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[2016] ZAGPPHC 489
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Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC 489 (24 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
24/6/2016
Case
Number: 19577/09
Reportable:
No
Of
interest to other judges: No
Revised:
Yes
In
the matter between:
THE
ACTING NATIONAL DIRECTOR OF
PUBLIC
PROSECUTION 1
st
APPLICANT
THE
HEAD OF THE DIRECTORATE OF
SPECIAL
OPERATIONS 2
nd
APPLICANT
JACOB
GEDLEYIHLEKISA
ZUMA 3
rd
APPLICANT
AND
DEMOCRATIC
ALLIANCE 1
st
RESPONDENT
IN
RE:
DEMOCRATIC
ALLIANCE APPLICANT
AND
THE
ACTING NATIONAL DIRECTOR OF
PUBLIC
PROSECUTION 1
st
RESPONDENT
THE
HEAD OF THE DIRECTORATE OF
SPECIAL
OPERATIONS 2
nd
RESPONDENT
JACOB
GEDLEYIHLEKISA
ZUMA
3
rd
RESPONDENT
SOCIETY
FOR THE PROTECTION OF OUR CONSTITUTION
AMICUS
CURIAE
JUDGMENT:
APPLICATION
FOR LEAVE TO APPEAL
THE
COURT
1.
INTRODUCTION
On
29 April 2016 the Court delivered a judgment in a review application
("the main judgment") launched by the Democratic
Alliance
("the DA"), against the Acting National Director of Public
Prosecutions ("ANDPP"), the Director of
Special Operations
("the DSO") and Mr Jacob Gedleyihlekisa Zuma ("Mr
Zuma"), the current President of the Republic
of South Africa.
2.
The
DA in that application sought to have reviewed and set aside the
decision by Adv Mpshe SC, the then ANDPP, to discontinue the
prosecution of the charges against Mr Zuma. The Court in the main
judgment ordered that 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.
3.
The
ANDPP and the DSO, the first and second applicants on the one side,
and Mr Zuma, the third applicant on the other side, lodged
separate
applications for leave to appeal the main judgment. The applicants
further seek leave to appeal against the findings of
facts and/or
rulings and/or interpretation of law relating to rationality. The DA,
the respondent, is opposing both applications
for leave to appeal.
4.
The
ANDPP and DSO based their applications on six grounds. Some of the
grounds raised in their application and the grounds raised
in Mr
Zuma's application overlap. Mr Zuma, in addition, contends that there
are "some
other compelling reasons why the appeal should be
heard".
5.
THE
SUPERIOR COURTS ACT
1.
Section 17(1)
of the
Superior Courts Act 10 of
2013
, provides as follows:
"(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;
(b) …”
2.
We shall not deal with the grounds of appeal
raised by the applicants
ad seriatum
and
we shall briefly deal with the said grounds as set out hereunder.
6.
REFERRAL
OF THE ABUSE OF PROCESS
It
was submitted and argued by the applicants' counsel that the Court
erred in finding that Adv. Mpshe acted irrationally by not
referring
the complaint or abuse of process and the related allegations against
Mr McCarthy to Court, thus rendering his decision
irrational. The
ANDPP and DSO in the application further stated that the effect of
the finding of the Court is that Adv. Mpshe
acted
ultra vires
his powers.
7.
The
ANDPP and DSO submitted that the National Director of Public
Prosection (NDPP) has a duty to protect the institutional integrity
of the institution and it is the NDPP who is
best positioned
to
weigh the seriousness of abuse within his own hierarchy.
8.
We
record that the background facts in this case are common cause. The
applicants in their applications and during argument did
not
challenge the Court's presentation of the background facts. It is
important to clarify that the respondent (the DA) in the
main
application, did not seek an order that the determination of the
principle of abuse of process was an exercise for a court
of law and
not that of the NPA. Furthermore the court did not make such a
finding or such an order that in all instances the determination
of
the principle of abuse of process should be determined by a Court of
law.
9.
The
applicants are notably silent about what the court said in paragraphs
70 and 71 of the main judgment. They were selective as
they focused
on certain portions in the judgment thus totally disregarding the
essence and the order thereof.
10.
When
the main judgment is read as a whole, it is clear that on the
circumstances and/or facts of this case, the Court is the appropriate
forum to deal with the abuse of process doctrine. It is therefore not
correct for the applicants to select certain portions of
the judgment
and deduce a wrong conclusion about the judgment. The Court did not
find that Adv. Mpshe acted
ultra vires
his powers as
submitted by the applicants.
11.
TAINTING OF THE
PROSECUTION
The
ANDPP and the DSO submitted in paragraph 2.1 of their heads of
argument that the finding of the Court that the envisaged prosecution
was not tainted is wrong. They further submitted that the Court
should have found that the prosecutorial process was tainted and
it
was not irrational for Adv. Mpshe to discontinue the prosecution
under the circumstances.
