National Director of Public Prosecutions v Zuma

• Jurisdiction: South Africa
• Judge: Harms DP, Farlam JA, Ponnan JA, Maya JA and Cachalia JA
• Judgment Date: 12 January 2009
• Citation: 2009 (1) SACR 361 (SCA)
• Docket Number: 573/08
• Hearing Date: 28 November 2008
• Counsel: W Trengove SC and B Downer SC (with G Baloyi, A Breitenbach and A Steynberg) for the applicant. KJ Kemp SC (with MDC Smithers and AA Gabriel) for the respondent. MTK Moerane SC and P Coppin SC (with L Gcabashe) for the intervening parties.
• Court: Supreme Court of Appeal

Harms DP:

Introduction

[1] This is an appeal against a judgment of Nicholson J, in which he set aside a decision by the National Director of Public Prosecutions (the J

Harms DP

A NDPP) to indict the respondent, Mr Jacob G Zuma. [1] The appeal by the NDPP is with the leave of the court below. Mr Thabo M Mbeki (until recently the President of the country) and the Government of the RSA sought leave to intervene in the appeal on the ground that they have an interest in the appeal since many findings of the court below impinged on B them negatively and they wish to have the record set straight.

[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. [2] It is accordingly unnecessary to say much by way of C introduction and a brief summary will suffice.

[3] Mr Zuma was appointed as Deputy President of the RSA on 19 June 1999. He was, however, dismissed by Mr Mbeki during June 2005. During December 2007 he became the president of the governing political party, the African National Congress (the ANC), at the expense D of Mr Mbeki, the incumbent and only other candidate for that position. It is common knowledge that, subsequent to the judgment of the court below, Mr Mbeki resigned as President of the country and that Mr Zuma is said to be the ANC's candidate for that post after the 2009 general election. Mr Zuma regards the indictment as an impediment to his political future and the present case is an attempt by him to seek, on E procedural grounds, closure of the criminal proceedings.

[4] On 23 August 2003 Mr Bulelani Ngcuka, the then NDPP, announced his intention to indict a certain Mr Schabir Shaik on two counts of corruption, but stated that he would not indict Mr Zuma, who F was said to have been the recipient of alleged corrupt payments from Mr Shaik. I shall revert to the detail of the announcement, to which I shall refer as the Ngcuka decision. Mr Shaik was convicted and sentenced during June 2005, [3] and Mr Zuma, who was implicated in the judgment, was dismissed by Mr Mbeki from the position of Deputy President as a consequence, not (as Mr Mbeki said) because he was G guilty but (as Mr Mbeki implied) on the theory that Caesar's wife should be above reproach. [4]

Harms DP

[5] A few days later, on 20 June, the newly appointed NDPP, Mr Vusi A Pikoli, announced his decision to indict Mr Zuma. (This decision will be referred to as the Pikoli decision.) The matter came before Msimang J on 31 July 2006 for trial on two corruption counts which mirrored the two Shaik corruption counts. The prosecution applied for a postponement to complete its investigations and finalise the indictment. Msimang J B refused the postponement and called on the prosecution to proceed with the trial. When the prosecution indicated that it was not ready to do so, he struck the matter from the roll.

[6] Mr Pikoli had in the interim been suspended by Mr Mbeki on an unrelated matter, and Mr Mokotedi Joseph Mpshe, the acting NDPP, C decided on 27 December 2007 once again to indict Mr Zuma (herein called the Mpshe decision). That decision was followed by an indictment of 87 pages with 18 main counts of racketeering, corruption, money laundering, tax evasion and fraud. Much was based on the same subject- matter that was dealt with in the Shaik trial but, according to the NDPP, the facts and circumstances differed materially because the evidence D against Mr Zuma had become more compelling and the legal impediments to charging him had been reduced.

[7] In the application, which is the subject of this appeal, Mr Zuma sought an order declaring that both the Pikoli and the Mpshe decisions were invalid and, consequently, they were to be set aside. Nicholson J E obliged by setting aside the latter decision (the former having lapsed). This brought the prosecution to an end - at least for the time being.

