Italy
(1981) 3 EHRR 1
para 35 where the court stated as a general proposition, in
considering Article 6(3)(c), that the existence of a violation of
the right is conceivable, even in the absence of prejudice.
[53]
Berg v Prokureur-Generaal, Gauteng
1995 (2) SACR 623 (T).
[54]
See also
Bate
v Regional Magistrate, Randburg & another
1996
(7) BCLR 974
(W).
[55]
Sanderson v Attorney-General,
Eastern Cape
1998 (1) SACR
227 (CC).
[56]
Sanderson v Attorney-General,
Eastern Cape
paras 28-29.
[57]
Sanderson
v
Attorney-General, Eastern Cape
para
30.
[58]
Wild & another v Hoffert NO &
others
[1998] ZACC 5
;
1998 (3) SA 695
(CC) para 11.
[59]
Sanderson v Attorney-General,
Eastern Cape
above para
38.
[60]
Zanner v Director of Public
Prosecutions, Johannesburg
2006
(2) SACR 45 (SCA).
[61]
Zanner v Director of Public
Prosecutions, Johannesburg
para
21.
[62]
Zanner v Director of Public
Prosecutions, Johannesburg
para
12.
[63]
Bothma v Els & others
2010 (2) SA 622 (CC).
[64]
Bothma v Els & others
above
para 36.
[65]
Van Heerden & another v
National Director of Public Prosecutions & others
[2017] 4 All SA 322 (SCA).
[66]
Rodrigues v National Director of
Public Prosecutions & others
2019
(2) SACR 251 (GJ).
[67]
2 July 1998 in London, 18 November
1998 and 11 March 2000 in Durban.
[68]
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 43.
[69]
S v Shaik & others
[2007] ZACC 19
;
2008 (2) SA 208
(CC) para 47.
[70]
S v Shaik & others
above para 50.
[71]
Zuma v Democratic Alliance &
others
2018 (1) SA 200
(SCA) para 31.
[72]
Zuma v Democratic Alliance &
others
2018 (1) SA 200
(SCA) para 94(iv).
[73]
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 37.
[74]
Zuma v Democratic Alliance &
others
above para 94(v).
[75]
This section was deleted by the
National Prosecuting Authority Amendment Act 56 of 2008
.
[76]
Democratic Alliance v Acting
National Director of Public Prosecutions & others (Society for
the Protection of our Constitution
as amicus curiae)
[2016] 3 All SA 78
(GP) para 52.
[77]
Zuma v Democratic Alliance &
others
2018 (1) SA 200
(SCA) para 42.
[78]
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 37.
[79]
In
H.L.
Bolton (Engineering) Co. Ltd. V. TJ Graham & Sons Ltd
[1957]
1 QB 159
at 172 the court compared the criminal liability of a
company with the human body in the following terms:
‘
A
company may in many ways be likened to a human body. It has a brain
and nerve centre which controls what it does. It also has
hands
which hold the tools and act in accordance with directions from the
centre. Some of the people in the company are mere
servants and
agents who are nothing more than hands to do the work and cannot be
said to represent the mind or will. Others are
directors and
managers who represent the directing mind and will of the company,
and control what it does. The state of mind
of these managers is the
state of mind of the company and is treated by law as such.’
In South Africa, the
Constitution recognises the right of a juristic person in terms of
the s 8(4) of the Constitution as follows:
‘
A
juristic person is entitled to the rights in the Bill of Rights to
the extent required by the nature of that juristic person.’
[80]
See Mr Downer’s affidavit, vol
10 at 2683-2917.
[81]
McCarthy v Additional Magistrate,
Johannesburg
2000 (2) SACR
542
(SCA) para 47.
[82]
US v Trammell
133
F 3d 1343
, 1351 (10th Cir 1998).
[83]
Wild
&
another v Hoffert NO & others
[1998] ZACC 5
;
1998
(3) SA 695
(CC) paras 26-27.
[84]
Zuma v Democratic Alliance &
others
2018 (1) SA 200
(SCA).
[85]
See Mr Ngcuka’s affidavit, vol
15 at 4541-4546.
[86]
See para 41 of this judgment.
[87]
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 64.
[88]
It is
necessary for purposes of this judgment to quote s 22 in its
entirety, it reads:
‘
22
Powers, duties and functions of National Director
(1)
The
National Director
, as the head of the
prosecuting
authority
, shall have authority over the exercising of all the
powers, and the performance of all the duties and functions
conferred or
imposed on or assigned to any member of the
prosecuting
authority
by the
Constitution
,
this Act
or any
other law.
(2)
In accordance with section 179 of the
Constitution
, the
National Director
-
(a)
must
determine prosecution policy and issue policy directives as
contemplated
in section 21;
(b)
may
intervene in any prosecution process when policy directives are
not
complied with; and
(c)
may
review a decision to prosecute or not to prosecute, after consulting
the relevant
Director
and
after taking representations, within the period specified by the
National
Director
,
of the accused person, the complainant and any other person or party
whom the
National
Director
considers
to be relevant.