12.
It
is clear in the main judgment that on the facts of this case, a Court
was an appropriate forum to deal with the issue of whether
the
prosecution was tainted or not. It is interesting to note that the
applicants impliedly state that it is the Court that should
make such
a finding whilst at the same time, they also argue that it is the
NDPP only who can make such a finding.
13.
The
main judgment clearly explains why the Court is better placed to deal
with the issue when a proper application is before it
and all the
interested parties shall have put forward their versions. It is
further explained in the judgment that Adv. Mpshe irrationally
and
hastily made a decision not having all the information before him and
not waiting for the requested information.
14.
BALANCING OF TWO
IMPERATIVES
14.1.
The Court in its judgment under the heading
"RATIONALITY OF THE DECISION AND ABUSE
OF PROCESS DOCTRINE"
clearly dealt
with the issues raised in the third, fourth and fifth grounds in the
applicants' application. It is not necessary
to regurgitate what is
said in the judgment it been clear on these aspects.
14.2.
It is not correct, as submitted by the ANDPP and
the DSO that the Court in paragraph 88 of the judgment found that
once Adv. Mpshe
had said that the alleged conduct of Mr McCarthy had
not affected the merits of the charges against Mr Zuma,
cadit
quaestio.
The Court in the said paragraph
stated 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.
15.
The
Court clearly understood the argument of the applicants, the ANDPP
and the DSO, when the main application was heard. In paragraph
52 of
the judgment it is stated that the conduct of Mr McCarthy,
if
proven,
constitutes a serious breach of the law and prosecutorial
policy. Importantly, Adv. Mpshe, made a decision without having the
version
of Mr McCarthy, see paragraphs 53 and 54 of the judgment. The
Court further dealt with the contradictions regarding the timing of
the service of the indictment as set out in paragraph 73 of the
judgment.
16.
The
opinion of Mr Hofmeyer is just that and not a fact as the applicants
seek to elevate it as such. The test mentioned in the
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623(A) at
634-635
was properly considered and applied with in the main
judgment. Mr Hofmeyer's statement that Mr McCarthy and Ngcuka had
actively
abused the NPA to discredit Mr Zuma and that the motive was
political cannot be regarded as a fact and binding.
17.
OTHER COMPELLING
REASONS
The
other ground to support the application raised by Mr Zuma is that the
formal withdrawal of the charges on 8 APRIL 2007 before
the Kwa-Zulu
Natal High Court was a vital factor and that the Court in its
judgment should not have stated that Mr Zuma should
face the charges.
In our view, the withdrawal of the charges against Mr Zuma was not an
acquittal. Such withdrawal does not nullify
the decision to prosecute
should Adv. Mpshe's decision be set aside. The said withdrawal cannot
be regarded as a factor to stop
Mr Zuma to face the charges. The
Court had no obligation to make an order that the matter should be
referred back to the NDPP for
reconsideration as submitted by the
applicants.
In NDPP v Freedom Under Law ("FUL")
2014 (4)
SA 298
(SCA), p 316, par [51] Brand, JA
said the following:
" ... .The
setting-aside of the withdrawal of criminal charges and the
disciplinary proceedings has the effect that the charges
and the
proceedings are automatically reinstated, and it is for the executive
authorities to deal with them..."
18.
The
ground raised by the applicants that the Court has breached the
separation of powers is without merit. The Supreme Court of
Appeal
(SCA) in the
FUL
case has clearly and correctly pronounced
that Courts should refrain from handing down orders directing the
prosecution as to the
execution of their functions. Such measures
would encroach on the terrain of the executive branch of the State.
This Court has
cited the SCA's decision in its main judgment and has
throughout been mindful of what has been decided by the SCA. Mr
Zuma's counsel
further contends that the Court should have considered
referring the matter back to the prosecution. That would have
resulted in
the breach of the separation of powers doctrine. There
was thus no need to make any order regarding what the NDPP should do.
19.
In
our view the issues of law concerning the grounds of review and the
separation of powers doctrine have been considered and settled
by the
SCA in their judgments, which are referred to in the main judgment.
There is thus no legal issue arising out of the main
judgment which
requires consideration by the SCA.
20.
The
applicants further criticised the main judgment by submitting that
the Court did not consider the affidavit of Mr McCarthy to
the High
Court that the prosecution process was of the highest integrity
whilst he, Mr McCarthy, had been engaged in an illegal
investigation
in the conduct of Mr Zuma at the time. The submission disregards the
fact that when Adv Mpshe made the decision to
discontinue the
prosecution did not mention it. The submission was made when the main
application was argued and we did consider
it.
21.
