Zuma v Democratic Alliance and Others; Acting National Director of Public Prosecutions and Another v Democratic Alliance and Another (771/2016, 1170/2016) [2017] ZASCA 146; [2017] 4 All SA 726 (SCA); 2018 (1) SA 200 (SCA); 2018 (1) SACR 123 (SCA) (13 October 2017)

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[2017] ZASCA 146
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Zuma v Democratic Alliance and Others; Acting National Director of Public Prosecutions and Another v Democratic Alliance and Another (771/2016, 1170/2016) [2017] ZASCA 146; [2017] 4 All SA 726 (SCA); 2018 (1) SA 200 (SCA); 2018 (1) SACR 123 (SCA) (13 October 2017)

Links to summary

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 771/2016
In the
matter between:
JACOB
GEDLEYIHLEKISA ZUMA

APPLICANT/APPELLANT
and
DEMOCRATIC
ALLIANCE

FIRST RESPONDENT
ACTING
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS

SECOND RESPONDENT
THE
HEAD OF THE DIRECTORATE OF SPECIAL
OPERATIONS

THIRD RESPONDENT
And
in the matter between:
Case No: 1170/2016
ACTING
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS

FIRST APPLICANT/APPELLANT
THE
HEAD OF THE DIRECTORATE OF SPECIAL
OPERATIONS

SECOND APPLICANT/APPELLANT
and
DEMOCRATIC
ALLIANCE

FIRST RESPONDENT
JACOB
GEDLEYIHLEKISA ZUMA

SECOND RESPONDENT
Neutral
Citation:
Zuma
v DA
(771/2016);
ANDPP V
DA
(1170/2016)
[2017] ZASCA 146
(13 October 2017).
Coram:
Navsa
ADP, Cachalia, Bosielo, Leach and Tshiqi JJA
Heard:
14
September 2017
Delivered:
13
October 2017
Summary:
Decision
by Acting National Director of Public Prosecutions to discontinue
prosecution – whether decision wanting for invocation
and
reliance on inapposite provision of the Constitution– whether
decision rational – manner in which NPA conducted
litigation
deserving of judicial censure.
ORDER
On
appeal from
:
The Gauteng Division of the High Court, Pretoria (Ledwaba DJP with
Pretorius and Mothle JJ sitting as court of first instance),
reported
sub nom
Democratic
Alliance v Acting National Director of Public Prosecutions &
others
2016 (2) SACR 1
(GP).
The
following order is made:
1
The applications for leave to appeal are granted.
2
The appeals are dismissed with costs, including the costs of three
counsel and the costs related to the applications for leave
to
appeal. The National Prosecuting Authority and Mr JG Zuma are to pay
such costs jointly and severally, the one paying the other
to be
absolved.
JUDGMENT
Navsa
ADP (Cachalia, Bosielo, Leach and Tshiqi JJA concurring):
Introduction
[1]
T S Eliot spoke of ‘the recurrent end of the unending’.
[1]
The relevance of these words will soon become apparent. Before us
there are two applications for leave to appeal, referred by this

Court for oral argument in terms of
s 17(2)
(d)
of the
Superior Courts Act 10 of 2013
. In referring the matter for
oral argument, this Court directed the parties to be ready, if called
upon to do so, to argue the
merits of the appeal. The two
applications were consolidated as they arise out of the same facts.
We heard the applications and
directed that the merits be argued as
well. The first application is by Mr Jacob G Zuma, presently the
President of the Republic
of South Africa. The other application is
by the Acting National Director of Public Prosecutions (the ANDPP)
[2]
and the Head of the Directorate of Special Operations (DSO)
[3]
.
The applications are directed against a judgment of the Gauteng
Division of the High Court, Pretoria, in terms of which the decision

on 1 April 2009 by the then ANDPP, Mr Mokotedi Mpshe, to discontinue
the prosecution of Mr Zuma on serious criminal charges, including

charges of racketeering, corruption, money laundering and fraud, was
held to be irrational and was reviewed and set aside. The
order was
at the instance of the Democratic Alliance (the DA), the official
opposition in the National Parliament.
[2]
Eight years ago, in 2009, this Court in
National Director of
Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA)
(hereinafter referred to as
Zuma
), stated the following in
para 2:
‘
The
litigation between the NDPP and Mr Zuma has a long and troubled
history and the law reports are replete with judgments dealing
with
the matter. It is accordingly unnecessary to say much by way of
introduction and a brief summary will suffice.’
Save
for what is set out below, the litigation history up to that point is
recounted in that case.
[4]
I do
not intend to repeat it. Much more litigation followed, culminating
in the matter presently before us. Unlike instances in
the past, in
the present case, the National Prosecuting Authority (the NPA) and Mr
Zuma made common cause.
[3]
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.
Minutes into the argument before us counsel for both Mr Zuma and the
NPA conceded that the decision to discontinue the
prosecution was
flawed. Counsel on behalf of Mr Zuma, having made the concession,
with the full realisation that the consequence
would be that the
prosecution of his client would revive, 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.
[4]
The South African public might well be forgiven for thinking that the
description at the beginning of this judgment was coined
to deal with
the prosecution or latterly, more accurately, the non-prosecution of
Mr Zuma. I shall, in due course, deal with the
nature and import of
the concessions made by both the NPA and counsel on behalf of Mr
Zuma.
[5]
At this stage it is necessary to set out in some detail the
background to the litigation in the court below. The reason for
this
is to assess whether the concessions referred to in para 3 above,
which will be dealt with in detail later, were rightly made
and
whether there are other equal or perhaps more compelling
considerations over and above those conceded by Mr Zuma and the NPA,

which render the decision to discontinue the prosecution liable to be
set aside. Furthermore, the history is important in that
there are
certain aspects in respect of which judicial comment is required. I
now turn to deal with the history of the matter.
The
background
[6]
Initially, corruption charges were brought by the NPA against Mr Zuma
during 2005, before he was elected to the high office
he currently
holds, and well after the conviction of his former business
associate, Mr Shabir Shaik, on fraud and corruption charges.
[5]
Investigations related to the criminal charges against Mr Zuma
commenced in 2001. During 2006 the case against him was struck from

the roll by Msimang J in the Durban and Coast Local Division of the
High Court, after an application by the State for a postponement
to
complete its investigation and finalise an indictment was refused.
[6]
This had the result that the prosecution was terminated.
[7]
Not only had Mr Zuma opposed the application by the State for a
postponement, but in addition his legal representatives filed an

application for a permanent stay of the prosecution. When the matter
was struck from the roll that too came to an end.
[7]
On 28 December 2007, a new indictment containing charges of
corruption and money laundering was served on Mr Zuma. This Court,
in
Zuma
,
held that the then ANDPP, Mr Mokotedi Mpshe, had taken the decision
to prosecute.
[8]
The
significance of that finding in relation to the heads of argument
initially filed by both the applicants in this matter, the
later
supplementary heads filed on behalf of the NPA, and ultimately on the
outcome of this case, will be dealt with during the
course of this
judgment.
[8]
Subsequent to the indictment being served, further legal battles were
waged by Mr Zuma against the NPA concerning search warrants
and other
issues related to his prosecution. For present purposes it is
unnecessary to have regard to the other contestations.
[9]
On 10 February 2009, more than a year after the new indictment was
served, Mr Zuma’s legal representatives, in an attempt
to
persuade the NPA to discontinue the prosecution, made written
representations, purportedly for consideration by Mr Mpshe, in
terms
of the provisions of s 179(5)
(d)
of the Constitution
[9]
which provides:
‘
The
National Director of Public Prosecutions -
.
. .
(d)
may review a decision to
prosecute or not to prosecute, after consulting the relevant Director
of Public Prosecutions and after
taking representations within a
period specified by the National Director of Public Prosecutions,
from the following:
(i)
The accused person.
(ii)
The complainant.
(iii)
Any other person or party whom the National Director considers to be
relevant.’
[10]
I pause to record that these representations were not made under
oath. They were also not disclosed to the public, the court
below or
this Court, on the basis of confidentiality claimed by Mr Zuma and on
the basis that they had been made on a ‘without
prejudice’
basis. In resisting the DA’s application in the court below to
have the decision to discontinue the prosecution
set aside, the
principal deponent on behalf of the NPA, Mr William Hofmeyr, a Deputy
National Director of Public Prosecutions and
the head of the Asset
Forfeiture Unit in the NPA, explained that the written
representations on behalf of Mr Zuma covered the following
topics:
(a)
The merits of the prosecution;
(b)
His intention to challenge the inclusion of racketeering charges in
the indictment and whether this would inevitably lead to
delays in
the prosecution;
(c)
Mr Zuma’s contention that delays in finalising the prosecution
and the trial would undermine his right to a fair trial;
(d)
The financial costs of the prosecution;
(e)
Policy and legal implications associated with prosecuting a sitting
President.
[10]
(f)
The risks of political, economic and social instability, should the
NPA proceed with its prosecution of Mr Zuma;
(g)
The impact of the trial on the administration of justice. They argued
that even if the NPA secured a conviction, the majority
of South
Africans would still believe that Mr Zuma had been treated unfairly;
(h)
The existence of a political conspiracy, of which the NPA was part,
to discredit Mr Zuma.
[11]
On 20 February 2009, 10 days after they made written representations
Mr Zuma’s legal representatives, attorney Michael
Hulley and
his counsel Mr Kemp J Kemp SC, made oral representations to the NPA.
The NPA team receiving the representations comprised
Mr Mpshe and his
deputies, including Mr Sibongile Mzinyathi, a Deputy Director of
Public Prosecutions and head of the National
Prosecutions Service in
the National Director of Public Prosecution’s office and Mr
Thanda Mngwengwe, an investigating Director
with the DSO at the time
that charges were re-instituted and prosecutor under whose hand the
indictment was filed and Acting Head:
DSO at the time the charges
were withdrawn.
[12]
Mr Hofmeyr described how the oral representations consisted of two
parts. The following are the relevant parts of his affidavit:
‘
241
On 20 February 2009, Michael Hulley and Kemp J Kemp SC (Zuma’s
legal representatives) made oral representations to the
NPA. The NPA
delegation comprised of Mpshe and his deputies, including Mzinyathi.
Mngwengwe was also present and participated in
the representations
process.
242
The oral representations 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 was a briefing on the
allegations of a political conspiracy which included additional

information that was not contained in the written representations
that had been submitted.
243
Hulley disclosed that he was in possession of recordings of
[telephone] conversations between McCarthy and various politicians,

including Ngcuka, Mzi Khumalo (a close friend of Ngcuka) and Ronnie
Kasrils (Minister of Intelligence at the time).
244
He maintained that the recordings proved that McCarthy manipulated
the timing of the decision to charge Zuma and that he had

deliberately delayed the decision until after Polokwane with one
purpose in mind: to undermine Zuma’s chances of being elected

as ANC President at Polokwane. Following Zuma’s election and
Mbeki’s defeat, McCarthy had moved with haste to charge
Zuma.
245
Hulley and Kemp informed the NPA that they intended to apply for a
permanent stay in the prosecution of Zuma if the NPA persisted
with
its prosecution. They warned that if they did, the NPA’s
involvement in a political campaign to discredit Zuma, as well
as
McCarthy’s involvement in delaying the decision to prosecute,
and the motive behind it, would become public.’
[13]
Mr Hulley apparently also complained about the decision taken in 2003
by Mr Bulelani Ngcuka, the then National Director of
Public
Prosecutions (the NDPP), not to charge then Deputy President Zuma
along with Mr Shabir Shaik whilst announcing publicly
that there was
a prima facie case against the former. Mr Zuma’s legal
representatives were adamant that individuals in the
NPA, past and
present, conspired to discredit him. They referred to the fact that
Mr McCarthy, the head of the DSO at the time
had used the resources
of the NPA to source negative intelligence concerning Mr Zuma. To
this end he had initiated the Browse Mole
report which was supposedly
based on intelligence gathered by private intelligence operatives.
[14]
On 9 March 2009 Mr Hofmeyr and Mr Mzinyathi, instructed by Mr Mpshe,
met with Mr Hulley and listened to the recordings of the
telephone
conversations referred to in para 12, in Mr Hofmeyr’s office
and made notes of what they had heard. Mr Hofmeyr
specifically
enquired of Mr Hulley whether any member of the prosecution team,
excepting Mr McCarthy, was implicated in any campaign
against or
wrong-doing in relation to the prosecution of Mr Zuma. The answer was
in the negative. At this stage it is necessary
to record that the
prosecutors involved in the day-to-day running of the prosecution
were Mr William Downer SC; Mr Anton Steynberg,
a Deputy Director of
Public Prosecutions from KwaZulu-Natal; Mr George Baloyi, a Deputy
Director of Public Prosecutions from Gauteng;
and Mr Johan Du Plooy,
a Senior Special Investigator with the DSO. Mr Downer was involved in
the prosecution of Mr Shaik and it
follows that he was the lead
prosecutor in relation to the prosecution of Mr Zuma. The prosecutors
referred to above were given
the code-name ‘Project Bumiputera
Team’. I shall hereafter refer to them collectively as the
prosecution team.
[15]
Mr Hulley asked Mr Hofmeyr when it could be expected of Mr Mpshe to
respond to the representations made on behalf of Mr Zuma.
He warned
that if the prosecution continued he would advise Mr Zuma to bring an
application for a permanent stay of proceedings.
It will be recalled
that such an application had been brought earlier but was not finally
persisted in for the reason set out in
para 6 above.
[16]
Having received the representations and being concerned about the
effect of the recordings referred to above, Mr Mpshe was
anxious
about how best to respond. The prosecution team compiled a memorandum
in which they identified what they considered to
be the shortcomings
of the representations. First, they pointed to the fact that they had
not been made under oath. They considered
the representations to be
self-serving and cautioned that they had to be viewed with
circumspection. Second, and importantly, they
asserted that the
representations had not addressed the merits of the case against Mr
Zuma. Third, they indicated that whilst Mr
Zuma’s legal
representatives pointed to a political conspiracy on the part of Mr
Ngcuka and Mr McCarthy, they did not implicate
the prosecution team.
[17]
The prosecution team consistently maintained the position set out in
the preceding paragraph. Simply put, their view was that
the evidence
on which the charges were based was untainted and the prosecution
should continue as the case against Mr Zuma was
strong. This view was
supported by eminent outside senior counsel who advised that insofar
as fair trial issues might arise, in
relation to allegations of
prosecutorial impropriety, those should be dealt with by the trial
court.
[18]
When these issues were being debated within the NPA, Mr Mpshe was
rightly concerned about whether the telephone conversations
in issue
had been lawfully intercepted and the recordings properly obtained.
The following part of Mr Hofmeyr’s affidavit,
confirmed by Mr
Mpshe in his affidavit, is relevant:
‘
The
NIA had informed us that they were in possession of intercepted
recordings of conversations between McCarthy and Ngcuka, obtained

during the course of an investigation into the production and leaking
of the Browse Mole report. We were shown a copy of a certificate,

signed by a judge, authorising the interception of McCarthy’s
mobile phone.’
It
is important to note that the certificate by the judge indicating the
scope of the authorisation did not form part of the record
and
counsel for the NPA was unable to enlighten us in regard thereto.
Furthermore, how Mr Zuma’s legal representatives came
to be in
possession of what appears to be classified information obtained by
the NIA was not explained. At a meeting between NPA
management and
the prosecution team held on 30 March 2009 the following appears:
‘
NIA
is extremely cross about the info in Hulley's possession
Appears
SAPS & NIA were listening to the tapes’
Suffice
to say, it is troubling and warrants investigation by the relevant
authorities.
[19]
During the on-going discussions between Mr Mpshe, his deputies and
the prosecution team concerning the oral representations
made on
behalf of Mr Zuma, it appears from the NPA’s own notes that
they were all agreed that the case against him was a
strong one on
the merits. At one stage during an NPA internal meeting, when the
recordings and the allegations concerning manipulation
and a
conspiracy were being discussed, the following was stated:
‘
Case
against Mr Zuma is watertight.’
They
were also all agreed that the prosecution was untainted. Subsequent
to the disclosure of the recordings the NPA’s interactions
with
Mr McCarthy and Mr Ngcuka in relation to the allegations against them
of a political conspiracy to thwart Mr Zuma from becoming
the
President of the country yielded nothing of any substance. Mr Ngcuka
denied the allegations and Mr McCarthy informed them that
he would
not respond until he was supplied with details concerning the
recordings.
[20]
The material parts of notes taken at an internal meeting of the NPA
on 1 April 2009, at which it was decided to discontinue
the
prosecution, read as follows:
‘
*Mpshe
says after listening to the tapes he can’t separate
[McCarthy’s] involvement, he got angry. He can’t go
on
with this case. He has decided to drop the charges. We just need to
prepare the motivation and how do we substantiate this decision.
He
says we have sufficient (information) to explain our decision.
·
He has no doubt that the
President may have been a player behind the curtains.
·
He then goes on to the
inferences that he draws about the involvement of Mbeki e.g the fact
that you are on your own i.e you have
no president to protect you.
*Silas
is prepared to abide by your decision. If you are satisfied and can
justify I cannot say I disagree with your decision. I
will just need
a lot of work to prepare on the motivation.
*[Mr
Hofmeyr] says this is the most difficult decision. This is for legal
reasons and for the organisation. This is the correct
decision. This
would lead the NPA to attack. This is not because we are weak. We
need to think careful[ly] of what to say and how
to package. We need
to strategize on how to approach the team and need to have a proper
discussion with them.
*I
say I respect the decision and that the fact that I might have come
to a different conclusion, we should be very careful on how
to manage
this, avoid a cover-up. I would not be part of the cover-up.
*Silas
says there should be a valid and sound legal basis which he is not
sure we have. This needs a lot of a research. There is
also a
possibility of a
nolle prosequi
. If you agree, you have to
release the material, if not explain why not.
*Thanda
[Mngwengwe] says he also supports it but it should be based on sound
legal basis and we should be careful not to appear
to be doing what
McCarthy did [to] Zuma.
*In
support of Silas’ point about the nexus, what we did by going
to NIA was actually to legitimise an illegitimate process
by Hulley.
*I
propose that we only use the Hulley tapes and not use the NIA tapes.
Mpshe sort of agrees with me.
*[Mr
Hofmeyr] disagrees with me and says there is no train smash by using
the NIA tapes but only refer to them.
Agreed
that the press release is on Monday at 11h00.’
It
was agreed between the persons who attended that meeting that the
prosecution team would not be informed until shortly before
the
public announcement was to be made.
[21]
Unaware of what had transpired on 1 April 2009, the very next day the
prosecution team addressed a further memorandum to Mr
Mpshe, urging
him to reject the representations made on behalf of Mr Zuma. The
following paragraphs of that memorandum, bear repeating:
‘
6.
We refer to our memorandum of 20 March [2009], in which we recorded
counsel’s advice. Counsel advised the NPA that if the
decision
to prosecute Mr Zuma in December 2007 was taken properly according to
the merits of the evidence, then it would withstand
Mr Zuma’s
conspiracy claims, whatever their merits. Counsel persist with their
advice.
7.
Given the importance for the present decision of the 2007 decision to
prosecute, the Bumiputera team re-examined our notes, diaries
and
memoranda concerning the events of November and December 2007.
8.
Having done so, we are satisfied that the position is quite clear.
All the members of the Bumiputera team and all the NPA top
management
to whom our recommendations were presented, were unanimous that Mr
Zuma should be charged. The consensus was also that
racketeering
charges in terms of POCA should be included. The consensus included
the Acting NDPP. Indeed, on 14 December 2007,
[Mr] Mpshe signed the
POCA authorization for the racketeering charges.
9.
The recommendations, discussions, motivations and decisions were
founded on the merits of the evidence.
10.
Despite this consensus concerning the correctness of the decision in
principle, the Acting NDPP had not actually made the final
decision
to prosecute, and when, before he went on leave after 14 December
[2007].
11.
The delay can be attributed to a difference of approach between the
Bumiputera team and the Acting NDPP regarding
when
the
decision would be taken. The team recommended that the decision to
prosecute should be taken and implemented immediately in
early
December or as soon as possible after that, as all obstacles to the
prosecution had by then been removed and we were ready
to prosecute.
We codified our recommendations in our memorandum to the Acting NDPP
dated 6 December 2007. Part of our motivation
was (and remains) that
political considerations, which might include the then impending
Polokwane conference, should be left out
of account.
12.
[Mr] Mpshe decided nevertheless to delay his decision until after
Polokwane. He told Adv Downer that he did not wish the NPA
to be seen
to be interfering in the Polokwane proceedings. Adv Downer noted that
the Acting NDPP told him expressly that this decision
was his ([Mr]
Mpshe’s) and his alone.
13.
Adv McCarthy issued the instruction to Adv Downer after Polokwane on
21 December to proceed with issuing and serving the indictment
and
summonsing the accused. We do not know what interaction between
Advocates Mpshe and McCarthy preceded this instruction.’

(Emphasis in the original.)
[22]
Significantly, for reasons that will become clear later, Mr Hofmeyr,
and not Mr Mpshe, responded to the memorandum by way of
an e-mail
that same day and suggested that the prosecution team’s
memorandum be amended to emphasise Mr McCarthy’s
central role
in the decision to formally institute proceedings against Mr Zuma.
The relevant part of the email reads as follows:
‘
At
our meeting on 29 Nov it was decided that the Head of the DSO should
take the decision.
His
subsequent discussion with [McCarthy] and you was that charges should
be after 1 Jan.
He
says [McCarthy] phoned him about the 21
st
or 24
th
to say he wants to proceed now.
He
then informed him that he does not agree, that it should wait until
after 1 Jan as previously agreed. But he said that since
it was the
Head of the DSO that must take the decision, it was up to [McCarthy]
to make the decision.’
In
a further e-mail Mr Hofmeyr said, amongst others:
‘
Clearly
[McCarthy] made the decision to institute [the prosecution
proceedings] between xmas and new year – without the support
of
the NDPP, but pretended that he had the support. As far as one can
see, Tanda [Mngwengwe] was not involved in that decision
– he
was simply asked to sign.’
[23]
The prosecution team maintained its stance and refused to make the
changes suggested by Mr Hofmeyr. This is reflected in Mr
Steynberg’s
response on behalf of the prosecution team to Mr Hofmeyr on 3 April
2009. Mr Steynberg responded as follows:
‘
[U]ltimately
[Mpshe’s] decision, in accordance with his in-principle
decision of 29 November, whoever finally put their name
to it.
[Mpshe] has consistently taken responsibility for the decision since
it was implemented. The only issue between him and
[McCarthy], it now
seems, was the timing of the decision . . . . The fact that
[McCarthy] might have decided, for his own Machiavellian
reasons, to
implement the decision on 28 Dec instead of the following week/month
does not in and of itself make it [McCarthy’s]
decision and not
that of the ANDPP.’
It
is necessary to note that material parts of the record that we may
now have regard to, in relation to the decision to terminate
the
prosecution, flowed from the decisions of this Court in
Democratic
Alliance & others v Acting National Director of Public
Prosecutions & others
[2012]
ZASCA 15
;
2012 (3) SA 486
(SCA) and
Zuma
v Democratic Alliance & others
[2014] ZASCA 101
;
[2014] 4 All SA 35
(SCA), in terms of which the
disclosure of a reduced record of what was before Mr Mpshe when he
made the decision was ordered.
[24]
On 6 April 2009 Mr Mpshe announced publicly that he had made the
decision to discontinue the prosecution of Mr Zuma and issued
a
detailed media statement providing the reasons for the decision. It
is against those reasons, and those reasons alone, that the
legality
of Mr Mpshe’s decision to terminate the prosecution is to be
determined.
[11]
The statement
recorded that representations had been received from Mr Zuma’s
legal representatives, both written and oral.
The following part of
the statement is important:
‘
The
representations submitted by the legal representatives pertained to
the following issues:
·
The substantive merits
·
The fair trial defences
·
The practical implications and
considerations of continued prosecution.
·
The policy aspects militating
against prosecution.
I
need to state upfront that we could not find anything with regard to
the first three grounds that militate against a continuation
of the
prosecution, and I therefore I do not intend to deal in depth with
those three grounds.
I
will focus on the fourth ground which I consider to be the most
pertinent for purposes of my decision. I will now deal with the