(3)
Where the
National Director
or a
Deputy National Director
authorised thereto in writing by the
National Director
deems
it in the interest of the administration of justice that an offence
committed as a whole or partially within the area of
jurisdiction of
one
Director
be investigated and tried within the area of
jurisdiction of another
Director
, he or she may, subject to
the provisions of section 111 of the Criminal Procedure Act, 1977
(Act 51 of 1977), in writing direct
that the investigation and
criminal proceedings in respect of such offence be conducted and
commenced within the area of jurisdiction
of
such
other
Director
.
(4)
In addition to any other powers, duties and functions conferred or
imposed on or assigned to the
National Director
by section
179 or any other provision of the
Constitution
,
this Act
or any other law, the
National Director
, as the head of
the
prosecuting authority
-
(a)
with
a view to exercising his or her powers in terms of subsection (2),
may-
(i)
conduct
any investigation he or she may deem necessary in respect of a
prosecution or a prosecution process, or directives, directions
or
guidelines given or issued by a
Director
in
terms of
this
Act
,
or a case or matter relating to such a prosecution or a prosecution
process, or directives, directions or guidelines;
(ii)
direct the submission of and
receive reports or interim reports from a
Director
in respect
of a case, a matter, a prosecution or a prosecution process or
directions or guidelines given or issued by a
Director
in
terms of
this Act
; and
(iii)
advise the
Minister
on
all matters relating to the administration of criminal justice;
(b)
shall
maintain close liaison with the
Deputy
National Directors
,
the
Directors,
the
prosecutors
,
the legal professions and legal institutions in order to foster
common policies and practices and to promote co-operation in
relation to the handling of complaints in respect of the
prosecuting
authority
;
(c)
may
consider such recommendations, suggestions and requests concerning
the
prosecuting
authority
as
he or she may receive from any source;
(d)
shall
assist the
Directors
and
prosecutors
in
achieving the effective and fair administration of criminal justice;
(e)
shall
assist the
Deputy
National Directors, Directors
and
prosecutors
in
representing their professional interests;
(f)
shall
bring the United Nations Guidelines on the Role of Prosecutors to
the attention of the
Directors
and
prosecutors
and
promote their respect for and compliance with the above-mentioned
principles within the framework of national legislation;
(g)
shall
prepare a comprehensive report in respect of the operations of the
prosecuting
authority
,
which shall include reporting on-
(i)
the activities of the
National Director, Deputy National Directors
,
Directors
and the
prosecuting authority
as a whole;
(ii)
the personnel position of the
prosecuting authority
;
(iii)
the financial implications in
respect of the administration and operation of the
prosecuting
authority
;
(iv)
any recommendations or
suggestions in respect of the
prosecuting authority
;
(v)
information relating to
training programmes for
prosecutors
; and
(vi)
any other information which the
National Director
deems
necessary;
(h)
may
have the administrative work connected with the exercise of his or
her powers, the performance of his or her functions or
the carrying
out of his or her duties, carried out by persons referred to in
section 37 of
this
Act
;
and
(i)
may
make recommendations to the
Minister
with
regard to the
prosecuting
authority
or
the administration of justice as a whole.
(5)
The
National Director
shall, after consultation with the
Deputy National Directors
and the
Directors
, advise
the
Minister
on creating a structure, by regulation, in terms
of which any person may report to such structure any complaint or
any alleged
improper conduct or any conduct which has resulted in
any impropriety or prejudice on the part of a member of the
prosecuting authority
, and determining the powers and
functions of such structure.
(6)
(a)
The
National Director
shall, in
consultation with the
Minister
and after consultation with
the
Deputy National Directors
and the
Directors
, frame
a code of conduct which shall be complied with by members of the
prosecuting authority
.
(b)
The
code of conduct may from time to time be amended, and must be
published in the
Gazette
for
general information.
(7)
The
National Director
shall develop, in consultation with the
Minister
or a person authorised thereto by the
Minister
,
and the
Directors
, training programmes for
prosecutors
.
(8)
The
National Director
or a person designated by him or her in
writing may-
(a)
if
no other member of the
prosecuting
authority
is
available, authorise in writing any suitable person to act as a
prosecutor for the purpose of postponing any criminal case
or cases;
(b)
authorise
any competent person in the employ of the public service or any
local authority to conduct prosecutions, subject to
the control and
directions of the
National
Director
or
a person designated by him or her, in respect of such statutory
offences, including municipal laws, as the
National
Director
,
in consultation with the
Minister
,
may determine.
(9)
The
National Director
or any
Deputy National Director
designated by the
National Director
shall have the power
to institute and conduct a prosecution in any court in the
Republic
in person.’
[89]
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 64.
[90]
See Thales’ replying affidavit
inter alia paras 84-87, vol 3 at 715.
[91]
KwaZulu-Natal Bookmakers’
Society v Phumelela Gaming and Leisure Ltd
(889/2018)
[2019] ZASCA 116
(19 September 2019).