The
Court in adjudicating the matter, did take into consideration what
the SCA found in
Pharmaceutical Manufacturer Ass of South Africa &
Another: In Re. Ex Parte President of the Republic of South Africa &
Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC)
at 709 E - H.
The Court
clearly stated in the main judgment that Adv. Mpshe's decision to
terminate the process due to the alleged abuse or manipulation
of the
prosecution process was irrational.
22.
It
was submitted on behalf of Mr Zuma in the heads of argument in par
7.5 that the decision to charge Mr Shaik only, should be regarded
as
irrational. We fail to understand the relevance of this submission
because Mr Shaik's conviction was confirmed by the highest
Court.
Furthermore Mr Shaik's issue was not mentioned by Adv. Mpshe when he
took his decision and same cannot therefor be a reason
for his
decision not to prosecute. There is no merit on this ground.
23.
Mr
Zuma in par 7.6 of his heads of argument submitted as follows:
"On the evidence,
Mr Msphe did not act overcome (sic) emotional nor was he pressured."
Crucially
the third respondent further alleged that emotional people often take
impeccable decisions. Mr Hofmeyr clearly stated
in his affidavit that
Adv. Mpshe was angry at the time when he took the decision to
discontinue the prosecution.
24.
We
are of the view that the applicants have also raised irrelevant and
non meritorious factors to try and support their contention
and
arguments that there are other factors that should be considered.
25.
CONCLUSION
The
Superior Courts Act has
raised the bar for granting leave to appeal
in
The Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18
Others,
Bertelsmann J held as follow:
"It is clear that
the threshold for granting leave to appeal against
a
judgment of
a
High
Court has been raised in the new Act. The former test whether leave
to appeal should be granted was
a
reasonable
prospect that another court might come to
a
different conclusion, see
Van
Heerden v Cronwright
&
Others
1985 (2) SA 342
(T) at 343H.
The use
of the word "would" in the new statute indicates
a
measure of
certainty
that another court will differ from the court whose judgment is
sought to be appealed against."
26.
The
applicants are not challenging the orders granted by the Court but
they extracted and misinterpreted the following under mentioned
sentences in the main judgment to formulate the grounds of appeal.
(i)
"the Court of law is the appropriate
forum to deal with the abuse of process doctrine, not extra-judicial
process"
and
(ii)
"Mr Zuma should face the charges as
outlined in the indictment".
27.
In
reading the judgment holistically it is clear that the Court never
created a principle that the NDPP has no power to discontinue
the
prosecution. Furthermore the court did not interfere with the
separation of powers principle and did not order or direct that
the
NDPP must continue with the prosecution. The attack by the applicants
based on the above sentences is ill founded. The said
sentences
should be read in the context within which they were made in the
judgment and not read in isolation to create a different
context.
28.
The
authorities relied upon by Adv. Mpshe do not support an extra
judicial termination of the prosecution. Adv. Mpshe relied on
English
case law and Hong Kong case law which did not support his decision
not to prosecute. Importantly the said authorities,
the circumstances
of the case, and the advice that the NPA received from their senior
counsel supported that the abuse of process
should be dealt with by
the Court. Adv. Mpshe's decision was carefully considered by this
Court. The alleged conduct of Mr McCarthy
was not brushed off by the
Court hence it is stated in the main judgment that should the
allegations be proved that the conduct
of Mr McCarthy stands to be
censured.
29.
When
the Court deals with an application for leave to appeal, leave may
only be given if we are of the opinion that the appeal would
have
reasonable prospects of success or if there are some other compelling
reasons. In our view there are no novel legal issues
raised in the
matter. The applicants invented novel legal grounds by
misinterpreting sections of the judgment or some selective
sentences
of the judgment. The fact that the public has an interest in the
matter is not a justification to grant leave to appeal.
The matter is
of course important for Mr Zuma. However, if the appeal does not have
reasonable prospects of success leave to appeal
should not be
granted.
30.
There
will in most instances, be different interpretations, however, we
have carefully considered the authorities referred to and
we are of
the view that the Court interpreted and applied the authorities
correctly.
31.
We
seriously considered whether the appeal would have reasonable
prospects of success and we came to the conclusion that there are
no
merits in the arguments raised by the applicants. We have carefully
reconsidered our judgment and conclude that the appeal does
not have
reasonable prospects of success.
32.
We
therefore make the following order:
32.1.
The applications for leave to appeal by the
first, second and third applicants are dismissed.
32.2.
The first, second and third applicants are
jointly and severally ordered to pay the costs of the respondent,
including costs of
two counsel.
__________________________
JUDGE
A P LEDWABA
DEPUTY
JUDGE PRESIDENT OF THE GAUTENG DIVISION OF THE HIGH
COURT,
PRETORIA
__________________________
JUDGE
C PRETORIUS
JUDGE
OF THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
__________________________
JUDGE
S P MOTHLE
JUDGE
OF THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA