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[2016] ZAGPPHC 255
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Democratic Alliance v Acting National Director of Public Prosecutions and Others (19577/2009) [2016] ZAGPPHC 255; 2016 (2) SACR 1 (GP); [2016] 3 All SA 78 (GP); 2016 (8) BCLR 1077 (GP) (29 April 2016)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO: 19577/2009
DATE:
29/4/2016
In
the matter between:
DEMOCRATIC
ALLIANCE

Applicant
and
ACTING
NATIONAL DIRECTOR OF PUBLIC

First   Respondent
PROSECUTIONS
THE
HEAD OF THE DIRECTORATE
OF

Second  Respondent
SPECIAL
OPERATIONS
JACOB
GEDLEYIHLEKISA
ZUMA

Third  Respondent
THE
SOCIETY FOR THE PROTECTION OF OUR
CONSTITUTION

Amicus  Curiae
QUORUM:
LEDWABA DJP; PRETORIUS J and MOTHLE J
DATE
OF HEARING:  1 TO 3 MARCH 2016
DATE
OF JUDGMENT:
JUDGEMENT
TH
E COU RT:
I
NTRODUCTION:
1.
This is a review application launched on 7 April 2004 by the
Democratic Alliance (''DA"), the official political opposition

party in the Republic of South Africa. The DA asks this Court to
grant the following relief:
''
2
.
Reviewing, correcting and setting aside the decision of the
First Respondent, taken on or about 6 April 2009, to discontinue the

criminal prosecution of [Mr] Zuma, in accordance with charges
contained in an indictment of 27 December 2007;
3.
Declaring that the decision of the First Respondent referred to
in paragraph 2 above to be inconsistent with the
Constitution of the
Republic of South Africa, 1996, and invalid;"
and
appropriate cost orders.
2.
The respondents opposing this application are as follows:
2.1
The first respondent is the Acting National Director of Public
Prosecutions ('ANDPP''), who was at that time
Adv. Mokotedi Mpshe SC
("Mr Mpshe'');
2.2
The second respondent is the head of the Directorate of Special
Operations ('DSO"),
namely Adv Leonard McCarthy ("Mr
McCarthy"). At the time when this application was launched, the
DSO was still operational.
It has since been disbanded;
2.3
The third respondent is Mr Jacob Gedleyihlekisa Zuma,
('Mr
Zuma'
)
,
the current President of the
Republic of South Africa. At the time this application was
instituted, Mr Zuma was not yet the President
of the Republic of
South Africa.
3.
In addition to the respondents, an entity known as "The Society
for the Protection of our Constitution" was admitted
to the
proceedings, as
amicus curiae
by authority of the court order
dated 18 September 2015.
4.
On or about 28 November 2007 a corporate decision to prosecute Mr
Zuma afresh was made by Mr Mpshe, Mr McCarthy and the prosecution

team. Previously charges preferred by the then National Director of
Public Prosecution, Adv Pikoli, were struck from the roll by
the Kwa
Zulu Natal Division of the High Court during September 2007;
5.
The decision to charge Mr Zuma in November 2007 was coincidentally
taken at a period when the African National Congress (ANC)
was about
to hold its National Electoral Conference scheduled for 16 to 20
December 2007 at Polokwane. A president of the ANC was
to be elected
at the said conference. The main contestants for the presidency were
Mr Zuma and the former President Mbeki.
6.
The timing of the service of the indictment on Mr Zuma became an
issue. The prosecution team, in particular, Mr Downer, wanted
same to
be served immediately, regardless of the pending ANC conference. The
view of Mr Mpshe was that service should be affected
in early 2008
after the Polokwane conference was held, so as not to present an
appearance of political  interference  by
the  NPA,
in  influencing  the  outcome  of  the
leadership contest. Mr McCarthy's view
changed and he wanted service
to be delayed until after the conference.
7.
The respondents' main reason for opposing this application is that Mr
McCarthy unduly influenced and interfered with the service
of the
indictment for political reasons.
8.
On 1 April 2009 Mr Mpshe took a decision to discontinue the
prosecution against Mr Zuma and announced it publicly on 6 April

2009. The said decision to discontinue the prosecution triggered this
application.
9.
It took almost seven (7) years since this review application was
launched, for it to be heard by this Court. The reason for the
delay
is, amongst others, that there were two main interlocutory
applications which emanated from this review application, following