policy aspects militating against the prosecution.’
[25]
The statement went on to record, under the heading ‘possible
abuse of process’, that in the course of representations
made
on behalf of Mr Zuma, very serious allegations were made about
manipulation of the NPA which were substantiated by the recordings
of
the telephone conversations. The statement noted that the NIA
‘confirmed that it had legally obtained the recordings in
the
course of its investigation into the circumstances surrounding the
production and leaking of the Browse Mole report’.
Mr Mpshe’s
statement continued and dealt with what he said were ‘legal
considerations’. It focused on the independence
of the office
of the NDPP as constitutionally prescribed and had regard to ‘two
categories of abuse of process’, namely:
‘
a)
a manipulation or misuse of the criminal justice process so as to
deprive the accused of a protection provided by law or to take
an
unfair advantage over the accused;
b)
where, on a balance of probability the accused has been, or will be
prejudiced in the preparation or conduct of his defence or
trial by
either a delay or haste on the part of the prosecution which is
unjustifiable. (
R v Derby
Crown Court, ex Parte Brooks
[1985] 80 Cr. App. R 164, per Ormrod LJ).’
[26]
Mr Mpshe framed the issue that he was confronted with as follows:
‘
The
issue can be formulated as follows:
The
question is whether a legal or judicial process which is aimed at
dispensing justice with impartiality and fairness to both
parties and
to the community which it serves should permit its processes to be
abused and employed in a manner which gives rise
to unfairness and/or
injustice. (See
Jago v
District Court of New South Wales
,
[1989] HCA 46
;
[1989] 168 CLR 23
at 30, per Mason CJ).’
[27]
In his statement Mr Mpshe stated that the framework within which
‘abuse of process’ had to be considered was as
set out in
the English case of
R v Latif
[1996] UKHL 16
;
[1996] 1 WLR 104.
Mr Mpshe’s
statement proceeded along the following lines:
‘
There
will always be a tension between two extreme positions in that, if a
trial is discontinued, the public perception would be
that the
criminal justice system condones improper conduct and malpractice by
law enforcement agencies – and if a trial is
discontinued the
criminal justice system will incur the reproach that it is failing to
protect the public from serious crime.’
[28]
The statement continued with a reference to the following passages
lifted from
Latif
:
‘“
No
single formulation will readily cover all cases, but there must be
something so gravely wrong as to make it unconscionable that
a trial
should go forward . . .” (
R
v Martin
,
[1997] UKHL 56
;
[1998] 1 All ER
193
, at 216, per Lord Clyde).
“
Something
so unfair and wrong that the court should not allow a prosecutor to
proceed with what is in all respects a regular proceeding.”
(
R
v Hui-Chi-Ming
[1992] 1 AC
34
, at 57B, per Lord Hope)
“
An
abuse may occur through the actings of the prosecution, as by
misusing or manipulating the process of the court. But it may also

occur independently of any acts or omissions of the prosecution in
the conduct of the trial itself.” (
Martin
(supra), at 215, per Lord Clyde).’
[29]
The statement also cited what was said by Harms DP in
Zuma
, in
paras 37-38:
‘
The
court dealt at length with the non-contentious principle that the NPA
must not be led by political considerations and that ministerial

responsibility over the NPA does not imply a right to interfere with
a decision to prosecute . . . . This, however, does need some

contextualisation. A prosecution is not wrongful merely because it is
brought for an improper purpose. It will only be wrongful
if, in
addition, reasonable and probable grounds for prosecuting are absent,
something not alleged by Mr Zuma and which in any
event can only be
determined once criminal proceedings have been concluded. The motive
behind the prosecution is irrelevant because,
as Schreiner JA said in
connection with arrests, the best motive does not cure an otherwise
illegal arrest and the worst motive
does not render an otherwise
legal arrest illegal. The same applies to prosecutions.
This
does not, however, mean that the prosecution may use its powers for
“ulterior purpose”: To do so would breach the
principle
of legality. The facts in
Highstead
Entertainment (Pty) Ltd t/a “The Club” v Minister of Law
and Order
[1994 (1) SA 387
(C)] illustrate and explain the point. The police had confiscated
machines belonging to Highstead for the purpose of charging it
with
gambling offences. They were intent on confiscating further machines.
The object was not to use them as exhibits – they
had enough
exhibits already – but to put Highstead out of business. In
other words, the confiscation had nothing to do with
the intended
prosecution and the power to confiscate was accordingly used for a
purpose not authorised by the statute. This is
what “ulterior
purpose” in this context means. That is not the case before us.
In the absence of evidence that the
prosecution of Mr Zuma was not
intended to obtain a conviction the reliance on this line of
authority is misplaced as was the focus
on motive.’
[30]
The recordings of telephone calls between Mr McCarthy and Mr Ngcuka
were central to Mr Mpshe’s decision to discontinue
the
prosecution. According to the statement, they were considered to be
crucial in that they reflected a ‘manipulation of
the
prosecution process for ulterior purposes’. In the statement
there were also references to discussions between Mr Ngcuka
and Mr
McCarthy, involving the timing of the filing of papers in the
Constitutional Court in opposing the appeal against the decision
of
this Court in
Zuma.
This,
it was suggested, related to achieving political ends and was
indicative of a further abuse of the prosecution process. The

statement also referred to an interception of Short Message Service
(SMS) exchanges between a private intelligence operative and
Mr
McCarthy, allegedly about achieving political ends in relation to the
case against Mr Zuma.
[31]
It is apparent from Mr Mpshe’s statement, under the heading
‘conclusion’, that his decision to discontinue
the
prosecution was driven principally, if not exclusively, by what he
considered to be Mr McCarthy’s abuse of the prosecution
process
in relation to the timing of the service of the indictment. It is
necessary to consider carefully the following parts of
Mr Mpshe’s
statement:
‘
[A]n
intolerable abuse has occurred which compels a discontinuation of the
prosecution.
What
actually triggers the abuse of process is a major determining factor,
because it is that trigger which determines the purpose
of the abuse
and reveals whether the conduct in question is directed at a
legitimate or illegitimate purpose.
In
the present matter, the conduct consists
in the timing of the
charging of the accused
. In general there would be nothing wrong
in timing the charging of an accused person, provided that there is a
legitimate prosecutorial
purpose for it and the accused is aware,
should be aware or has been made aware of such purpose. For example,
the timing may be
related to the availability of witnesses, or the
introduction or leading of specific evidence to fit in with the chain
of evidence.
It
follows therefore that,
any timing of the charging of an accused
person which is not aimed at serving a legitimate purpose is
improper, irregular and an
abuse of process
. A prosecutor who
uses a legal process against an accused person to accomplish a
purpose for which it is not designed abuses the
criminal justice
system and subjects the accused person to that abuse of process.
Abuse
of process through conduct which perverts the judicial or legal
process in order to accomplish an improper purpose offends
against
one’s sense of justice.
The
above implies the following:
Mr
McCarthy used the legal process for a purpose outside and extraneous
to the prosecution itself. Even if the prosecution itself
as
conducted by the prosecution team is not tainted, the fact that Mr
McCarthy, who was head of the DSO, and was in charge of the
matter at
all times and managed it almost on a daily basis, manipulated the
legal process for purposes outside and extraneous to
the prosecution
itself. It is not so much the
prosecution
itself that is
tainted, but the legal process itself.
Mr
McCarthy used the legal process for a purpose other than which the
process was designed to serve, i.e. for collateral and illicit

purposes.
It does not matter that the team acted properly,
honestly, fairly and justly throughout. Mr McCarthy’s conduct
amounts to
a serious abuse of process and offends one’s sense
of justice
.
What
Mr McCarthy did was not simply being over-diligent in his pursuit of
a case, it was pure abuse of process.
If
Mr McCarthy’s conduct offends one’s sense of justice, it
would be unfair as well as unjust to continue with the prosecution.
In
the light of the above, I have come to the difficult conclusion that
it is neither possible nor desirable for the NPA to continue
with the
prosecution of Mr Zuma.
It
is a difficult decision because the NPA has expended considerable
resources on this matter, and it has been conducted by a committed

and dedicated team of prosecutors and investigators who have handled
a difficult case with utmost professionalism and who have
not been
implicated in any misconduct.
Let
me also state for the record that the prosecution team itself had
recommended that the prosecution should continue even if the

allegations are true, and that it should be left to a court of law to
decide whether to stop the prosecution
.
However,
I believe that the NPA has a special duty, as one of the guardians of
the Constitution and the Bill of Rights, to ensure
that its conduct
is at all times beyond reproach.
As
an officer of the court I feel personally wronged and betrayed that
on a number of occasions I have given evidence under oath
that there
has not been any meddling or manipulation of the process in this
matter.
It
is with a great regret that I have to say today that in relation to
this case I can not see my way clear to go to court in future
and
give the nation this assurance.’ (My emphasis.)
[32]
On 14 April 2009 the prosecution team addressed a memorandum to Mr
Mpshe and the management within his office, including Mr
Hofmeyr. The
purpose, inter alia, was to record their ‘reservations
regarding the decision [terminating the prosecution]
and the
process’. The ‘reservations’ in truth were a
criticism of the decision to terminate the prosecution and
reflected
the disappointment of the prosecution team. The relevant parts read
as follows:
‘
The
Team wishes to place on record certain further concerns regarding the
process and the merits of the decision:
5.1
The legal aspects of the motivation were not given to us for comment
beforehand. In the few minutes before the press conference
it was
impossible to digest and comment on the legal justification given for
the decision. Nor was there the opportunity utilised
to run this
reasoning past two counsel who were available and eminently qualified
to advise on these issues.
5.2
In our view, the legal motivation provided for the decision is
questionable and may be vulnerable on review. We do not now deem
it
necessary to undertake an exhaustive critique of the reasoning, since
the die is now cast. However, we point out the following:
5.2.1
The reasoning relies heavily on the “abuse of process”
doctrine in UK and Canadian law. There is no reference
to any South
African cases which endorse the application of this doctrine in South
African law. We are concerned that this doctrine
may have been
inappropriately applied without due consideration of its
applicability in our law.
5.2.2
In relying uncritically on this doctrine, we are concerned that a
precedent may have been set which will come back to haunt
the NPA in
the future.
5.2.3
We are still of the view that the ultimate test should be
whether
the abuse in question would prevent the accused from having a fair
trial,
a question which was not even addressed.
5.2.4
The normal remedy for procedural unfairness, in circumstances where a
trial has not even commenced, would be to
remedy the procedure
.
We are of the view that the decision and the reasons given failed to
draw the proper distinction between the procedure and the
merits of
the decision.
5.3
The two crucial questions that senior counsel both advised needed to
be answered, were not. Namely, whether McCarthy’s
manipulation
improperly influenced the ANDPP’s decision and, if so, whether
with
ex post facto
knowledge of all the circumstances he is
still of the view that the decision to prosecute was correct. This
failure appears to us
to be fatal to the correctness of the decision.
5.4
The Team still does not have a settled, first-hand version, firstly,
of the interaction between the ANDPP and McCarthy in the
crucial
periods leading up to the ANDPP’s instruction on 6 December
2007 to [Mr Downer] that the ANDPP has decided to delay
his
decision/announcement until after Polokwane so as not to prejudice/
or to be perceived to be prejudicing JZ’s election
at
Polokwane. Secondly, leading up to McCarthy’s instruction to
[Mr Downer] on 21 December 2007 to proceed with summons immediately,

and how the ANDPP’s confirmation under oath that it was his
decision, in consultation with the ID and the Head: DSO, and
the
Team, to prosecute on 27 December 2007, fits with these
events.’
(
Emphasis
in original.)
[33]
Mr Hofmeyr was the most vociferous of those within the NPA management
in advancing the argument that the prosecution should
be discontinued
and, as referred to above, was the principal deponent in opposing the
DA’s application. The case sought to
be made out by him was
that it was Mr McCarthy that had influenced Mr Mpshe in respect of
the timing of the service of the indictment.
The timing of the
service of the indictment was in relation to the African National
Congress’ (ANC) national elective conference
to be held from
16-20 December 2007 at Polokwane. Mr Zuma was a candidate to be
elected President of the ANC, with the ultimate
purpose of being
elected the President of South Africa. According to Mr Hofmeyr the
telephone conversations referred to above prove
that Mr McCarthy and
his co-conspirators in favour of former President Mbeki and against
Mr Zuma were concerned that serving the
indictment before the
Polokwane conference would enhance Mr Zuma’s chances of being
elected. It was suggested further that
the telephone conversations
show that after Mr Mbeki’s devastating defeat at the Polokwane
conference, Mr McCarthy and his
co-conspirators considered that
serving the indictment after the conference would now be the only way
of saving the country and
ousting Mr Zuma. It is in this regard that
Mr McCarthy is said to have influenced the timing of the service of
the indictment.
It was this conduct that Mr Hofmeyr and Mr Mpshe
contended was so egregious that it amounted to abuse of process and
justified
the discontinuation of the prosecution. Mr McCarthy’s
co-conspirators were said by Mr Hofmeyr, to include Mr Ngcuka and Mr