The scope of the case

[8] It would be naïve to pretend that we are oblivious to the fact that F Nicholson J's judgment has had far-reaching political consequences and that there may be an attempt to employ this judgment to score political points. It is accordingly necessary to state at the outset what the case is about as opposed to what it is not about. An applicant is required to set out his case in the founding affidavit. This Mr Zuma did. He asserted G that his case for the setting-aside of the two decisions to prosecute him was premised on two bases, something he confirmed in his replying affidavit.

[9] He relied in the main on s 179(5)(d) of the Constitution, [5] which s 22(2)(c) of the National Prosecuting Authority Act 32 of 1998 (the H

Harms DP

A NPA Act) repeats. It provides, in summary, that the NDPP may 'review' a decision to prosecute or not to prosecute, after consulting the 'relevant' Director of Public Prosecutions (the DPP) and after taking representations from the accused, the complainant and any other relevant person. His case in this regard was simple: the Pikoli and Mpshe decisions to B prosecute amounted in each instance to a review of the Ngcuka decision not to prosecute him; they were made without his having been invited to make representations in fulfilment of a constitutional requirement and they were, consequently, invalid. It matters not that he was able, if he so desired, to make representations - his complaint was that he had to be C invited to make them.

[10] The second and alternative ground on which he relied was that he had a legitimate expectation to be invited to make representations before any decision was taken to change the Ngcuka decision. In this regard he D relied principally on s 33 of the Constitution, which deals with just

Harms DP

administrative action. The expectation, according to the founding A affidavit, arose from the content of Mr Ngcuka's press release when he announced his decision not to prosecute him and from some other non-contentious facts that will be detailed in due course.

[11] From this it is apparent that Mr Zuma's case depended, as far as the first ground is concerned, on an interpretation of the Constitution. [6] In B regard to the second, it depended in essence on whether s 33 of the Constitution applied and, if so, on the meaning of the Ngcuka press statement. (The ultimate argument was somewhat different but does not affect the general purport of the point now under discussion.) These are all legal issues based on common-cause facts. C

[12] Mr Zuma made it abundantly clear that he did not wish to impugn the decisions themselves, and that his application was not concerned with the reasons and motives for the decisions: it related only to the procedural requirements for making them. He implied that he might attack the merits of the decisions in separate proceedings. In spite of this D explicit statement of intent, Mr Zuma introduced a large number of facts that related to the merits of the decisions. The NDPP contended that they were irrelevant.

[13] It follows from this that, as the trial judge recognised, 'political meddling' was not an issue that had to be determined (para 229 of his E judgment). Nevertheless, a substantial part of his judgment dealt with this question; and in the course of this discussion he changed the rules of the game, took his eyes off the ball and red-carded not only players but also spectators. Lest his judgment be considered authoritative, it will be necessary to deal with these matters.

[14] However, it must be understood that this aspect of the judgment is F not about the guilt or otherwise of Mr Zuma or whether the decision to prosecute him was justified. It is even less about who should be the president of the ANC; whether the decision of the ANC to ask Mr Mbeki to resign was warranted; or who should be the ANC's candidate for G President in 2009. More particularly, this aspect of the judgment is not about whether there was political meddling in the decision-making process. It is about whether the findings relating to political meddling were appropriate or could be justified on the papers.

The judicial function H

[15] It is crucial to provide an exposition of the functions of a judicial officer because, for reasons that are impossible to fathom, the court below failed to adhere to some basic tenets, in particular that, in exercising the judicial function, judges are themselves constrained by the law. The underlying theme of the court's judgment was that the judiciary I is independent; that judges are no respecters of persons; and that they stand between the subject and any attempted encroachments on liberties

Harms DP

A by the executive (paras 161 - 162). [7] This commendable approach was unfortunately subverted by a failure to confine the judgment to the issues before the court; by deciding matters that were not germane or relevant; by creating new factual issues; by making gratuitous findings against persons who were not called upon to defend themselves; by B failing to distinguish between allegation, fact and suspicion; and by transgressing the proper boundaries between judicial, executive and legislative functions.

[16] Judges as members of civil society are entitled to hold views about issues of the day and they may express their views provided they do not C compromise their judicial office. But they are not entitled to inject their personal views into judgments or express their political preferences. To illustrate the point, I intend to refer to some instances where the court below, in my view, overstepped the limits of its authority.

[17] The 'Society for the Protection of our Constitution' sought to be D admitted as amicus curiae, asking for an order which the court below charitably interpreted as one for the appointment of a...