each other, we briefly refer to the said applications:
9.1
The first
interlocutory application concerned a challenge that was raised by
the ANDPP
and Mr Zuma in
the Gauteng
High Court Division, Pretoria before Ranchod
J
.
The
ANDPP and
Mr
Zuma
contended
that the
DA did
not have
locus
standi
to
bring
this review
application;
raised the
reviewability
of the
decision
of
Mr Mpshe
and the question whether
the ANDPP
was
compelled
to furnish
the
record of
his
decision
to
the
DA. The
decision
of
Ranched J
granting
the orders
in favour
of the
ANDPP
and
Mr Zuma,
was reversed
on
appeal
by the
Supreme
Court
of Appeal
(“SCA")
in the
matter
of
DA
and
Others
v
Acting
National
Director
of
Public
Prosecution and Other
s
[1]
9.2
In the matter of
Democratic
Alliance
v
Acting
National
Director of
Public
Prosecutions
and
Others
which came  before Mathopo J in the Gauteng
Division, Pretoria, the Court had to determine whether the transcript
of the conversations
as recorded in the tapes should be disclosed in
terms of Rule 53 of the Rules of The High Court. The SCA upheld the
judgment of
Mathopo J that the transcript of the recordings should be
disclosed and further ordered that the transcript of the recordings
be
redacted in order to protect the confidentiality concerning the
representations made by Mr Zuma to the ANDPP.
BACKGROUND
10.
The decision to charge and prosecute Mr Zuma was preceded by a
protracted investigation that started in 2001.
11.
Mr Mpshe was appointed as the ANDPP on 29 September 2007 alter Mr
Pikoli had been suspended. The prosecution team investigating
the
case of Mr Zuma consisted of Adv. Downer SC (Mr Downer), Adv A
Steynberg (Mr Steynberg), Adv George Baloyi (Mr Baloyi) and
Adv Du
Plooy (Mr Du Plooy). The team and Mr McCarthy were also advised by
two private senior counsel, namely Adv Wim Trengrove
SC and Adv
Breytenbach SC.
12.
From November 2007, Mr McCarthy kept Mr Mpshe and his deputies in the
NPA updated about the investigation of the matter
of Mr Zuma. In
preparation to finalise the charges, the application for
centralization of charges in terms of
section 111
of the
Criminal
Procedure Act 51 of 1977
, was submitted to Mr Mpshe on 20 November
2007. The prosecuting team briefed Mr Mpshe and his deputies on 29
November 2007 and
the decision to prosecute was finally approved. It
is common cause that the decision to prosecute Mr Zuma afresh was a
corporate
decision at the time.
13.
In the beginning of December 2007 a report in terms of section 33 of
the National Prosecuting Authority Act, 32 of 1998 (''the
NPA Act'')
was submitted to Minister B. Mabandla ("the Minister") the
then Minister of Justice and Constitutional Development.
Mr Mpshe and
the Minister had a conversation on 4 December 2007,  where it is
stated that the Minister raised concern regarding
the safety and
stability of the country, should the indictment be served before the
Polokwane conference.
14.
On 5 December 2007, the day after the meeting with the Minister, Mr
Mpshe informed Mr Downer that the service of the indictment
would be
delayed until January 2008.
15.
The indictment was served on 28 December 2007 on Mr Zuma.
16.
In June 2008 Mr Zuma launched an application in terms of section 179
of the  Constitution  of  the
Republic
of    South  Africa, 1996, (''the
Constitution") in the Kwa-Zulu Natal Provincial
Division of the
High Court for a review of the decision taken to prosecute him. On 12
September 2008, Nicholson J ruled in favour
of Mr Zuma. The ANDPP
challenged Nicholson J's judgment on appeal in the SCA. On 12 January
2009 the SCA overturned Nicholson J's
judgment.
17.
On 10 February 2009 the NPA received written representations from the
legal representatives of Mr Zuma.  These representations
were
made on behalf of Mr Zuma, but Mr Zuma did not confirm the
representations under oath. We pause to mention that the national
and
provincial elections were scheduled to take place on 22 March 2009
and the inauguration of the President of the Republic of
South Africa
would take place on 9 May 2009.
18.
On 20 February 2009 Mr Zuma's legal representatives made further oral
representations to Mr Mpshe and his deputies, as well
as Mr
Mngwengwe.  According to Mr Mzinyathi's notes forming part of
the record of proceedings, the Browse Mole matter was
discussed at
this meeting. The Browse Mole Report was released in November 2007 by
the Joint Standing Committee.  The report
revealed an unofficial
attempt to besmirch the person and integrity of Mr Zuma. Mr McCarthy
was implicated in the compiling of
the report and was openly
criticised by the Committee, which recommended that action be taken
against him. No action was taken
against McCarthy.
19.
On 3 March 2009 the prosecution team considered the representations
made by Mr Zuma's legal representatives on 3 March 2009
and submitted
a memorandum to Mr Mpshe dealing with both the written and oral
representations, giving detailed reasons for the
rejection of these
representations.  A material suggestion at the time was that the
oral representations should be reduced
to writing in an affidavit.
This never took place.
20.
During 6 to 16 March 2009 Mr Zuma's legal representatives allowed Mr
Mzinyathi and Mr Hofmeyr to listen to the tapes of the
intercepted
telephone and SMS conversations between Mr McCarthy and Mr Ngcuka, as
well as between Mr McCarthy and Minister Mabandla,
and between Mr
McCarthy and various other parties.
21.
In the meeting, held on 18 March 2009 where Mr Mphse was also
present, the NPA management informed the prosecuting team of the

contents of the oral representations by Mr Zuma's legal
representatives and came to the conclusion that they had a good case
to
be pursued against Mr Zuma.
22.
There are two letters prepared in March 2009 in consideration of the
representations and in which a response is prepared to
Mr Zuma's
attorneys by the prosecuting team and Mr Mpshe.  These letters
form part of the record of proceedings.  Annexure
"D18"
is the draft that was sent to Adv Trengove SC to settle and annexure
"D7" is the letter settled that
was to be sent to Mr Hulley
in response to the written and oral representations.   It
is not clear if the response was
delivered to Mr Hulley.
23.
The DA became aware that the legal representatives of Mr Zuma had
made representations to the NPA concerning the pending prosecution.

They also requested to make representations.  On 20 March 2009
Mr Mpshe informed the DA as follows:
"You
are
most
welcome
to
make
wr
i
tten
r
e
presenta
t
ions
to
m
e
,
I must
however
request
that
it
reaches
me
on
or
before
27
March
2009
a
s
t
his
is
the
d
ate
I
have
set
for
myself
to
a
p
ply
my
mind
to all
t
he
information
su
p
plied
and
still
to
be
supplied.
You
will a
p
preciate
t
hat
due
to
t
he
wi
d
e
publicity in
t
he
matter
it
is
in
the
interest
of
all
concerned
t
hat
I
co
n
sider
t
he
r
e
presentations
as
s
peedily
a
s
possible.
'
24.
On the same date, and after the prosecution team had received Adv
Trengove SC's opinion and/or advice, they informed Mr Mpshe
of the
essence of it.  The gist of the information submitted to Mr
Mpshe is recorded as follows:
''He
advised
a
gainst
accedi
n
g
to
t
he
r
e
presen
t
ations.
T
he
proper
forum for evaluati
n
g
t
he
all
e
gations
and
t
heir relevance to fair
tr
i
al w
a
s
t
he court
a
s envis
a
ged
in the
permanent s
t
ay
arrangements
t
hat we
had
already
settled wi
t
h
t
he
d
efence
and
t
he
Ju
d
ge-President'
25.
On 23 March 2009 Mr Mpshe informed the DA that he was not at liberty
to adhere to their request to have insight into Mr Zuma's

representations as the representations had been made confidentially
and without prejudice.
26.
On 30 March 2009 a meeting took place between Mr Mpshe, his deputies,
Mr Mgwengwe and the prosecuting team. According to Mr
Mzinyathi's
notes, which were recorded at the meeting, Mr Mpshe indicated that on
1 April 2009 he would make his decision.
Mr Mpshe did not
indicate as to the reason for making the decision on 1April 2009.
27.
Mr Mpshe said he was satisfied that they had a strong case on the
merits of the case.  Mr Mpshe, his deputies and the prosecution

team had no doubt that the prosecution would proceed. Importantly at
that stage Mr Mpshe had been informed of the contents of the

intercepted messages between Mr Ngcuka and Mr McCarthy.
28.
On 30 March 2009 Mr Mpshe addressed a letter to Mr McCarthy informing
him about the audio recordings regarding the contents
of the tapes.
Mr McCarthy replied on 31 March 2009 requesting more
information regarding the intercepted communications,
so that he
could deal with the allegations against him.
29.
At the time Mr Mpshe had indicated to the deputies that he wanted Mr
McCarthy and Mr Ngcuka's responses to the tapes before
making a
decision.
30.
Prior to 31 March 2009, Mr Mpshe had been reluctant to listen to the
tapes.  This is stated in the ANDPP's answering affidavit