Ronnie Kasrils, the former Minister of Intelligence Services. It was
submitted that they acted in collusion with former President
Mbeki.
Whether Mr Hofmeyr’s explanations and conclusions are borne out
by the objective evidence and whether they could rightly
have been an
appropriate basis for Mr Mpshe’s decision to discontinue the
prosecution, are issues for adjudication in the
appeals, in the event
of the applications for leave to appeal being successful.
[34]
In relation to Mr McCarthy’s alleged role in the timing of the
service of the indictment, it is necessary to record what
Mr Hofmeyr
himself stated in the NPA’s answering affidavit, namely, that
the indictment itself was only finalised on 27 December
2007.
According to Mr Hofmeyr, McCarthy had originally wanted the
indictment to be served on 24 December 2007, but this had proved

impossible to do because a mistake in the indictment needed to be
corrected. Mr Hofmeyr stated that an additional problem was that
the
sheriff who was to serve the indictment required additional copies
and the prosecution team could not get everything done on
time. In
responding to an assertion in the DA’s supplementary founding
affidavit, Mr Hofmeyr said the following:
‘
551
The NPA respondents admit that the prosecution could only be formally
instituted once the indictment had been signed and served
on Zuma.
552
The date of signature of the indictment and the date on which it was
served should not be confused with the date on which the
decision to
prosecute was made. The decision to prosecute Zuma was taken on 29
November 2007. The authorisation to include POCA
charges in the
indictment was signed on 14 December 2007. Mngwengwe signed the
indictment on 27 December 2007.
553
The NPA respondents deny that Zuma’s involvement as a contender
for the President of the ANC was a relevant consideration
or that it
impacted on the finalisation of the charge at all.’
This
contradicts his earlier assertion that the timing of the service of
the indictment was manipulated by Mr McCarthy. It is clear
that the
circumstances set out above are what dictated the timing of the
service of the indictment.
[35]
For reasons that will become clear later in this judgment, it is
worth noting that counsel on behalf of the NPA wanted it placed
on
record that no member of its present legal team had any hand in the
drafting and finalisation of the affidavits filed on behalf
of the
NPA.
The
court below
[36]
Ledwaba DJP, in his judgment in the court below, (comprising three
members – the other two being Pretorius and Mothle
JJ) had
regard to the DA’s rationality challenge and the response to it
by the ANDPP and the head of the DSO. He took into
account Mr Mpshe’s
statement to the media, in which he conceded that the substantive
merits of the case against Mr Zuma were
strong and that fair trial
rights were not affected. The court below had regard to Mr Mpshe’s
assertion that the decision
to discontinue the prosecution was a
response to the alleged abuse of process by Mr McCarthy, when he
manipulated the timing of
the service of the indictment on Mr Zuma.
Ledwaba DJP observed that the words used by Mr Mpshe in his media
statement bore a striking
resemblance to those adopted by Seagroatt J
of the High Court of Hong Kong in the matter of
HKSAR
v Lee Ming Tee & another
.
[12]
Similarly, the DA in an annexure to its heads of argument pointed to
several instances in which passages in Mr Mpshe’s media

statement were almost identical to passages from that judgment. The
quoted parts from Mr Mpshe’s media statement in paras
25 and 26
above are two such examples. Mr Mpshe’s media statement did not
mention nor does it appear that he took into consideration
that the
high court decision in
HKSAR
was overturned on appeal. The appeal court in that case said the
following:
‘
Although
the question is debatable, the better view is that an abuse of
process does not exist independently of, and antecedently
to, the
exercise of judicial discretion. The judicial decision that there is
an abuse of process which requires the grant of a
stay is itself the
result of the exercise of a judicial discretion. It is for the judge
to weigh countervailing considerations
of policy and justice and
then, in the exercise of the discretion, decide whether there is an
abuse of process which requires a
stay.’
[13]
[37]
The court below noted that
Latif
and the appeal court in
HKSAR
had held that a determination of whether an abuse of process
justified a stay of prosecution was an exercise for a court of law

and could not occur by way of an extra-judicial pronouncement. In the
view of the court below Mr Mpshe ‘surprisingly’
failed to
mention that fact in his media statement.
[38]
The court below found that Mr Mpshe had disregarded the prosecution
team’s recommendation that even if the allegations
regarding Mr
McCarthy were true, the decision to halt the prosecution had to be
made by the trial court. The court below agreed
with the view of the
prosecution team and held that it was for a court of law to deal with
allegations of abuse of process.
[39]
Ledwaba DJP also had regard to the dictum of this Court in
Zuma
to the
effect that a prosecution is not wrongful merely because it is
brought for an improper purpose and that it would only be
wrongful
if, in addition, reasonable and probable grounds of prosecuting are
absent. Ledwaba DJP stated that Mr Zuma did not allege
that there
were no reasonable or probable grounds for prosecution.
[40]
The court below considered Mr Hofmeyr’s admission that Mr Mpshe
had told Mr Downer that the decision about the timing
of the service
of the indictment had been his (Mr Mpshe’s) alone. It weighed
this against what Mr Mpshe stated later in his
supplementary
affidavit, namely, that he had been untruthful in communicating this
to Mr Downer. It will be recalled that Mr Hofmeyr
was the principal
deponent on behalf of the NPA rather than Mr Mpshe, the
decision-maker at the centre of the present dispute.
Mr Mpshe
initially provided a very brief confirmatory affidavit and later,
only after the DA’s replying affidavit had been
filed, did Mr
Mpshe provide a further supplementary affidavit. The court below had
regard to the following parts of that supplementary
affidavit:
‘
16.
McCarthy told me that it would be harmful to the NPA, particularly
the DSO which was under severe attack at the time, if Zuma
was
prosecuted before the Polokwane conference. He believed that if Zuma
were to be charged before the Polokwane conference, it
would
destabilise the DSO, the NPA and the country.
24.
I met with the Minister during the evening of 5 December 2007. I
raised with her the issue that the announcement would possibly
be
delayed. It was clear to me that she agreed that the prosecution
should be delayed. She was concerned that the NPA would be
perceived
as targeting Zuma ahead of the Polokwane conference.
25.
The following day (6 December 2007) I telephoned Downer to inform him
of the decision to delay the Zuma prosecution. I told
Downer that I
had taken the decision to postpone the prosecution independently. I
told him that it was my decision and my decision
alone. I did so
because Downer was aware that I had met the Minister the previous
day. I did not want him to think that the Minister
had interfered or
that the Minister had unduly influenced me.
26.
I did not tell Downer that it was McCarthy who had persuaded me that
it was necessary and that delaying the prosecution was
the better
option for the NPA. I knew that the decision to delay the prosecution
was likely to be unpopular. I knew that Downer
would be unhappy with
that decision.
27.
As head of the NPA, I felt that I had to support the decision.
McCarthy had already made the decision. I did not want to blame
it on
others when I knew it was likely to be unpopular. As expected, Downer
was angry about the decision to postpone the prosecution.’
[41]
Ledwaba DJP took a dim view of the contradictory versions supplied by
the NPA as to who had taken the decision about the timing
of the
service of the indictment. In paras 76 and 77 of its judgment, the
court below dealt with what it considered to be a lack
of an
explanation by the NPA of how Mr McCarthy’s alleged influence
to have the service of the indictment delayed would have

disadvantaged Mr Zuma:
‘
76.
Apart from the contradictory versions as to who took the decision to
delay the service of the indictment and for what reason,
there has
been no attempt in the papers to explain how Mr McCarthy’s
alleged influence and lobbying to have the service of
the indictment
delayed, would have disadvantaged Mr Zuma. It seems to this Court
that it would be logical to assert the view that
the service of the
indictment
before
the
Polokwane conference, would have thwarted the ambitions of Mr Zuma to
assume the leadership of the ANC.
77.
However, it is not indicated in the papers before us how the service
of the indictment
after
the Polokwane Conference, as allegedly
advocated by Mr McCarthy, would have been a tool to influence the
outcome of elections which,
as logic dictates, would by then have
occurred. Indeed it so happened that the indictment was served on Mr
Zuma after he had been
elected President of the ANC.’ (Emphasis
in original.)
It
will be recalled that there was a suggestion by Mr Hofmeyr based on
the recorded conversations that service on Mr Zuma after
the
Polokwane conference was considered by Mr McCarthy and his
co-conspirators as the only way of dislodging him. There were
arguments
for and against service of the indictment before or after
the Polokwane conference timeline, none of which were decisive in
relation
to the outcome that Mr McCarthy might have intended to
achieve.
[42]
Other references by Mr Hofmeyr to Mr McCarthy’s conduct in
relation to the Browse Mole report, were considered by the
court
below to be unconnected to the prosecution or the service of the
indictment. The court below saw these references as diversionary
and
irrelevant. In any event, so the court observed, the reason supplied
by Mr Mpshe for the discontinuation of the prosecution
was the timing
of the service of the indictment and not anything else. It held that
there was thus no rational link between Mr
McCarthy’s alleged
conduct and Mr Mpshe’s decision to discontinue the prosecution.
[43]
Ledwaba DJP found it disconcerting that Mr Downer and the other
members of the prosecution team were kept in the dark when
the
decision to discontinue the prosecution was ultimately taken. The
court could not comprehend the need for secrecy. In the view
of
Ledwaba DJP, Mr Mpshe’s acknowledged feelings of anger and
betrayal caused him to act impulsively and irrationally. For
all
these reasons the court below reviewed and set aside the decision to
discontinue the prosecution. The following part of para
92 of the
judgment of the court below was initially considered by counsel on
behalf of both the NPA and Mr Zuma to be an unwarranted
incursion by
the court into territory that rightly belonged to the NPA:
‘
It
is thus our view that the envisaged prosecution against Mr Zuma was
not tainted by the allegations against Mr McCarthy. Mr Zuma
should
face the charges as outlined in the indictment.’
The
position adopted by Mr Zuma and the NPA before the latter filed
supplementary heads and before the hearing of the appeal
[44]
The heads of argument filed in this Court on behalf of Mr Zuma, in
line with what was stated emphatically and repeatedly by
Mr Hofmeyr,
was that Mr McCarthy’s manipulation in relation to the timing
of the service of the indictment was of such a
nature that it
amounted to an egregious prosecutorial abuse of process. It was
submitted that the timing of the service of the
indictment had been
driven by Mr McCarthy’s aim to hamper Mr Zuma’s
presidential prospects, both at ANC and State level.
It defended Mr
Mpshe’s decision to terminate the prosecution in the following
terms:
‘
The
defence of the Decision relies on the proposition that prosecutorial
abuse can serve as the premises of a permanent stay. This
submission
is made with reference to the rationality debate.’
Essentially,
the contention on behalf of Mr Zuma was that although the
prosecutorial discretion to prosecute or desist was not the
mirror
image of the jurisprudence on a permanent stay, the relationship
between the two was one relied on in relation to the rationality
of
Mr Mpshe’s decision. The following appears in the heads on
behalf of Mr Zuma:
‘
Whilst
the DA contended that the Zuma case conflated the review with a
permanent stay proceeding, the relevance of such jurisprudence
is the
following:
a.
If a NDPP’s exercise of discretion invokes circumstances which
approximate those which have moved Courts in comparative
systems to
grant permanent stays, any imputation of irrationality suffers
greatly.
b.
It is indeed so that the bar for permanent stays by the Courts is set
at different heights. At present the bar in English jurisprudence
is
set high.’
[45]
In the present case, so it was contended, in the light of the nature
of the prosecutorial abuse complained of, namely, the
wielding of
prosecutorial powers for improper political purposes, Mr Mpshe had
acted rationally in deciding to discontinue the
prosecution. The
following appears in the heads of argument:
‘
Where
the abuse is designed to impact on who holds the highest office in
the land and affect the political system of choice, and
is executed
by very powerful functionaries perceived to interact closely with the
office of the President, a blunt cessation of
prosecution will more
likely restore faith in than bring into [disrepute], the Prosecution
Authority.’
[46]
Finally, it was submitted that the NDPP has an unfettered and wide
discretion whether to prosecute in any given instance. With
reference
to
Kaunda
& others v President of the Republic of South Africa & others
2005 (4) SA 235
(CC), it was contended that a decision not to
prosecute can be reviewed only on the very narrow ground that it
offends the principle
of legality, which would include irrational
decision-making. Counsel on behalf of Mr Zuma relied on the
‘paramountcy of prosecutorial
independence’ and argued
that a bona fide and honest decision by a prosecution authority has
‘very considerable immunity
for review’.
[47]
The court below was criticised by the NPA for its finding that Mr
Mpshe acted hastily in making his decision. Furthermore,
it was
submitted that the court below had erred in holding that Mr Mpshe
ought to have left it to the court to adjudicate the complaint
of
abuse of process. In respect of Mr Mpshe’s reliance on the
HKSAR
and
Latif
cases, the following is stated on
behalf of the NPA:
‘
It
is submitted that the Court
a
quo
erred in making the
facts of the
HKSAR
and
Latif
cases analogous to the present case, and in finding that Mpshe acted
“disingenuously”. Both of the aforementioned foreign

judgments concerned an application
by
the accused
in each case
for a stay of prosecution. The applications for a stay occurred
during the trial of the respective accused.’
(Emphasis in
original.)
[48]
The case for the NPA was that what is set out above is a far cry from
the position where the prosecution itself believes that
there has
been an abuse of process. In such an event, so it was submitted, it
would be acting in bad faith for a prosecutor to
continue to prepare
on the merits of a case, without informing the accused of the abuse
which it believes justified the termination
of the prosecution. The
NPA relied on the decision in
Regina
(Corner House Research & others) v Director of the Serious Fraud
Office (JUSTICE intervening)
[2008] UKHL 60
;
[2008] 3 WLR 568
which, in its view, recognised the existence of a
broad discretion in prosecuting authorities. That, so it was argued,
reflected
a long-standing practice based on the recognition that
while there is a strong public interest in the enforcement of the
criminal
law where the evidence to secure a conviction exists or may
be found, there are exceptional cases in which countervailing public

interests require restraint.
[49]
The NPA contended that the media statement by Mr Mpshe and the
answering affidavit of Mr Hofmeyr provided the factual justification

for the discontinuation of the prosecution. It was submitted on
behalf of the NPA that neither the court below nor this Court could,

in motion proceedings, find that Mr Mpshe’s discretion was
exercised for a collateral purpose or for improper or irrelevant

reasons.
[50]
The NPA, in its heads of argument, submitted that the statement by
the court below that Mr Zuma should now face the charges
outlined in
the indictment was impermissible and infringed upon the doctrine of
the separation of powers.
[51]
It was submitted that abuse of process issues go beyond fair trial
issues and that the abuse in this case ‘is among the
most
egregious imaginable’. The heads of argument went on to state:
‘
What
could be more institutionally damaging than an attempt – by
manipulating the timing of service of the indictment –
to swing
an election in favour of a political aspirant seeking high office.
This seems by far the most momentous form of prosecutorial
abuse.’
It
was submitted that the court below erred in finding that there was no
rational connection between the need to protect the integrity
of the
NPA and the decision to discontinue the prosecution against Mr Zuma.
[52]
On behalf of the NPA, it was contended that the court below should
have found that Mr McCarthy’s conduct overall, was
such that it
clearly evidences the manipulation of the prosecutorial process for
political ends, compelling Mr Mpshe to discontinue
the prosecution.
[53]
Finally, it was contended that there had indeed been an attempt in
the papers to explain how Mr McCarthy’s conduct in
delaying the
service of the indictment would disadvantage Mr Zuma. For this
proposition they relied on the following statement
by Mr Hofmeyr:
‘
Before
the Polokwane conference, Ngcuka and others opposed to Zuma, debated
amongst themselves whether or not Mbeki’s chances
of retaining
the ANC Presidency would be strengthened by delaying the prosecution.
Correctly or incorrectly, they believed that
Mbeki’s chances of
defeating Zuma would be strengthened if the prosecution were to be
delayed. McCarthy did as he was asked
to do although it was clear
that at times, he did not agree with Ngcuka’s instructions.
Ultimately, McCarthy ensured that
the prosecution was delayed. He did
so for one reason only, to bolster Mbeki’s chances of
successfully defeating Zuma.’
It
was submitted that it is clear that McCarthy and Ngcuka believed that
the service of the indictment shortly before the Polokwane
conference
would provoke a backlash from those who would consider it part of a
plot to besmirch Mr Zuma. That would, so they believed,
move
delegates to rally around Mr Zuma. That they may have miscalculated
does not detract from the fact that Mr McCarthy persuaded
Mr Mpshe to
delay the service of the indictment which he believed would
disadvantage the then President Mbeki if the NPA did not
hold back.
Additional
heads of argument on behalf of the NPA
[54]
Just a little over a week before the present applications for leave
to appeal were to be heard, the NPA filed ‘additional
heads of
argument’. It is necessary to set out paras 1-7 of their heads
in their entirety:
‘
1.
These additional heads of argument are submitted to clarify
submissions made in the main heads of argument concerning the
applicability
of section 179(5)(d) of the Constitution.
2.
The applicants accept that Mokotedi Mpshe (“Mpshe”), as
the Acting NDPP, could not rely upon s 179(5)(d) in deciding
to
discontinue the prosecution of Mr Zuma. In this regard:
2.1
This Court found in
National Director of Public Prosecutions v
Zuma
[2009] ZASCA 1
;
[2009 (2) SA 277
(SCA) 285]
that it was [Mr] Mpshe who
decided on 27 December 2007 to indict Mr Zuma.
2.2
This Court also held in the same case that s 179(5)(d) does not allow
a review by the NDPP of his own earlier decisions but
is limited to a
review of a decision made by a DPP or some other prosecutor for whom
a DPP is responsible.
2.3
In the result, the decision by Mpshe in 2009 to review his earlier
decision taken in 2007 to indict Mr Zuma, could not be carried
out in
terms of s 179(5)(d).
3.
However, s 179(2) of the Constitution provides the following:
“
179(2)
The prosecuting authority has the power to institute criminal
proceedings on behalf of the state, and to carry out any necessary

functions incidental to instituting criminal proceedings.”
4.
In the NDPP v Zuma case, Harms DP said:
“
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 review them flows
from this.”
5.
These incidental
functions
would include the power of
prosecutors to reconsider a decision to prosecute or not to
prosecute.
6.
Thus where the decision to prosecute is taken by the NDPP, as
permitted in terms of s 22(9) of the NPA Act, the NDPP may reconsider

his or her own decision in terms of s 179(2).
7.
It is submitted that although Mpshe believed that he was acting in
terms of s 179(5)(d), which he was empowered to do, his decision
is
not invalidated thereby, because he was in any event vested with the
power to reconsider in terms of s 179(2).’
[55]
For the proposition set out in para 7 of the additional heads,
counsel on behalf of Mr Zuma relied
on
Latib v Administrator, Transvaal
1969 (3) SA 186
(T) and
Howick
District Landowners Association v Umgeni Municipality
2007 (1) SA 206
(SCA). In
Howick
the validity of a council resolution introducing a rates assessment
referred to the incorrect provision of a statute under which
it
purported to act. It was held that the resolution was not null and
void since the authority that the council wanted to invoke
was plain.
In
Latib
the
administrator of the then Province of the Transvaal, in issuing an
Administrator’s Notice declaring a certain route to
be a public
main road and throughway, inadvertently failed to mention a
particular subsection of a section of a Roads Ordinance
under which
he had made the declaration. The court in that case held that since
he had indeed acted under the appropriate empowering
legislation, the
notice was not invalidated because of the administrator’s
oversight. In
Latib
,
Galgut J said the following:
[14]
‘
It
seems clear, therefore, that, where there is no direction in the
statute requiring that the section in terms of which proclamation
is
made should be mentioned, then, even though it is desirable,
nevertheless there is no need to mention the section, and, further,

that, provided that the enabling statute grants the power to make the
proclamation, the fact that it is said to be made under the
wrong
section will not invalidate the notice.’
[56]
In its additional heads, counsel on behalf of the NPA sought to
distinguish the decision of the Constitutional Court in
Minister
of Education v Harris
[2001] ZACC 25
;
2001 (4) SA 1297
(CC). In that case the Minister had
invoked
s 3(4)
(i)
of the
National Education Policy Act 27 of 1996
to determine the age
requirements for the admission of learners to an independent school.
It was a power he did not have and the
court held that to be so. It
was submitted on behalf of the NPA that since Mr Mpshe in any event
had the power in terms of s 179(2)
of the Constitution to carry out
any necessary functions incidental to instituting criminal
proceedings, it was open to Mr Mpshe
to reconsider his own decision
in light thereof.
The
applications for leave to appeal
[57]
The two applications for leave to appeal, as stated at the beginning
of this judgment, were referred for oral argument in terms
of the
provisions of
s 17(2)
(d)
of the
Superior Courts Act. Section
17(1)
(a)
provides
:
‘
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that –
(a)
(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration.’
The
present case raises issues of public importance. As previously
mentioned, it is part of a longstanding litigation saga that
involves
the President of the Republic of South Africa. It concerns the office
of the NDPP and its powers and obligations. Furthermore,
the conduct
of prosecutors within the NPA falls to be considered. For these
reasons, apart from the question of prospects of success,
leave
should be granted in terms of the provision of
s 17(1)
(a)
(ii).
In this regard see
Minister
of Justice & others v Southern African Litigation Centre &
others
[2016]
ZASCA 17; 2016 (3) SA 317 (SCA)
[15]
It is now necessary to turn our attention to the merits of the
decision to discontinue the prosecution.
A
sudden and dramatic change of stance
[58]
At the commencement of proceedings before us, the following was put
to counsel on behalf of Mr Zuma: In
Harris
the
Constitutional Court had regard to
Latib
and the
dictum set out in para 55 above, but went on to distinguish the facts
of that case from the case it was considering. The
Constitutional
Court was dealing with a decision-maker who had consciously made an
election to rely on a statutory provision found
wanting.
[16]
Harris
was not
dealing with an inadvertent or incorrect reference to a statutory
power and where the person exercising the statutory power
had indeed
acted consciously under the proper empowering statute. It was dealing
with the obverse, as are we. Furthermore, in
Liebenberg
NO v Bergrivier Municipality & others
[2013] ZACC 16
;
2013 (5) SA 246
(CC), the Constitutional Court was
equally emphatic concerning the invocation and reliance on a
statutory power that was inapposite.
Jafta J, in a minority judgment,
in differing with the majority on the construction of a particular
word in a statutory provision,
set out the law in this regard. In
para 93 the following appears:
‘
In
our law, administrative functions performed in terms of incorrect
provisions are invalid, even if the functionary is empowered
to
perform the function concerned by another provision. In accordance
with this principle, where a functionary deliberately chooses
a
provision in terms of which it performs an administrative function
but it turns out that the chosen provision does not provide