[92]
Cool Ideas 1186 CC v Hubbard &
another
2014 (4) SA 474
(CC) para 28.
[93]
See D van Zyl Smit and E Steyn
‘Prosecuting Authority in the New South Africa’ (January
2000) VIII
CIJL Yearbook
137 at 142 and M
Schönteich ‘The National Prosecuting Authority,
1998-2014’ (2014) 50
SA
Crime Quarterly
5-15.
[94]
Ex Parte Chairperson of the
Constitutional Assembly: in re certification of the Constitution of
the Republic of South Africa,
1996
1996
(4) SA 744 (CC).
[95]
Harms DP in
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 58 stated the following:
‘
As
mentioned before, s 179 created a new prosecutorial structure where,
instead of having a number of Attorneys-General, each
with their
respective areas of jurisdiction, one now has an NDPP who is a
presidential (political) appointee at the apex of a
single NPA and
below him DPPs and prosecutors who are not.’
[96]
Joosub Ltd v Ismail
1953 (2) SA 461
(A) at 466D-E.
[97]
KwaZulu-Natal Bookmakers’
Society v Phumelela Gaming and
Leisure Ltd
(889/2018)
[2019] ZASCA 116
(19 September 2019) para 12.
[98]
https://www.npa.gov.za/content/prosecution-policy-and-policy-directives
;
see also annexure ‘JS11’, vol 17 at 5409-5420.
[99]
Shorter Oxford English Dictionary
on historical principles
(1978)
at 2066.
[100]
The NPA’s heads of argument at
233-235.
[101]
Prosecution policy para 4C.
[102]
National Director of Public
Prosecutions & others v Freedom Under Law
2014
(4) SA 298 (SCA).
[103]
Also see
Highstead
Entertainment (Pty) Ltd t/a ‘The Club’ v Minister of Law
and Order & others
1994
(1) SA 387
(C) and
Nhlabathi
v Adjunk Prokureur-Generaal, Transvaal, en andere
1978
(3) SA 620
(W) at 630A-D deciding that a decision of a prosecutor to
prosecute or not is an administrative action even if the grounds for
interference are limited.
[104]
See s 1
(c)
of the Constitution that reads:
‘
1
Republic of South Africa
The
Republic of South Africa is one, sovereign, democratic state founded
on the following values:
.
. .
(c)
Supremacy of the
constitution and the rule of law.’
[105]
Fedsure Life Assurance Ltd &
others v Greater Johannesburg Transitional Metropolitan Council &
others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) para 59.
[106]
Pharmaceutical Manufacturers
Association of SA & another: In re Ex Parte President of the
Republic of South Africa & others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) para 90.
[107]
See
Masetlha
v President of the Republic South Africa & another
[2007] ZACC 20
;
2008 (1) SA 566
(CC) para 174;
Albutt v Centre for
the Study of Violence and Reconciliation, & others
2010
(3) SA 293
(CC) para 49 deciding that:
‘
.
. .the exercise of all public power must comply with the
Constitution, which is the supreme law, and the doctrine of
legality,
which is part of the rule of law.’ (Footnote
omitted.)
[108]
Masetlha v President of the
Republic South Africa & another
para
82.
[109]
See
Law
Society of South Africa & others v President of the Republic of
South Africa & others
2019
(3) SA 30
(CC) para 61. See also
National
Energy Regulator of South Africa & another v PG Group (Pty)
Limited & others
2019
ZACC 28
para 48.
[110]
See Mr Abrahams’ affidavit, vol
16 para 26 that reads:
‘
26.
The response I received from the DPCI was there were well over 100
witnesses whose availability could be determined, the documentary
evidence is still available and is in the case and control of the
DPCI and the docket constitutes many lever arch files.’
[111]
See Mr Abraham’s affidavit, vol
16 at p4554-4599.
[112]
Annexure ‘SKA29’, vol 16
at 4877.
[113]
See
Zealand
v Minister of Justice and Constitutional Development & another
[2008] ZACC 3
;
2008 (4) SA 458
(CC) para 38 where
the court held that the State bears the onus to justify conduct.
[114]
Bel Porto School Governing Body &
others v Premier, Western Cape, & another
2002
(3) SA 265 (CC).
[115]
Law Society of South Africa &
others v Minister of Transport & another
2011
(1) SA 400
(CC) para 39.
[116]
See Mr Abrahams’ affidavit, vol
16, paras 81.1-81.4.
[117]
See Mr Abrahams’ affidavit, vol
16, para 94.
[118]
See paras 5 and 7 of the prosecution
policy.
[119]
See para 2 of the notice of motion in
the main application.
[120]
See
Oosthuizen
v Stanley
1938 AD 322
at
333;
Mkwanzi v Van der
Merwe & another
1970
(1) SA 609
(A) at 616B-617E.
[121]
Rail Commuters Action Group &
others v Transnet Ltd t/a Metrorail & others
2005
(2) SA 359 (CC).
[122]
Rail Commuters Action Group &
others v Transnet Ltd t/a Metrorail & others
para
43.
[123]
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 37.