deposed to by Mr Hofmeyr, and confirmed by Mr Mpshe.
31.
On 31 March 2009 the deputies and Mr Mpshe personally listened to the
tapes in the evening. This after Messrs Hofmeyr and Mzinyathi
had
previously reported to Mr Mpshe and informed him and his deputies as
to the contents of the tapes.
32.
On 1April 2009, the following day, Mr Mpshe met with his deputies and
informed them that he had been disturbed at what he had
heard on the
tapes.  He had decided to discontinue the prosecution.
33.
The record of the proceedings reflects that Mr Downer recorded on 2
April 2009 that Mr Hofmeyr was of the view that the prosecution

should be stopped, but both the prosecution team and the other
deputies were of the view that the prosecution should continue.
It is
clear from the memorandum that on 2 April 2009 the prosecution team
had not been informed of the decision already taken to
discontinue
the prosecution.
34.
On 3 April 2009 Mr Downer was still of the same opinion, but unaware
of the decision already made by Mr Mpshe on 1April. He
opined as
follows:
"
T
he recommendations should be
declined along
the lines of our
d
raft
letter
to Mr Hulley
which has now been
considered'
35.
Mr Downer, furthermore set out the two questions as advised by
Trengove SC, legal adviser to the prosecution team.  These
are:
"(a)
Can I say that my decision to prosecute was not improperly influenced
my (sic) Adv McCarthy's improper motives? [A simple
sine qua non test
can be applied here]; and if not
(b)
Am I now still satisfied, with ex post facto knowledge of Adv
McCarthy's shenanigans, that the decision was on the merits
the
correct
one?”
36.
On 6 April 2009 Mr Mpshe met with the prosecution team led by Mr
Downer to inform them of the decision he had made to discontinue
the
prosecution. He later publicly announced the decision, taken on
1April 2009, to discontinue the criminal prosecution, stating
his
reasons in the press release.
37.
Mr Downer, the leader of the prosecution team, records later in the
memorandum dated 9 April 2009 as follows:
"
T
he
l
e
gal
a
s
pects of the motivation
were not
given to
u
s for
comment
beforehand.
I
n
t
he
few
minutes
before
t
he
pre
s
s
conference it was
impossible to
digest
and comment on the
l
e
gal
justification given for
t
he
d
ec
i
s
ion.
Nor was
t
here the
opportunity utilised
to
run
t
his
re
a
soning
past
two
counsel
who
were
available
and
eminently
qualified
to
advice
on
th
e
se
i
s
su
e
s.”
38.
On 7 April 2009 the DA launched the present application.  On 8
April 2009 the charges against Mr Zuma and Thint were formally

withdrawn by the Kwa Zulu Natal Division of the High Court.
THE
REASONS
FOR
MR MPSHE'S
DECISION OF
1 APR
I
L 2009
39.
The reasons to discontinue the prosecution against Mr Zuma were
stated by Mr Mpshe in an address to the media on 6 April 2009.In

essence, Messrs McCarthy, Nqcuka and others, are alleged to have
manipulated the timing of the envisaged service of the indictment
to
Mr Zuma, against the latter for political reasons. The service of the
indictment was supposed to be used to disadvantage Mr
Zuma in his
contest against Mr Mbeki, for the presidency of the ANC.
40.
In announcing his decision to discontinue the prosecution, Mr Mpshe
stated thus:
“
.......All
members
of
the
senior
management
and
the
prosecuti
n
g
t
e
am
participated
in
this
d
iscus
s
ion,
and
ultimately
I
t
ake
full
r
e
s
ponsibility
for
t
he
dec
i
sion
I
make...
“;
He
further stated that:
".....
The representations submitted by the legal representatives pertained
to the following issues:
•
T
he subs
t
antive
merits
•
T
he fair
trial defenc
e
s
•
T
he
practical
implications
and
considerations     of
continued prosecu
t
ion
•
T
he policy
a
s
pects militati
n
g
a
gainst
prosecution
I
need to
s
t
ate
u
pfront
t
hat we
cou
l
d
not
find
anything wi
t
h
r
e
gard
to
t
he
first
t
hree
grounds
t
h
at
militate
a
gainst
a
continuation
of
t
he prosecu
t
ion.......
"
And
then that:
"....In
the present matte the conduct consists of the timing of the charging
of the accused ...
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.
McCarthy
used the legal process for a purpose other than that 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 ones sense of justice.....
"
And
he concludes as follows:
“
In
t
he l
i
ght of
t
he abov
e
,
I
have
c
ome to
t
he
difficult conclu
s
ion
t
h
at
it
is
neither
possible
nor
d
e
sirable
for
t
he
N
P
A to
continue
wi
t
h the
prosecution
of
Mr
Zuma.....
“
Of
importance he also stated that:
"Let
me
also state
for
the
record
that
the prosecution
team
itself
had
recommended
t
hat
t
he
prosecu
t
ion
should
continue even if
t
he
all
e
gations
are
t
ru
e
,
and
t
hat
it
should
be
left
to
a
c
ourt
of law
to
de
c
ide
whether
to
stop
t
he
prosecut
ion."
(Court's emphasis)
41.
There are thus three important decisions at the centre of this
review, namely:
41.1
The first decision was that of the NPA and DSO to prosecute Mr Zuma.
This decision was taken on or about 28 November
2007;
41.2
The second decision, of 6 December 2007, concerns the timing of the
service  of the indictment on  Mr Zuma.
This is the
decision which concerned the alleged misconduct by Mr McCarthy. The
questions raised herein are who took the decision,
when and why?; and
41.3
The third decision of 1April 2009 is the one made by Mr Mpshe to
discontinue the prosecution of Mr Zuma. According to
Mr Mpshe, the
reason for this decision emanate from the alleged misconduct of Mr
McCarthy as stated above. It is this decision
that is the subject of
this review.
42.
The main reason for the 1April 2009 decision to discontinue the
prosecution is captured succinctly on the bottom
of page 4 and the
top of page 5 of Mr Mpshe's statement, where he opines as follows
about how an abuse of process may occur on
its own:
"......a)
It will not be possible to give the accused a fair trial,· or
b)
It will offend ones sense of justice/ integrity and propriety to
continue with the trial of the accused in the particular case.