authority, the function cannot be saved from invalidity by the
existence of authority in a different provision.’
[59]
Faced with this seemingly insuperable difficulty in relation to Mr
Mpshe’s incorrect invocation of s 179(5)
(d)
of the Constitution in reviewing the decision to discontinue the
prosecution, counsel on behalf of the NPA conceded that Mr Mpshe’s

decision to discontinue the prosecution was liable to be set aside
[60]
Counsel on behalf of Mr Zuma, in turn, summarily also conceded that
the decision to discontinue the prosecution was liable
to be set
aside and did not attempt to argue against the applicability of the
Constitutional Court decisions referred to in paras
56 and 58 above.
Mr Kemp, on behalf of Mr Zuma, accepted that the decision by Mr Mpshe
was irrational and that a rational decision
needed to be made.
[61]
Initially, counsel on behalf of the NPA argued that the statement by
the court below, that Mr Zuma should now face the charges
set out in
the indictment offended against the doctrine of the separation of
powers. When it was put to him, that in the event
of a finding that
the decision to discontinue the prosecution was liable to be set
aside, the ineluctable consequence was that
the decision to prosecute
made by Mr Mpshe on 29 November 2007 was revived, he was constrained
to concede that this was so.
[62]
Counsel on behalf of Mr Zuma was intent on recording that he reserved
all of his rights in relation to a revived prosecution.
It was
submitted that Mr Zuma would be within his rights to make
representations to be properly assessed in relation to the
discontinuation
of the prosecution and that Mr Zuma would have regard
to all the options at his disposal to resist being prosecuted. These
are
issues we are not required to address.
Conclusions
[63]
The problems for the NPA and for Mr Zuma go way beyond those relating
to the concessions made on the basis referred to above.
It is
unsettling that different law enforcement agencies of government
appear to be spying upon each other. Insofar as the tape
recordings
of the telephone conversations are concerned, other than the hearsay
evidence of the communications between the members
of the NIA and the
NPA, we have no admissible substantiation concerning the authenticity
or accuracy of the recordings. The alleged
judge’s certificate,
which would have indicated the breadth of the authorisation to record
telephone conversations, was not
made available to the court below or
to us. In terms of s 16 of the Regulation of Interception of
Communications and Provisions
of Communication-Related Information
Act 70 of 2002, an application for an interception direction has to
be made to a judge.
[17]
The
applicant has to comply with the requirements of that section.
Section 16 has very specific requirements, quite clearly intended
to
ensure that there is no infringement of rights other than in the
manner statutorily provided for. Section 43 of that Act enables
a
disclosure of the contents of intercepted communications to another
law enforcement officer, only to the extent that such disclosure
is
necessary for the proper performance of the official duties of the
authorised person, or the law enforcement officer receiving
the
disclosure. Section 42 prohibits the disclosure of information, save
in circumstances set out thereunder. There is no indication
of how
the recordings came to be in the possession of Mr Zuma’s legal
team. There are heavy penalties prescribed in relation
to
contraventions of the Act including those related to the prohibition
against disclosure.
[18]
The
question of the admissibility of the recordings as evidence and the
issues referred to above was never seriously addressed
by the NPA. It
ought to have been an issue to which the NPA paid greater and focused
attention. Instead, the NPA allowed itself
to be cowed into
submission by the threat of the use of the recordings, the legality
of the possession of which is doubtful
[64]
Furthermore, this Court raised with counsel on behalf of the NPA our
concerns about the nature and substance of Mr Hofmeyr’s

affidavit. We also enquired of counsel why Mr Mpshe, the decision
maker in the present case, was not the principal deponent and
why he
only made a ‘supplementary confirmatory affidavit’ after
the DA had provided its replying affidavit. Counsel
on behalf of the
NPA accepted that what was suggested to him was preferable and more
appropriate.
[65]
Early on in his affidavit, Mr Hofmeyr stated that he was tasked by Mr
Mpshe to investigate Mr Zuma’s claims of a political
conspiracy
which included ‘but were not limited’ to allegations that
Mr McCarthy manipulated the timing of the service
of the prosecution.
A careful consideration of Mr Hofmeyr’s affidavit reveals that
much of it is based on conjecture and
supposition. What follows are a
few examples of how careful one has to be in assessing his
assertions. In para 23 of his answering
affidavit on behalf of the
NPA the following is stated:
‘
Until
he listened to the recordings himself, Mpshe had been unaware of how
deep McCarthy’s association [with] Ngcuka still
was. Most
senior managers in the NPA, including Mpshe, knew that McCarthy and
Ngcuka were still friendly. We were unaware of the
extent to which
Ngcuka, using McCarthy as his proxy, was involved in directing the
Zuma prosecution, and possibly other investigations
and prosecutions.
It was Ngcuka, working with others, and not McCarthy, who ultimately
decided when Zuma should be charged.’
[66]
In the very next paragraph he stated the following:
‘
My
investigations revealed
that
McCarthy met regularly with Ronnie Kasrils . . ., former Minister of
Intelligence at critical points before and after the Polokwane

conference. They spoke in guarded terms and were careful not to
reveal too much information over the telephone. It appears further

(from the text of their conversations) that Kasrils acted as a
conduit for McCarthy to communicate with Mbeki without arousing
any
suspicion.’ (My emphasis.)
[67]
In para 26 of Hofmeyr’s affidavit the following appears:
‘
Both
Kasrils and Pienaar were close to Mbeki.
As
far as I am concerned
,
McCarthy’s interaction with them at critical points during the
Zuma investigation, coupled with the tone and content of
their
discussions . . ., demonstrated how closely McCarthy identified with
Mbeki’s political aspirations. It shows that he
was willing to
discuss sensitive NPA investigations with them and take direction
from them on what to do. As far as I was concerned,
Kasrils was a
confidant with whom McCarthy could discuss strategy about the Zuma
prosecution.
I believe
he
also served as an intermediary between McCarthy and Mbeki.’ (My
emphasis.)
[68]
At the end of para 30 of Mr Hofmeyr’s affidavit he stated the
following:
‘
He
did so for one reason only, to bolster Mbeki’s chances of
successfully defeating Zuma.’
[69]
In para 41 the following appears:
‘
It
was rumoured
that Mbeki
consulted Ngcuka on Pikoli’s suspension. Ngcuka was present at
a meeting between Mbeki and the Minister, on 11
March 2007 at which
Pikoli briefed Mbeki on the Selebi prosecution. We were very
surprised to learn that he had been present.’
(My emphasis.)
[70]
In para 43, Mr Hofmeyr stated:
‘
My
own investigations
into
Zuma’s allegations
showed
conclusively
that Ngcuka
and McCarthy had made politically motivated decisions about
prosecutions in at least two other high profile cases.
Both decisions
were intended to assist Mbeki. The NPA’s policy does not permit
me to disclose the identities of the two individuals
because of the
harm that it may cause them.’ (My emphasis.)
[71]
Mr Hofmeyr went on to state, in para 45:
‘
Mpshe
was deeply concerned about evidence of political interference and
manipulation of NPA cases
.
Although my investigations had begun to expose
the extent of this political interference, especially in relation to
McCarthy’s involvement in the Browse Mole report and
the Selebi
investigation, at the time of the press conference, my investigations
remained incomplete.’ (My emphasis.)
[72]
With reference to Mr Mpshe’s press statement he said the
following:
‘
Mpshe’s
press statement points out that it had not been possible to deal
fully with all of these aspects and come to firm
conclusions. He was
satisfied that there was sufficient evidence for him to conclude that
Zuma’s prosecution had been compromised
and that McCarthy had
behaved improperly. What he did not know was the extent to which
McCarthy had compromised other cases he
was responsible for.’
[73]
As can be seen, Mr Hofmeyr did not provide facts from which he or
this Court could draw such damning conclusions against any
of the
individuals mentioned. He speaks of his investigations, the ambit and
nature of which are not disclosed. He refers to rumours
and tells us
what he believes. He makes statements such as ‘as far as I am
concerned’. This is a wholly unsatisfactory
approach. He refers
to unconnected political activity which in my view was resorted to in
order to create atmosphere against Mr
McCarthy and those he
considered to be co-conspirators.
[74]
The position Mr Hofmeyr adopted in para 58 of his affidavit was the
one propounded to the world by Mr Mpshe, when he announced
the
decision to discontinue the prosecution:
‘
As
emphasised by Mpshe during the press conference held on 6 April 2009,
McCarthy used the legal process and his statutory powers
as head of
the DSO for ulterior and illicit purposes. It does not matter that
other members of the prosecution team acted properly,
honestly,
fairly and justly throughout the process. McCarthy’s conduct
amounted to a serious abuse of his power for an ulterior
purpose. For
Mpshe, his behaviour was an affront to his sense of justice.’
[75]
Mr Hofmeyr was intent on imputing the decision to prosecute Mr Zuma
to Mr McCarthy. He sought to dispel as untrue the statement
made on
behalf of the NPA in an affidavit in other litigation, that Mr Mpshe
had made the decision to prosecute. This was done
notwithstanding
that this Court in
Zuma
had decided on the evidence placed before it that Mr Mpshe had taken
the decision to prosecute Mr Zuma. In his affidavit in the
present
case, Mr Hofmeyr claimed that Mr McCarthy had taken the decision to
prosecute, almost immediately before turning to assert
Mr Mpshe’s
powers, purportedly in terms of s 179(5)
(d)
of the
Constitution, to review a decision of a Director of Public
Prosecution (DPP). The DPP he was referring to was Mr McCarthy.
One
is left with the impression that Mr Hofmeyr took up this position
because he was intent on legitimising Mr Mpshe’s decision
to
discontinue the prosecution. It appears contrived.
[76]
In resisting the DA’s application and supporting the decision
to discontinue the prosecution on the basis of Mr McCarthy’s

manipulation of the timing of the service of the indictment, Mr
Hofmeyr attempted to place the focus on Mr McCarthy being responsible