Discontinuation is not a disciplinary process undertaken in order to
express ones disapproval of abuse of process; it is an expression
of
ones sense of justice and propriety. (See Connelly v DPP
1964 AC
1254)
"
43.
It is against this background that the Court now turns to deal with
the grounds of review of Mr Mpshe's decision to discontinue
the
prosecution of Mr Zuma.
THE
DA'S GROUNDS OF REVIEW
44.
When this
review
application
was
launched
on
7 April
2009,
the grounds
of
review
supporting
the
relief
sought were
initially
based on
the
provisions
of s 6 of
the
Promotion
of
Administrative
Justice
Act
(PAJA),
[2]
in line with
the
decision
in
Bato
Star
Fishing
(Pty)
Ltd
v
Minister
of
Environmental
Affairs
and
Tourism
and
Others
[3]
.
45.
The
reviewability
of
a
decision
to
discontinue
a
prosecution
was
considered
and
dealt with
by
Navsa
JA,
in the
matter
of
DA
v
Acting NDPP
and
Another
[4]
.
After
considering the
question,
the
SCA
concluded
that
a
review
of
a
decision
to
discontinue
prosecution
can be
reviewable
on
the
grounds
of
legality
and
irrationality.
[5]
This
view
was
further
endorsed
in
the
matter
of
The
NDPP
v
Freedom
under
Law
[6]
where
the
Court
stated
in
paragraph
29
as follows:
"[29]
As
demonstrated
by
the
numerous
cases
since
decided
on
the
basis
of
the
legality
principle,
the
principle acts
as a
safety net to
give the Court
some degree of
control
over
action that does
not
qualify
as
administrative under
PAJA,
but
nonetheless involves  the
exercise  of
public  power.
Currently
it
provides
a more limited basis of review than PAJA.   Why
I say "currently" is
because
it
is
accepted
that
'legality is
an
evolving
concept
in
our jurisprudence,
whose
full
creative
potential will
be
developed
in the context-driven
and
incremental
manner.'
. . .
But for
the
present
purposes
it
can
be
accepted
with
confidence
that
it includes
review
on
grounds
of
irrationality
and
on
the
basis
that the
decision-maker did
not
act
in
accordance with
the
empowering statute
(see:
Democratic
Alliance  and  Other
v Acting
National
Director
of
Public
Prosecutions
and
Others
2012
(3) SA 486
(SCA para's 28 to 30)."
RATIONALITY
AS
A
GROUND
OF
REVIEW
46.
In
paragraph
32
of
its
judgment,
the
Constitutional
Court
in
A/butt
v
Centre
for
the
Study
of
Violence
and
Reconciliation
and
Others,
[7]
explains
rationality
review as
being really
concerned
with  the evaluation
of a
relationship
between
means
and ends -
the
relationship,
connection
or
link
between
the
means
employed
to achieve
a
particular
purpose
on the
one
hand and
the
purpose
or
end itself.
In
paragraph
51, the
Constitutional
Court
held thus:
"
. . . But, where the decision is challenged on the grounds of
rationality, Courts are obliged to examine the means selected
to
determine whether they are rationally related to the objective sought
to be achieved. What must be stressed is that the purpose
of the
enquiry is to determine not whether  there  are other means
that could have been used, but whether the means selected
are
rationally related to the objective sought to be achieved. And if,
objectively speaking, they are not, they fall short of the
standard
demanded by the Constitution."
47.
Rationality
involves
substantive
and
procedural
issues.
[8]
It
follows
therefore
that both
the process
by
which
the decision is
made
(the
means)   and
the
decision
itself   must
be
rationally
related.
This
principle was
confirmed
by the
Constitutional
Court
in
DA
v
President of
the
Republic
of
South Africa
[9]
.
48.
I
n
the
matter
of
Freedom
Under
Law
v
National
Director
of
Public
Prosecutions
and
Others
[10]
,
Murphy
J
dealt
with
the
question
of
the review
grounds
under
PAJA,
of
a
decision
to
prosecute.
This
matter
went
on
appeal to the SCA
[11]
where
the
Court
held that
the
decision
to
discontinue
a
prosecution
or
not
to
prosecute
can
be
reviewable
not under
PAJA but on the basis of the
principle
of
legality
and irrationality.
I
mportantly,
further
that
in
deference
to
the
doctrine
in
separation
of powers,
it is not appropriate for a court seized with a review application,
and upon setting aside the decision, to step into
the shoes
of
the
prosecution
and
grant
orders
and
directives
as
to
how the
prosecution
should be carried out from that point onwards.
49.
The DA subsequently amended its grounds of review based on PAJA and
narrowed them to the grounds of irrationality and legality,
in line
with the authorities cited above. The applicant and respondents'
counsel, by agreement,  mainly based their arguments
on the
ground of irrationality. The  parties did not present arguments
relating to the declaratory  relief  sought
by
the  applicant  that  the  decision  of
Mr Mpshe was unconstitutional.
THE
REPONDENTS' CONTENTIONS
50.
It was argued on behalf of the 1st and 2nd respondent, the AND PP and
the DSO, in essence, that having regard to the Browse
Mole report
criticising Mr McCarthy's conduct of leaking information to the media
and the contents of the transcript, Mr Mpshe
was justified in
deciding to discontinue the prosecution of Mr Zuma and that his
decision was rational.
51.
Mr Zuma's counsel argued that even if the merits of the state's case
were strong, the decision to discontinue was rational and
justified
because according to the contents of the recorded conversations the
NPA's independence would be affected and it would
be seen to be
meddling with political decisions. Counsel further submitted that the
fact that the plan of Mr McCarthy to negatively
influence the
election of Mr Zuma as President of the ANC was unsuccessful,
was immaterial. The abuse by Mr McCarthy was
of such a serious nature
that the decision not to prosecute was rational.
52.
In our view, the alleged conduct of Mr McCarthy as appears from the
transcript of the recorded conversations, if
proven,
constitutes a serious breach of the law and prosecutorial policy.
It is not even necessary to refer to his role in the Browse Mole

report for which it seems he was not admonished. His conduct as
alleged in the transcript,
again
if
proven,
certainly calls for intervention. This will involve an enquiry
into the allegations, and if need be, also censure by a court of law.
53.
On being informed by Mr Hofmeyr and Mr Mzinyathi about the content of
the recordings, Mr Mpshe surprisingly did not immediately
confront Mr
McCarthy and his predecessor Mr Ngcuka about the allegations. He only
did that on 30 March 2009 two days before he
took the decision to
discontinue the prosecution. Both officials, who were no longer in
the employ of the prosecution authority,
requested access to the
content of the tape recordings before they could comment. This was a
reasonable request. Mr Mpshe however
felt it unnecessary to wait for
their response and proceeded to make the decision on 1 April 2009. He
thus made a half-hearted
attempt at investigating and verifying the
allegations before he took the decision. He had thus breached a
cardinal rule of
audi
alteram
partem
i.e hearing the other side before making an intervention.
54.
Mr Mpshe in his media address concedes that the substantive merits
and the fair trial defences of the prosecution of Mr Zuma
were not
tainted by the alleged conduct of Mr McCarthy. However the form of
censure Mr Mpshe chose, by discontinuing the prosecution,
failed to
demonstrate a connection or linkage to the alleged conduct of Mr
McCarthy. That is the essence of this review. The submissions
of
respondents' counsel have similarly, in our view, not addressed the
question of this required connection or linkage necessary
to
determine if the decision meets the test of rationality.
55.
The
amicus
curiae
argued that the DA should have
brought the review application in terms of the provisions of PAJA and
that bringing the application
in terms of irrationality is
unconstitutional. It was further argued that the decision to
prosecute or not to prosecute is by law
taken by the Deputy Director
of Public Prosecutions, not the National Director of Public
Prosecutions. Therefore, it is argued,
Mr Mpshe could not have had
the authority to take the decision as alleged.
56.
The submissions of the
amicus
curiae
are clearly
way off the mark and not supported by any decided cases. Writing for
the SCA in the matter of NDPP v Zuma
supra
,
Harms DP explained the powers  of  the NDPP in
reviewing a decision to prosecute in paragraphs 70, 71 and 75, thus:
"70.
I
therefore conclude
that
s
179(5)
(d)
does not apply to
reconsideration by the
NOPP
of
his
own
earlier
decisions but
is
limited
to
a
review
of
a
decision
made
by
a
OPP
or
some
other prosecutor
for
whom
a
OPP is responsible.
71.
. . .
The
head
of
the
OSO
is
a
post-Constitution
creation
and
is not
a
OPP
but
a
deputy
NOPP
in
terms of the NPA Act
(s
7(3)).
Further, the fact that he joined in the decision-making does not mean
that the decision is no longer that of the NOPP. If
the argument were
correct, it would mean that the Mpshe decision was also not one made
by the NOPP and would fall beyond the provision
and destroy the basis
of Mr Kemp's whole argument  because it, too, was made jointly
with the head of the OSO"
And
at paragraph 75:
"75.
In
addition,
as
held
by
the
Constitutional
Court,
as
soon
as
the matter
had been
struck
from the roll by
Msimang
J
,
the
criminal
proceedings
were
terminated
and
the
proceedings were
no
longer
pending.
Removal
of
a
matter
from
the
roll
aborts
the
trial
proceedings.
The
effect
of
this
is
that
what
went
before
the
Mpshe
decision
was
spent
and
a
new decision
to
prosecute
was
required.
The
Mpshe  decision was not simply
a
review
of
the Ngcuka
decision,
which
was no
longer extant. On
these
facts, s 179(5)
(d)
had, irrespective
of
whichever   interpretation
is
correct,
no
application, and Mr
Zuma's reliance on it was misplaced."
57.
In regard to the submission that the DA should have brought the
application for review in terms of PAJA, as submitted by Mr
Omar, we
refer to the decisions of DA v Acting NDPP supra and The NDPP v
Freedom Under Law supra, where the two judgments deal
extensively
with the ground of review of a prosecution under PAJA and in terms of
the principle of constitutional legality.
58.
It needs to be mentioned that the
amicus
curiae
has disappointingly failed to add any value to these proceedings.
RATIONALITY
OF  THE DECISION AND ABUSE OF PROCESS DOCTRINE
59.
The
NDPP
derives
his/her
authority
from
s179
of
the
Constitution
of
The
Republic
of
South
Africa,
Act
1996,
[12]
("the
Constitution"),
read
with
the
National
Legislation
enacted
in terms
of
Section
179(7),
being
the
NPA
Act
[13]
More
specifically,
s22
thereof
which
deals
with the
powers
of
the
National
Director,
as
well
as
the
Regulations
dealing
with
Prosecutorial
Policy.
The
prohibited
conduct
of
NPA
officials, including offences and penalties
are
dealt
with  under
s41. The
National Director
of Public
Prosecutions
is
also
empowered
to issue
Policy
Directives
which
serve
as
a
guide
to
prosecution.
Part 2 of
the
Prosecution
Policy
Directives
dated 1st
June
2014
deals
with the
prosecution
authority,
while
Part
5
thereof,
deals
with
withdrawal
of
cases
and
stopping
of
prosecutions.
The
NDPP
and
all
officials
of the
prosecution
are
required
to
act
within
the
confines
of
these
legal
instruments.
60.
One of the objectives of the legal framework is to protect and
preserve the integrity of the prosecution authority and its
processes. The objective sought to be achieved through the decision
to discontinue the prosecution of Mr Zuma, was, in Mr Mpshe's
view,
to protect the integrity of the NPA and its processes.
61.
Thus the decision to discontinue the prosecution was, according to Mr
Mpshe, a response to the alleged abuse of  power
by Mr McCarthy,
when the latter allegedly manipulated the timing of the service of
the indictment on Mr Zuma, as a tool to achieve
a political advantage
for President Mbeki, prior to the election of the leadership of the
ANC at the Polokwane Conference.
62.
In the
12-page
media
address
announcing
his
decision
to
discontinue
the
prosecution
of
Mr Zuma,
Mr
Mpshe
relies on
the
abuse
of
process
doctrine.
The
DA submits
that the
words
used
by Mr
Mpshe in
his statement
have 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
[14]
This
decision
was
however
overturned
on
appeal
[15]
where
the
Appeal
Court
stated
as
follows:
"
184.
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
weight
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."
63.
In the
same
media
address,
Mr
Mpshe
also
referred
to
the
British
case
of
R v
Latif
[16]
,
as
authority
for
the
application
of the
abuse
of process
doctrine. The Court on page 360 H
-
J and 361 D
-
E
states thus:
"
If
the
Court
always
refuses
to
stay
such
proceedings,  the
perception
will
be
that
the
Court
condones
criminal
conduct
and
malpractice
by
law
enforcement
agencies.
That
would
undermine
public
confidence
in
the
criminal justice system
and
bring it
into disrepute. On
the
other
hand, if the Court
were
always to
stay
proceedings
in such cases, it
would
incur the
reproach
that it
is failing
to protect
the public
from
serious
crime.
The
witnesses
of
both
extreme
positions
leaves   only
one principle
solution.
The Court has
a
discretion;
it has to perform
a balancing exercise."
On
page 361 D - E the court said:
"
General
guidance
as
to how
the
discretion
should
be
exercised in particular
circumstances
will not be useful. But it is possible
to
say
that in
a
case such
as
the present
the Judge
must
weigh- in
the
balance between the
public interest
in
ensuring that
those
that are
charged
with
grave
crimes
should
be
tried
and
the
competing
public  interest  in
not
conveying  the
impression  that
the
Courts  will adopt  the  approach  that
the end justifies  any means."
64.
In
making
reference
to
this
case, Mr
Mpshe
surprisingly
omitted
to
mention that the Courts in
both
the HKSAR
appeal and
the Latif
matters
[17]
were
of
the
view
that
the
determination
of
the
principles
of
abuse
of process was an exercise for a Court of law and not an extra­
judicial pronouncement.
65.
Mr Mphse disregarded, without given reasons, the recommendation of
the prosecution team  that, even if the allegations
regarding Mr
McCarthy are true, the decision to stop the prosecution was to be
made by a court of law.
66.
The Court in the Latif matter also held that the application of the
abuse of process involved a balancing of two imperatives.
The one
imperative is where the Court does not act on misconduct and
malpractice by law enforcement agencies. A failure to do so
will
raise the ire of the public. The second imperative is the instance
where the trial is discontinued, such as in this case.
In such an
event the criminal justice system as a whole, and not only the NPA,
will incur the reproach that it is failing to protect
the public from
serious crime. Mr Mpshe disingenuously omitted to consider or deal
with this second imperative in his media address.
67.
The
manner
in
which
the
prosecuting
authority
must
approach
an
allegation of
abuse of
process doctrine was also  dealt
with  by
the SCA
in the
NDPP
v
Zuma
[18]
where
the
Court
held thus:
"[37]
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
conclude
d
..
.
"
(Court
emphasis)
68.
A court of law is the appropriate forum to deal with the abuse of
process doctrine, not extra- judicial process. Prior to 1
April 2009
and after he was briefed about the contents of the tapes, Mr Mpshe
subscribed to the view advocated by Mr Downer and
the prosecution
team, that the allegations raised in the tape and the representation
by Mr Zuma's legal team, must be subjected
to judicial process, if
anything, to test the veracity thereof. He concedes in the press
statement that the prosecution team held
this view, but on 1 April
2009,  he  inexplicably  and  irrationally
abandoned  this  view.
In the March
2000 draft letter to Mr Hulley referred to Mr Mpshe and the NPA
officials expressed the view, that the matters
raised in the
representations made on behalf of Mr Zuma must be dealt with by a
court of law during the trial.
69.
It is interesting that Mr Mpshe decided to discontinue the
prosecution although in March 2009 Mr Mpshe and the prosecution team

recorded the following:
".
.
..I
do
not
consider
that
this
matter
in
itself will
prevent
your
client from having
a
fair trial.
If
your
client believes
I
am
wrong in
this
assessment, then
he
will
have
the
opportunity
to
persuade the
court
in
his
intended
permanent stay application or
during the
criminal
trial
itself'.
70.
In February 2009 the Kwa Zulu Natal Division of the High  Court
issued an order, by agreement between the parties that
Mr Zuma would
file papers for a permanent stay of  prosecution  on  18
May 2009. This meant that such an application
had to be filed in
about six weeks' time. Mr Mpshe does not state why he could not wait
for a further six weeks for the application
for a stay of prosecution
to be filed so that the court could ultimately deal with it. The
matter has a protracted  history
since  2007  and
we  do  not  understand  why  Mr Mpshe
wanted to finalize  the
matter within  a  month
after  receiving representations from Mr Zuma's legal
representatives.
71.
The legal
authorities
cited
above, of
which Mr
Mpshe
should have
been aware
[19]
or
so advised,
do
not support
the
decision
taken
by
him in
an
instance
such
as
this one
under
review,
where
the
abuse of
process
doctrine
is applied
in an
extra-judicial
exercise
of
public
power,
when
the
prosecution
against
an
accused
is
discontinued.
In this
instance, the basis
of
the alleged
abuse of process rested
on legally
untested
allegations
which
were
unrelated
to
the
trial
process and
the
charges. It
is
thus
our
view
that
Mr
Mpshe,
by
not
referring
the
complaint
of
abuse
of
process
and the
related
allegations
against Mr
McCarthy to
court,
rendered
his
decision
irrational.
72.
In the
answering
affidavit
by Mr
Hofmeyr,
confirmed
by Mr
Mpshe,
it
is stated
that
when he,
Mr
Mpshe,
admitted
to
having
told
Mr
Downer that
the decision was
his and
no one
else's,
he
was
deliberately
withholding
the
version
that
he
had
been
influenced
by
Mr
McCarthy to
delay
the
service
of the
indictment.
This
particular
version
was
not
disclosed
to
Mr
Downer
during
the
conversation
on
5 December
2007.   Mr
Mpshe,
in
his
Supplementary
Affidavit,
presented
after
the DA
had
delivered
its
Replying
Affidavit
[20]
raised
a
new
explanation
when
he
stated
under oath
as follows:
"
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."
73.
The paragraphs from Mr Mpshe's supplementary affidavit as quoted
above, read with Hofmeyr's affidavit, as to who took the decision
to
delay the service of the indictment and why, presents three
contradictory  versions:
73.1
The first version is that he, Mr Mpshe took the decision, which was
his and his alone. The reason being in consideration
of the speech by
the then President Mbeki calling for calm ahead of the ANC elections
in Polokwane;
73.2
The second version is that he took the decision after being
influenced by Mr McCarthy. He does not indicate when this
alleged
influence occurred and why he allowed himself to be so influenced
whilst knowing of Mr McCarthy's participation in the
Browse Mole
matter since November 2007. He further stated in a draft letter to be
sent to Mr Hulley in March 2009 that he was not
influenced by Mr
McCarthy. The decision to  not withdraw the charges was set out
in this draft as follows:
"After
anxious
consideration, I
have
concluded that
my decision
to
indict
your
client
in
2007
was
not
influenced, improperly
or
otherwise, by
Adv McCarthy.
This
is
notwithstanding the
fact
that
we
both
agreed
on
the
decision. Even
in
the
event
that
I
am
wrong
in
this
conclusion, having now
again
reconsidered
the decision,
even
taking
into account your
representations,
I remain
convinced
that it
was
and
is
the correct
decision."
(Court emphasis)
This
decision was the decision to prosecute.
73.3
The third version is that it was Mr McCarthy who took the decision
and he Mr Mpshe, felt he had to support it.
If this was indeed so,
why did he have a difficulty in disclosing this unpopular decision
that was not his, to Mr Downer, who at
that time was reporting to Mr
McCarthy?
74.
It seems, from the reading of the answering affidavits of Mr Hofmeyr,
confirmed by Mr Mpshe (on behalf of the NDPP) and Mr Hulley
(on
behalf of Mr Zuma) that an attempt is made to attribute the decision
to postpone the service of the indictment, to Mr McCarthy.
Mr Mpshe
portrays himself first as a person who was in charge and
independently took the decision; secondly, that he was not persuaded

by the Minister but he was influenced by Mr McCarthy to delay the
prosecution; and thirdly, that he (Mr Mpshe) acted as an official
who
was supporting a decision made by Mr McCarthy. It may well be that
there is a plausible explanation for these contradictions.
However,
the consequence of failing to refer this matter to court as it was
agreed among the prosecution team, the NPA and after
so advised by Mr
Trengove, shows that Mr Mphse's decision is irrational.
75.
The DA submits, within the context of Mr Mpshe appearing to disown
the decision to delay the service of the indictment, that
Mr Mpshe
lied when he failed to disclose the truth to Mr Downer on 5 December
2007. It seems reasonable to infer that Mr Mpshe
was also persuaded
by the discussion in the meeting with the Minister on the evening of
4 December 2007, the day before he telephoned
Mr Downer. On his own
version, he did not want Mr Downer to form an impression that he was
influenced by the Minister, not Mr McCarthy
as he now suggests
in his  supplementary   affidavit.
Significantly,   he  neither
mentioned to Mr
Downer then that Mr McCarthy had influenced him, nor that the
decision was made by Mr McCarthy. If it was Mr McCarthy's
decision,
nothing prevented Mr Mpshe from stating this to Mr Downer. The
latter's anger or disappointment would then  have
been directed
at Mr McCarthy.
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.
78.
In an attempt to bolster this obvious irrational explanation, the NPA
and Mr Zuma brought into their answering affidavits, the
previous
conduct of McCarthy in regard to his role in the Browse-mole report.
The Browse-mole Report did not relate to the timing
of the service of
the indictment, which in this instance is the high water mark of Mr
Mpshe's reason to discontinue the prosecution
of Mr Zuma. It only
served to describe the character of Mr McCarthy as an officer who is
inclined to meddle in political affairs,
nothing more. It was
information well known to Mr Mpshe even before he heard the tapes of
the recorded conversations. It is irrational
to argue that it
constitutes the basis upon which the prosecution was to be
discontinued.
79.
Thus the information on which Mr Mpshe based his decision to
discontinue the prosecution of Mr Zuma, is inconsistent  with,

and does not support the allegation that by seeking to delay
the service of the indictment, Mr McCarthy sought to influence
the
outcome of elections and therefore demonstrated an abuse of process.
There is thus no rational link between the alleged misconduct
of Mr
McCarthy and the decision of 1 April 2009.
80.
As already stated, the decision to discontinue the prosecution of Mr
Zuma was taken0. The chronology of events stated earlier
in this
judgment,   indicate  that  at  all
material  times  and  since  the
27
of judgment, indicate that at all material times and since the
27 of November 2007, the decision of Mr Mpshe and
senior  members
of the management team of the NPA had been  to continue with the
prosecution. The prosecution team led
by Mr Downer also held this
view, even after Mr Mpshe had, unknowingly to the prosecution team,
taken the decision to discontinue
the prosecution.
81.
Even
after
the
legal
representatives
of
Mr Zuma
had
made
representations
to
Mr    Mpshe    and
senior
members
of    the management of
the NPA
during
February
2009,
the
view
was
consistently
held
that
the
prosecution must
continue.
[21]
There is
no
record that
there
was
a
change
of this
view,
right
up to
the
evening
of the
31
March
2009
when
Mr
Mpshe
and
other
senior
members
of the
management
team
listened to
the tapes.
82.
Mr Hofmeyr records in his affidavit that he and Mr Mzinyathi briefed
Mr Mpshe and other senior members of the NPA, on the content
of the
tapes. Therefore, at the time when Mr Mpshe decided to listen to the
tapes on 31 March 2009, he had been briefed about the
content and
knew what to expect. However, the following day on the 1 April 2009,
Mr  Mpshe  announced  to
the  NPA
Senior  Management  that after  listening  to
the  tapes,  he  was
angry  and  felt
betrayed  and therefore have decided to discontinue the
prosecution.
83.
When Mr Mpshe announced his decision on 1 April 2009, no discussion
was held with Senior Members of the NPA to source their
views on this
subject. This omission is critical, considering that up to 31 March
2009, they have been collectively discussing
and agreed to continue
with the prosecution. They too had been briefed on the content of the
tape and on the evening of 31 March
2009, they heard the tape with Mr
Mpshe. It is expected that they individually would have formed some
views on the matter. Failure
to source their views under the
circumstance was irrational.
84.
Mr Mpshe did not reveal that he had heard new information on the
tape, which was not stated to him previously by Messrs Hofmeyr
and
Mzinyathi during their briefing and which caused him to change his
mind. There is no evidence that after he had listened to
the tapes,
there was something specifically that he had heard which was not
brought to his attention during the briefing. The record
reflects
that he still held the view that the prosecution must continue, even
after he was briefed on the content of the tapes.
His sudden
inexplicable turnaround on this matter is clearly irrational.
85.
Mr
Mpshe
referred
to
the
pressure
exerted
on
the NPA
concerning
the
fate
of
the
intended
prosecution
of
Mr
Zuma.
During
argument,
counsel
for
Mr
Zuma
stated
that
his
client
needed
a
response
from the
NPA as
he was
due to
be sworn
in as
President
of the
Republic
of South
Africa
within
a
few
weeks.
[22]
Mr
Mpshe
was
subjected
to
such
pressure that
he could
not afford
the time
and
space
to
properly
apply his
mind
on
the
implication
of
what
he was
about
to
do.
He failed
to exercise
and apply
the
balancing
act of the two
imperatives
necessary
for the
consideration
of the
abuse
of
process
doctrine.
86.
Mr Mpshe ensured that the prosecution team and Mr Downer were not
informed of the decision, until 6 April when he was to announce
it to
the public. If indeed the decision had been rational and  above
board, why the secrecy? Needless to state that Mr Downer,
unaware
that the decision had been taken on 1 April 2009, the following day
on 2 April 2009 submitted a comprehensive memo, motivating
why the
prosecution needed to continue.
87.
Mr Mpshe did not allow, or offer an opportunity  to Mr
Mngwengwe, the Director of Public Prosecution in Kwa Zulu Natal,
who
had authorised  the  indictment  and thus  the
prosecution,  to  listen to the tapes and
state his
views. It was, after all, the indictment he had signed concerning a
case he had authorised prosecution, which was being
discontinued.
88.
Mr Mpshe failed to explain how the information he had heard on the
tape could be said to have affected, compromised or tainted
the
envisaged trial process and the merits of the intended prosecution.
In fact, in his media address, he concedes that the alleged
conduct
of Mr McCarthy had not affected the merits of the charges against Mr
Zuma. There was thus no rational connection between
the need to
protect the integrity of the NPA and the decision to discontinue the
prosecution against Mr Zuma.
89.
He totally ignored the concerns he had personally raised prior to
making the decision; that the information from the tape and
the
representation from Mr Zuma's lawyers had to be investigated,
verified and the tapes authenticated.
90.
Mr
Mpshe
in
his
own
words
on
1 April
2009
stated
that
he felt
angry and
betrayed.
It is the
view
of this
Court that
his
feelings
of
anger
and
betrayal
caused
him to
act
impulsively
and
irrationally,
considering
the factors
as
stated
in the
preceding
paragraphs.
He
did
not
allow
himself
time
to
consider
the
question
whether
the
very
decision  he was
about
to
take,
could
be
regarded
by
other
people
facing
similar
charges throughout
South
Africa,
as a breach
of
the
principles of equality  before
the  law
or
that  it
would  be
an
abuse
of
process
to
discontinue
charges
against
people
of
high
profile
or
standing
in
the
community.
[23]
The
NPA
ignored
its
own
view
as
set
out
in
the
draft
letter that
was
to
be sent to
Mr Hulley
which
conveyed:
"The
conflict between
your
client's
defence
and
the prosecution's
evidence can only be determined if all the
evidence the
prosecution
and
your client wish to
adduce is
presented
and tested in
a
court of law."
91.
For the reasons set out above, this court finds that there are no
substance in the submissions of the respondents and the
amicus
curiae.
CONCLUSION
AND FINDING
92.
Having
regard
to
the
conspectus
of
the
evidence
before
us
we
find that
Mr
Mpshe
found
himself
under
pressure
and
he decided
to
discontinue
the
prosecution
of
Mr
Zuma
and
consequently
made
an
irrational decision.
Considering
the situation in
which
he
found
himself,
Mr
Mpshe
ignored
the
importance
of
the
oath
of
office
which
demanded
of
him to
act
independently
and without
fear
or favour.
[24]
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.
93.
The respondents further argued that since the charges against Mr Zuma
were formally withdrawn in court on 8 April 2009  after
Mr
Mpshe decided to discontinue the prosecution the order sought in the
notice of motion may be of no consequence. We are
constrained to
state that said technical argument was not raised in the papers and
it cannot render the order we are to make herein
inept and
ineffective.
94.
This Court, for the reasons stated above, finds that the decision of
1 April 2009 by Mr Mpshe to discontinue the prosecution
of the case
against Mr Zuma is irrational and
should
be reviewed and set aside.
COSTS
95.
The costs follow the result and the respondents should bear the costs
of this application, jointly and severally, the one paying
the others
to be absolved.
96.
Concerning the
amicus
curiae,
in
exercising our judicial discretion, we think it would not be
appropriate to make a cost order against it because it was admitted