for the decision to delay the service of the indictment, until after
the Polokwane conference. However, as already alluded to,
he
contradictorily stated the following in his affidavit:
‘
On
6 December 2007 Mpshe called Downer for the second time. He told
Downer that although he was satisfied with the draft indictment,
he
had decided
to delay the
prosecution until the following year because he did not want to be
seen to be interfering with “the Polokwane
process”,
particularly in light of President Mbeki’s call for calm and
stability prior to Polokwane.
Mpshe
told Downer that he had also discussed the matter with the Minister
and that his conversation with her had given him further
“insight”
into why it was
necessary to delay the prosecution
. Downer was
understandably angry. He told him that by now the NPA should have
learned not to take instructions from the Minister.
Downer insisted
that the prosecution team would not support any decision to delay the
prosecution. He emphasised the importance
of making an announcement
by no later than 7 December 2007, the date on which the NPA’s
papers were due to be filed in the
Constitutional Court.’ (My
emphasis.)
Later
in his affidavit, Mr Hofmeyr stated that when he learnt that the
prosecution had been delayed, he was angry and could not
understand
how such a decision had been made. He says the following:
‘
The
decision was clearly intended to favour one faction in the ANC above
another.’
Mr
Hofmeyr stated that he had asked Mr Mpshe how the decision to
postpone the prosecution had come about. The latter, according
to Mr
Hofmeyr, confirmed that it was Mr McCarthy who had persuaded him that
it was necessary to postpone the prosecution. Mr Hofmeyr
went on to
say:
‘
Mpshe
felt that it was McCarthy’s decision. He was prepared to
support whatever decision McCarthy made.’
[77]
In the later ‘Supplementary Confirmatory Affidavit’ Mr
Mpshe said the following in para 19:
‘
I
also did not know about McCarthy’s discussions with Ngcuka, Mzi
Khumalo or Ronnie Kasrils in the run up to the ANC’s
Polokwane
conference. I became aware of this only during Zuma’s
representations. Although I gained the strong impression
from
listening to the recordings that McCarthy never agreed with Ngcuka,
he nevertheless did as he was asked. Had I known what
McCarthy’s
true motivation was, I would never have supported his decision to
postpone the prosecution.’
In
paras 24 and 25 Mr Mpshe stated the following:
‘
I
met with the Minister during the evening of 5 December 2007. I raised
with her the issue that the announcement would possibly
by delayed.
It was clear to me that she agreed that the prosecution should be
delayed. She was concerned that the NPA would be
perceived as
targeting Zuma ahead of the Polokwane conference.
The
following day (6 December 2007) I telephoned . . . Downer to inform
him of the decision to delay the Zuma prosecution. I told
Downer that
I had taken the decision to postpone the prosecution independently. I
told him that it was my decision and my decision
alone. I did so
because Downer was aware that I had met the Minister the previous
day. I did not want him to think that the Minister
had interfered or
that the Minister had unduly influenced me.’
[78]
Notes of meetings that Mr Mpshe held with the NPA management, with
and without the prosecution team, reveal Mr Hofmeyr leading
the
charge to discontinue the prosecution. At a meeting held on 30 March
2009 he was recorded as saying:
‘
We
will be criticised by those who want us to proceed
But
the depth of the corruption was so deep’
Earlier
during that meeting Mr Hofmeyr spoke of ‘ulterior motives’
and was recorded as being pessimistic about their
chances of opposing
an application for a permanent stay of prosecution. He also said that
manipulation by Mr McCarthy and Mr Ngcuka
had to be considered and
that the timing of the prosecution was important.
[79]
Much of Mr Hofmeyr’s motivation for the discontinuation of the
prosecution was based on the recordings attached to Mr
Mpshe’s
press statement. We were careful during the debate before us to
consider carefully, together with counsel on behalf
of the NPA, how
much reliance could be placed on them. Notes, the origins of which
are unknown, were made in the margin of the
transcripts of the
recorded telephone conversations. The notes themselves are largely
speculative and draw conclusions which are
not necessarily supported
by the recorded conversations. Questions of admissibility aside, the
conversations themselves do not
impinge on the integrity of the
charges against Mr Zuma nor do they intrude upon the merits of the
case. It is true that in the
recorded conversations there are
exchanges between Mr McCarthy and Mr Ngcuka about when Mr Zuma is to
be charged. Collectively,
the conversations do not show a grand
political design nor is there any indication of clarity of thought on
the part of Mr Ngcuka
or Mr McCarthy about how either former
President Mbeki or Mr Zuma would be decisively advantaged or
disadvantaged by the service
of the indictment on either side of the
Polokwane conference timeline.
[80]
The picture that emerges from the documents filed in the court below
is of an animated Mr Hofmeyr, straining to find justification
for the
discontinuation of the prosecution. Mr Hofmeyr discounted the
objective facts set out in para 34, namely, that the indictment
could
in any event not be served before the ANC conference because it had
only been finalised on 27 December 2007. One is, even
at this point
in time, left in the dark about how the service of the indictment
after the Polokwane conference would ultimately
and conclusively have
impacted more severely on Mr Zuma than if it had been served before
the conference. What is clear, however,
is that whatever Mr
McCarthy’s design might have been, it was superseded by the
fact that the indictment could only be served
after the conference.
Moreover, even if one accepts that Mr McCarthy had an ulterior
purpose in seeking to have the indictment
served after the
conference, his conduct had no bearing on the integrity of the
investigation of the case against Mr Zuma and did
not impact on the
prosecution itself. It also has to be borne in mind that Mr Mpshe
himself and the Minister thought it wise for
the sake of the
stability of the country, to have the indictment served after the
Polokwane conference. The fact that Mr McCarthy,
for his own reasons,
advocated to have the indictment served on 28 December 2007 rather
than after 1 January 2008, which was what
Mr Mpshe preferred, as
pointed out in Mr Steynberg’s note to Mr Hofmeyr, makes no
material difference.
[19]
[81]
I have already set out in some detail parts of Mr Hofmeyr’s
affidavit, which are but a small sample of the manner in
which he
approached the present litigation. He is an experienced litigator who
should know better than to present the case in the
manner described
above. Professedly advancing the cause of the NPA’s
independence and integrity, he achieved exactly the
opposite. One now
has a better appreciation of the reluctance of counsel on behalf of
the NPA to be associated with the affidavits
filed on its behalf.
[82]
The attack by the DA on Mr Mpshe’s decision to discontinue the
prosecution evolved into one based on rationality or,
rather, the
lack of it. Rationality review is concerned with the evaluation of a
relationship between means and ends: the relationship,
connection or
link (as it is variously referred to) between the means employed to
achieve a particular purpose on the one hand,
and the purpose or end
itself on the other. The aim of the evaluation of the relationship is
not to determine whether some means
will achieve the purpose better
than others but only whether the means employed are rationally
related to the purpose for which
the power was conferred.
[20]
Rationality review also covers the process by which the decision is
made. So, both the process by which the decision is made and
the
decision itself must be rational.
[21]
If a failure to take into account relevant material is inconsistent
with the purpose for which the power was conferred there can
be no
rational relationship between the means employed and the purpose.
[22]
[83]
Mr Mpshe’s stated purpose for discontinuing the prosecution was
to preserve the integrity of the NPA and to promote its
independence.
From his media statement it appears that Mr Mpshe was willing to
accept that the case against Mr Zuma was strong,
that fair trial
defences were not threatened and that there were no practical
difficulties in continuing with the prosecution.
The motivation for
discontinuing the prosecution appears to have been policy aspects
that militate against the prosecution. According
to Mr Mpshe’s
statement, the transcripts of the recordings that he attached to his
media statement contained material that
‘was of vital
importance in the NPA reaching its decision’. Towards the end
of the media statement the egregious conduct
which Mr McCarthy was
considered to be guilty of by Mr Mpshe and which in his view amounted
to an abuse of process was ‘the
timing of the charging of the
accused’.
[84]
It appears to me to be inimical to the preservation of the integrity
of the NPA that a prosecution is discontinued because
of a
non-discernible negative effect of the timing of the service of an
indictment on the integrity of the investigation of the
case and on
the prosecution itself. There is thus no rational connection between
Mr Mpshe’s decision to discontinue the prosecution
on that
basis and the preservation of the integrity of the NPA. If anything,
the opposite is true. In these circumstances discontinuing
a
prosecution in respect of which the merits are good and in respect of
which there is heightened public interest because of the
breadth and
nature of the charges and the person at the centre of it, holding the
highest public office, can hardly redound to
the NPA’s credit
or advance the course of justice or promote the integrity of the NPA.
[85]
The court below was right to take into account against Mr Mpshe, the
contradictory accounts as to who had made the decision
to delay the
service of the indictment. It does not assist Mr Mpshe to explain
that he had lied to Mr Downer in telling him that
he alone had made
the decision to delay the service of the indictment, when in fact it
was Mr McCarthy who had made that decision.
If anything affects the
integrity of the NPA, it is an ANDPP lying to a senior prosecutor.
The admitted deception compellingly
affects the credibility of Mr
Mpshe’s motivation for discontinuing the prosecution.
[86]
Furthermore, Mr Mpshe’s reliance on
Latif
for his decision to discontinue the prosecution was misplaced. The
abuse complained of in that case was that one of the accused
persons
had been incited by an informer and a customs officer to commit the
offences in question and had lured him into the court’s

jurisdiction. The court in
Latif
held that it was for a court to consider whether the abuse complained
of was such as to justify a stay of proceedings. Mr Mpshe
assigned to
himself the role reserved for courts. If he had had proper regard to
the decision in
Latif
,
he would not have used it to justify the decision to discontinue the
prosecution. Thus, he ignored relevant material such as the
relevant
dicta in
Zuma,
Latif
and the
appeal court judgment in
HKSAR
.
The courts in the latter two cases were emphatic that allegations of
abuse of process were within the remit of the trial court.
[87]
It is significant, as pointed out in para 36 above, that parts of the
media statement were plagiarised from the high court
judgment in
HKSAR
without
considering that they were inapplicable. More particularly, since
that judgment was overturned on appeal.
[88]
Moreover, Mr Mpshe ignored the dictum in the
Zuma
judgment by Harms DP that a bad motive does not destroy a good case.
A prosecution brought for an improper purpose, so said this
Court in
that case, is only wrongful if, in addition, reasonable and probable
grounds for prosecuting are absent. In the present
case, on the NPA’s
own version, the case against Mr Zuma is a strong one. Once it is
accepted that the motive for a prosecution
is irrelevant where the
merits of the case against an accused are good, the motive for the
timing of an indictment to begin the
prosecution must equally be so.
Mr Mpshe and Mr Hofmeyr appear to have overlooked the effect of this
judgment and uncritically
adopted the ‘ulterior purpose’
justification first mentioned by Mr Hofmeyr in the meeting referred
to in para 78 above.
[89]
The exclusion of the prosecution team from the process leading up to
the decision to discontinue the prosecution, especially
the final
deliberations that took place on 1 April 2009, was in itself
irrational. The compelling conclusion is that this exclusion
was
deliberate. The prosecution team’s subsequent memorandum
protesting their exclusion is understandable. They were senior

litigators steeped in the case, acquainted with the legal issues and
had a critically important contribution to make regarding
the
ultimate decision to terminate the prosecution. They had invested a
great deal of time and resources in gathering evidence
and building a
case that management in the NPA accepted was a strong one. The
memorandum pointed out that the views of the two
outside eminent
senior counsel, who had been advising the NPA, were inexplicably also
not solicited.
[90]
In asserting that the timing of the service of the indictment after
the Polokwane conference was influenced by Mr McCarthy
and was the
abuse of process that persuaded him to discontinue the prosecution,
Mr Mpshe failed to consider a material fact, namely,
that the
indictment would in any event not have been ready for service before
the Polokwane conference for the reasons set out
in para 34 above. It
will be recalled that there were errors in the indictment that
required correction and could only be finalised
on 24 December 2007,
after the conclusion of the ANC’s elective conference. This is
a consideration that was material to
arriving at a rational
conclusion. The importance of this is that whatever the motivations
of Mr McCarthy may have been in delaying
the service of the
indictment, the indictment was not ready to be served before the
conference. What is more, Mr Mpshe also believed,
following his
discussion with the Minister of Justice and Constitutional
Development early in December 2007, that it would be prudent
to
postpone the service of the indictment until after the conference to
avoid the suggestion, that the service of the indictment
before this
was politically motivated. Seen in this light, Mr McCarthy’s
alleged motives for delaying the service of the
indictment were
ultimately immaterial.
[91]
The submissions by the NPA set out in para 48 above, that when the
prosecution itself believes that there has been an abuse
of process,
it could not be expected of them to prepare for a case on the basis
that a court should later decide whether a stay
of prosecution is
justified. It was contended that, in those circumstances, it ought to
be left to the discretion of the prosecuting
authority to decide
whether to continue with the prosecution. I disagree. It is incumbent
on prosecutors to disclose to a court
any fact which, in their view,
may impact negatively on the prosecution and in favour of the
accused. This is in line with constitutional
values and the
provisions of the NPA Act. It is in the interest of the NPA, accused
persons and the public’s confidence in
the administration of
justice, that decisions concerning allegations of abuse of process be
made by a trial court.
[92]
In the light of what is set out in the preceding paragraphs, it
beggars belief that the present regime at the NPA, on its own
version
of events, saw fit to defend Mr Mpshe’s decision as being
rational. For all these reasons I can find no fault with
the
reasoning and conclusions of the court below that the decision to
discontinue the prosecution was irrational and liable to
be set
aside. A question one might rightly ask is why it took so long to
come to the realisation at the eleventh hour that the
case for both
the NPA and President Zuma had no merit.
[93]
I turn to deal with the concessions made by the NPA and Mr Zuma
referred to earlier. Section 179(5)
(d)
of the
Constitution clearly provides for a review by an NDPP of decisions
made by Directors of Public Prosecutions, in terms of
s 24 of the NPA
Act read with s 179(2) of the Constitution. In terms of s 24(1) of
the NPA Act, Directors of Public Prosecutions
have the power to
institute and conduct criminal proceedings and to carry out functions
incidental thereto as contemplated in s
20(3).
[23]
In para 6 of the NPA’s main heads of argument, they invoked s
179(5)
(d)
of the
Constitution read with s 22(2)
(c)
[24]
of the NPA Act as the basis for Mr Mpshe’s decision to
discontinue the prosecution. In essence, the contention on behalf
of
the NPA was that in reaching that decision Mr Mpshe was reviewing the
earlier decision made by Mr McCarthy, a Director of Public