by the court and the opposition to its application was withdrawn by
the applicant. Furthermore,  the applicant did not persist
that
a cost order should be made against the
amicus curiae.
97.
In the premises it is hereby ordered:
1.
The application succeeds.
2.
The decision of the first respondent, dated 1 April 2009,
to
discontinue the prosecution of the case against the third respondent
in accordance with the indictment served on him on 28 December
2007
is reviewed and set aside; and
3.
The first, second and third respondents are ordered, jointly
and
severally, to pay the costs of the applicant, including the costs of
three counsel.
4.
No cost order against the
amicus
curiae.
_____________________________
A
LEDWABA
Deputy
Judge President of the High Court
Gauteng
Division,
Pretoria
_______________________________________
C
PRETORIUS
Judge
of the High Court
Gauteng
Division, Pretoria
____________________________
S
P MOTHLE
Judge
of the High Court
Gauteng
Division, Pretoria
For
the
Applicant:
Adv. S   Rosenberg SC
Assisted
by:
Adv. J de Waal
Adv.  D Borgstrom
Adv. S Vakele.
Instructed
by:
Minde Schapiro & Smith Inc.
For
the First and Second Respondents:
Adv. H Epstein SC
Adv. H Maenetje SC
Assisted
by:
Adv. A Platt
Instructed
by:
The State Attorney
For
the Third Respondent:
Adv. K J Kemp SC
Adv. A Gabriel SC
Assisted
by:
Adv. H S Gani
Adv. T Khuzwayo
Instructed
by:
Hulley & Associates Inc
Amicus
Curiae:
Attorney Zehir Omar
[1]
2012
(3) SA 486
SCA
[2]
Act
3
of 2000.
[3]
2004
(4)
490
(CC)
at para
25,
where
O'Regan
J
held that
the
grounds
of
review
are
now based
on
PAJA as
codified
in s6
thereof,
and
no longer
under
common
law.
[4]
2012
(3)
SA 486
(SCA)
at
p494 from
para 23.
[5]
The SCA dealt with the history of the review as developed in
Pharmaceutical
Manufacturers
Association
of
South Africa
and
Another
In
Re: Ex Parle the President
of the
Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) and
Affordable Medicines Trust and Others v Minister of Health and
Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC).
[6]
2014 (4) SA 298 (SCA)
[7]
2010
(3) SA 293
(CC).
[8]
Albutt supra at
[9]
2013 (1) SA 248 (CC)
[10]
2014 (1) SA 254
(GNP)
[11]
2014(4) SA 298 (SCA)
[12]
Act
108
of
1996.
[13]
Act
32
of
1998,
which
has
since then
been
amended.
[14]
Case number: HCCC 191/1999 ( Unreported judgment of the Hong Kong
High Court,
[15]
HKSAR and Lee Ming Tee and The Securities and Futures Commission,
Case number FACC No 1
of 2003.
[16]
1996 (1) WLR
104
[17]
Supra
[18]
2009 (2) SA 277 (SCA)
[19]
The NDPP v Zuma judgment  is dated 12 January 2009, well before
the decision on 1 April 2009 and concerned the office occupied
by Mr
Mpshe as the appellant.
[20]
Mr
Mpshe
deposed to
the
first
confirmatory
affidavit,
dated 30/03/2015
in
support of
the NDPP's
answering
affidavit  of Hofmeyr. He
then
deposed  to
the
second
affidavit,
stated as supplementary  affidavit
and
dated
30/06/2015
after
the
DA's
Replying
affidavit.
[21]
This
appears
from
the
Answering
Affidavit
of
Mr
Hofmeyr
as
well
as
the
draft
memoranda
and
letter
included
in the
record as
07 and
08.
[22]
In fact,
Mr Zuma
was
sworn
in as
President
on
9
May
2009,
the
month
after the
decision
to
discontinue
the
charges
was
taken.
[23]
See the
R
v
Latiff
supra.
[24]
See s32 of the
NPA Act
for the full text of the oath.