Prosecutions, to institute criminal proceedings against Mr Zuma. In
light of the decision in
Zuma
,
that Mr Mpshe himself had made that decision to prosecute Mr Zuma,
the NPA’s reliance on s 179(5)
(d)
of the Constitution and s 22(2)
(c)
of the NPA Act, was misplaced. The concessions on behalf of the NPA
and Mr Zuma referred to earlier, seen against the authorities

referred to in paras 56 and 58 above, were undoubtedly correctly
made.
[94] To sum up:
(i)
The case presented by the NPA, principally through Mr Hofmeyr, was
that Mr McCarthy’s conduct, in influencing the timing
of the
service of the indictment so that it occurred after the ANC’s
Polokwane conference was so egregious that it amounted
to an abuse of
process to justify a discontinuation of the prosecution. This was
based largely on conjecture and supposition. The
allegations by Mr
Hofmeyr of political machinations on the part of Mr McCarthy were
irrelevant because they were unconnected to
the integrity of the
investigation of the case against Mr Zuma and the prosecution itself.
(ii)
The authenticity and legality of the recorded conversations which Mr
Mpshe considered vital to his decision to discontinue
the prosecution
are not beyond doubt. Since the recorded conversations were
considered vital, greater thought ought to have been
given by the NPA
to these issues.
(iii)
The manner in which the affidavits were drawn and the case conducted
on behalf of the NPA was inexcusable.
(iv)
The reasons for discontinuing the prosecution provided by Mr Mpshe do
not bear scrutiny for the recordings themselves on which
Mr Mpshe
relied, even if taken at face value, do not impinge on the propriety
of the investigation of the case against Mr Zuma
or the merits of the
prosecution itself.
(v)
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.
(vi)
The submission on behalf of the NPA and Mr Zuma, that Mr McCarthy had
a central role in the timing of the service of the indictment
is at
odds with the contradictory account provided by the NPA in relation
to who had made the decision about the timing of the
service of the
indictment. Mr Mpshe had told Mr Downer that the timing of the
service of the indictment had been his decision alone.
In a
supplementary affidavit he explained that he had been untruthful in
that regard in order not to bring Mr Downer under the
impression that
he had been influenced by the Minister of Justice and Constitutional
Development. That explanation itself impacts
negatively on Mr Mpshe’s
credibility and on the soundness of his decision to discontinue the
prosecution.
(vii)
The exclusion of the prosecution team from the final deliberations
leading up to the decision to discontinue the prosecution
appears to
have been deliberate and is in itself irrational.
(viii)
The case law that formed the basis for Mr Mpshe’s decision to
terminate the prosecution does not, in fact, support
it. On the
contrary, the cases, including an appeal court decision overlooked by
Mr Mpshe, are to the effect that questions of
abuse of process in
relation to a prosecution should be decided by a trial court and not
determined by way of an extra-judicial
pronouncement.
(ix)
In his media statement in which he provided reasons for terminating
the prosecution, Mr Mpshe referred to the following dictum
of this
Court in
Zuma
:
‘
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. The motive behind the
prosecution is irrelevant because, as Schreiner JA said in
connection
with arrests, the best motive does not cure an otherwise illegal
arrest and the worst motive does not render an otherwise
legal arrest
illegal. The same applies to prosecutions.’
However,
he missed its true meaning and import and misapplied it.
(x)
In the circumstances set out above Mr Mpshe’s stated purpose of
preserving the integrity of the NPA and advancing the
cause of
justice, can hardly be said to have been achieved. The opposite is
true. Discontinuing a prosecution in respect of which
the merits are
admittedly good and in respect of which there is heightened public
interest because of the breadth and nature of
the charges and the
person at the centre of it holds the highest public office, can
hardly redound to the NPA’s credit or
advance the course of
justice or promote the integrity of the NPA. Regrettably, the picture
that emerges is one of Mr Mpshe and
Mr Hofmeyr straining to find
justification for the termination of the prosecution.
(xi)
Thus the conclusion of the court below, that the decision to
terminate the prosecution was irrational, cannot be faulted.
(xii)
In reviewing his own decision to institute criminal proceedings
against Mr Zuma, and ultimately making the decision to terminate
the
prosecution, Mr Mpshe wrongly invoked and relied on s 179(5)
(d)
of
the Constitution and s 22(2)
(c)
of the NPA Act. These
provisions deal with the review by an NDPP of a decision of a DPP and
were inapposite. Thus, the concessions
on behalf of Mr Zuma and the
NPA that, on that basis, the decision to terminate the prosecution
was liable to be set aside, were
rightly made.
(xiii)
In light of what appears above, it is difficult to understand why the
present regime at the NPA considered that the decision
to terminate
the prosecution could be defended.
[95]
The appeal must therefore fail. The DA sought the costs of three
counsel which, in the circumstances of the case, is not without

warrant. The NPA and the President made common cause and should be
liable for the DA’s costs jointly and severally, the one
paying
the other to be absolved.
[96]
The following order is made:
1
The applications for leave to appeal are granted.
2
The appeals are dismissed with costs, including the costs of three
counsel and the costs related to the applications for leave
to
appeal. The National Prosecuting Authority and Mr JG Zuma are to pay
such costs jointly and severally, the one paying the other
to be
absolved.
______________________
M
S Navsa
Acting
Deputy President
Appearances:
Counsel
for the First Appellant:
H Epstein SC (with him A L Platt SC and P
B Khoza)
Instructed by:
The State Attorney, Pretoria
The State Attorney, Bloemfontein
Counsel
for the Second Appellant:     K J Kemp SC (with
him H Gani and J Thobela-Mkhulisi
Instructed by:
Hulley & Associates, Sandown
Honey Attorneys Inc., Bloemfontein
Counsel
for Respondent:

S P Rosenberg SC (with him H J De Waal, D P Bergström and S
Vakele)
Instructed by:
Minde Shapiro & Smith Attorneys,
Belville
Symington & De Kok, Bloemfontein
[1]
From his poem, Little Gidding, which
forms part of
Four
Quartets
, a series of
poems that discuss time, perspective, humanity and salvation. Part
of the poem from which it is taken reads as follows:
‘
In
the uncertain hour before the morning
Near
the ending of interminable night
At
the recurrent end of the unending. . .’
[2]
The office of the National Director
of Public Prosecutions (the NDPP) was established in terms
of
s 179(1)
(a)
of the Constitution read with s 5 of the National Prosecuting
Authority Act 32 of 1998 (NPA Act).
[3]
The Head of the Directorate of
Special Operations was established in terms of s 7 of the NPA Act.
[4]
In paras 3-7.
[5]
The core of the State’s case
had been that Mr Shaik and corporate entities under his control had
made numerous separate
payments of money directly to, or for the
benefit of, the then Deputy President of South Africa, Mr Jacob
Zuma, as bribes for
the latter to advance Mr Shaiks’ business
interests. President Zuma has complained on an on-going basis that
he was prejudiced
by not being charged together with Mr Shaik whilst
having to endure the slur of his alleged criminal conduct. See also
para 12
infra. For the details concerning Mr Shaik’s
convictions, see the judgment of this Court in
S
v Shaik & others
[2006]
ZASCA 105
;
2007 (1) SA 240
(SCA) and the subsequent judgment of the
Constitutional Court in
S v
Shaik & others
[2007]
ZACC 19
;
2008 (2) SA 208
(CC) refusing an application for leave to
appeal against the convictions and sentences.
[6]
As reflected in para 5 of
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA 1; 2009 (2) SA 277 (SCA).
[7]
See
Thint
Holdings (Southern Africa) (Pty) Ltd & another v National
Director of Public Prosecutions; Zuma v National Director
of Public
Prosecution
s
[2008] ZACC
14
;
2009 (1) SA 141
(CC) in paras 40-42 and also para 75 of the
National Director of Public
Prosecutions v Zuma
[2009]
ZASCA 1
;
2009 (2) SA 277
(SCA) judgment.
[8]
Para 6 of the
National
Director of Public Prosecutions v Zuma
2009
(2) SA 277 (SCA).
[9]
Section 22(2)
(c)
of the NPA Act echoes the
provisions of s 179(5)
(d)
of the Constitution. It reads as follows:
‘
In
accordance with section 179 of the
Constitution
,
the
National Director
–
.
. .
(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.’
This
power of review vested in the National Director of Public
Prosecutions has to be seen against the general power vested in
the
Prosecuting Authority in terms of s 179(2) of the Constitution, to
institute criminal proceedings on behalf of the State
and to carry
out any necessary functions incidental thereto. One also has to have
regard to the powers of Directors of Public
Prosecutions set out in
s 24(1) of the NPA Act which include the power to initiate and
conduct criminal proceedings and functions
incidental thereto. In
addition, in terms of s 22(1) of the NPA Act, the NDPP, as the head
of the prosecuting authority, has
authority over the exercise 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.
[10]
Although Mr Zuma was not the
President of the country at the time, he was nominated by the ANC
and expected to be elected as President
after the general elections,
scheduled to take place in May of that year (2009).
[11]
See
National
Lotteries Board & others v South African Education and
Environment Project
[2011]
ZASCA 154
;
2012 (4) SA 504
(SCA) at para 27.
[12]
HKSAR
v Lee Ming Tee & another
[2001] HKCFA 32
;
(2001)
4 HKCFAR 133
; FACC 8/2000 (22 March 2001).
[13]
HKSAR v LEE Ming Tee and
Anor
[2003] HKCFA 34
;
(2003) 6 HKCFAR 336
in para
184; FACC 1/2003 (22 August 2003).
[14]
At 190H-191A.
[15]
See paras 22-23. See also Van
Loggerenberg
Erasmus
Superior Court Practice
vol.
1 (service issue 4) at A2-56.
[16]
In this regard, see para 17 and 18 of
Harris
.
[17]
Interception direction is defined in
s 1 as ‘a direction issued under section 16(4) or 18(3)(a) and
which authorises the
interception, at any place in the Republic, of
any communication in the course of its occurrence or transmission,
and includes
an oral interception direction issued under s 23(7)’.
[18]
See s 51.
[19]
See para 23 above.
[20]
See
Democratic
Alliance v President of South Africa
[2012] ZACC 24
;
2013 (1) SA 248
(CC) para 32.
[21]
See
Albutt
v Centre for the Study of Violence and Reconciliation & others
2010 (3) SA 293
(CC) and
DA
v President of the RSA
2013 (1) SA 248
(CC) ibid paras 33 and 34.
[22]
See
DA
v President of the RSA
ibid para 40.
[23]
Section 20(3) reads:
‘
Subject
to the provisions of the Constitution and this Act, any Director
shall, subject to the control and directions of the National

Director, exercise the powers referred to in subsection (1) in
respect of –
(a)
The area of jurisdiction for which he
or she has been appointed; and
(b)
Any offences which have not been
expressly excluded from his or her jurisdiction, either generally or
in a specific case, by the
National Director.’
[24]
Section 22(2)(c) provides:
‘
In
accordance with section 179 of the Constitution, the National
Director –
.
. .
(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. ‘