Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others

• Jurisdiction: South Africa
• Judge: Mpati P, Navsa JA, Bosielo JA, Tshiqi JA and Plasket AJA
• Judgment Date: 20 March 2012
• Docket Number: 288/11 [2012] ZASCA 15
• Hearing Date: 15 February 2012
• Counsel: SP Rosenberg SC (with HJ de Waal) for the appellants. P Kennedy SC (with NH Maenetje) for the first and second respondents. KJ Kemp SC (with T Khuzwayo and LK Olsen) for the third respondent.
• Court: Supreme Court of Appeal

Navsa JA (Mpati P, Bosielo JA, Tshiqi JA and Plasket AJA concurring): B

Background

[1] This appeal does not concern the merits of a decision taken on C 6 April 2009 by the first respondent, Mr Mokotedi Mpshe, the then Acting National Director of Public Prosecutions, to discontinue a prosecution against the third respondent, Mr Jacob Zuma, who is presently the President of the Republic of South Africa, on corruption charges. [1] Instead, it is about the correctness of decisions in relation to two interlocutory matters and points in limine, raised D in the manner described in successive paragraphs. In National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) (2009 (1) SACR 361; 2009 (4) BCLR 393; [2008] 1 All SA 197) para 2 this court described litigation between the National Director of Public Prosecutions (NDPP) and Mr Zuma as having had a 'long and troubled history'. E Harms DP recorded that the law reports are replete with judgments in that regard. A brief summary of that history as well as a description of Mr Mpshe's initial decision, in 2007, to indict Mr Zuma, and of how Mr Zuma became President of South Africa is set out in paras 3 – 7 of that judgment. I do not intend to repeat it here. I now turn to describe how the present appeal arose. F

[2] In April 2009 the Democratic Alliance (DA), a registered political party and the official opposition in our national parliament, approached the North Gauteng High Court, by way of an application, for an order reviewing, correcting and setting aside the decision to discontinue the G prosecution, and declaring the decision to be inconsistent with the Constitution of the Republic of South Africa. Thereafter, the DA required the first and second respondents to deliver to the registrar of the high court, in terms of rule 53(1) of the Uniform Rules of Court, the record on which the impugned decision was based, which included representations made by Mr Zuma as to why the prosecution should be discontinued. H

[3] The prosecuting authorities refused to deliver the record on the basis that it contained the said representations, which had been made on a confidential and without prejudice basis. They pointed out that I Mr Zuma had declined to waive the conditions under which he had submitted his representations. Furthermore, the office of the NDPP informed the DA that it intended to contest the DA's locus standi in the

Navsa JA (Mpati P, Bosielo JA, Tshiqi JA and Plasket AJA concurring)

A review application and that it would assert that a decision by the national prosecuting authority to discontinue a prosecution was not reviewable. The DA was informed that these issues would be raised in limine.

[4] This led to two interlocutory applications in the high court. In the first, brought in terms of rule 6(11), [2] the DA sought an order directing B the first respondent to dispatch the record of proceedings on which the decision to discontinue the prosecution was based, excluding the representations by Mr Zuma. In addition the DA also sought an order directing that the prosecution authorities specify, by written notice, the documents or material excluded from the record.

C [5] In the second application, the second and third appellants, Mr Richard Young and CCII Systems (Pty) Ltd (CCII), respectively, brought an application for leave to intervene as second and third applicants in the review application. CCII had been an unsuccessful bidder in the arms procurement process. Mr Young is the sole and managing director of CCII. In his affidavit, in the application to intervene, he recorded that the D DA's locus standi had been challenged by the first and third respondents and stated the following:

'(I)n order to obviate any possible difficulties in this regard, CCII Systems and I seek to intervene as second and third applicants. As will become apparent from what follows below, there can be no serious E dispute about our standing.'

[6] Mr Young's complaint was that CCII had lost out on its bid in the arms procurement process 'in highly questionable circumstances'. He claimed that CCII had been 'deselected' in the category of acquisition of naval vessels. CCII is a supplier of specialised software and computer F systems for defence applications and its systems are intended to be a central component of the combat capability of naval vessels. In his affidavit in the application to intervene Mr Young points out that CCII was ousted as a bidder in favour of a company associated with one that the national prosecuting authority had contemplated as a co-accused in the corruption case against Mr Zuma. It appears from Mr Young's G affidavit that he had complained about CCII's deselection to the Special Investigation Unit, headed by the then Judge Heath. He also complained to the office of the Auditor-General and apparently to the Public Protector. According to Mr Young a multi-agency investigation of the arms procurement process was established. That resulted in a report to H parliament, which, inter alia, upheld his complaints concerning the conflict of interest on the part of Mr Chippy Shaik, who was integral to the arms procurement process. A careful reading of Mr Young's affidavit reveals that there is no direct accusation involving corruption on the part of Mr Zuma in relation to the 'deselection' of CCII in the arms I procurement process.

Navsa JA (Mpati P, Bosielo JA, Tshiqi JA and Plasket AJA concurring)

[7] In resisting these two interlocutory applications the first A and third respondents filed answering affidavits in which they contested the DA's and the second and third appellants' locus standi in the review application. Predictably, issues that impinge on the merits of the review application were raised on behalf of the respondents.

[8] The North Gauteng High Court (Ranchod J) rejected the B submission on behalf of the DA that the points in limine should be heard after all the affidavits had been filed in the review application and should be decided at the commencement of that hearing. The high court conflated the points in limine, which ought rightly to have been heard at the commencement of the hearing of the review application, with the issues to be decided in the interlocutory applications. C

[9] Ranchod J accepted the submission, on behalf of the first respondent, that a political party such as the DA did not have a direct and substantial interest in the decision to discontinue the prosecution. Ranchod J reasoned as follows:

'It would be wrong on legal principle to contend that all members of the D public in South Africa have a direct and personal interest sufficient to clothe them with standing to seek the review and setting aside of the NDPP's decision. I do not think every member of the public can demonstrate, on the facts of this case, that the decision to discontinue the prosecution of President Zuma has a direct effect on any of their E rights — even in the extended sense in which the Constitutional Court construed direct and personal interest in [Kruger v President of the Republic of South Africa and Others 2009 (1) SA 417 (CC) paras 22 and 23].'

[10] Much time and effort was wasted in the high court and before us, on F debate about whether a decision to discontinue a prosecution constituted administrative action in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The DA contended that such a decision constituted administrative action in terms of PAJA. The relevant part of the definition of administrative action in s 1 reads as follows:

'"administrative action" means any decision taken, or any failure to G take a decision, by —

(a)

an organ of state, when —

(i)

exercising a power in terms of the Constitution or a provincial constitution; or

(ii)

exercising a public power or performing a public function in H terms of any legislation; or

(b)

. . .

which adversely affects the rights of any person and which has a direct, external legal effect but does not include —

. . .

(ff)

a decision to institute or continue a prosecution.' I [Emphasis added.]

[11] Considering whether the DA had standing under PAJA, Ranchod J said the following:

'PAJA has not altered the common-law requirements for standing to review administrative action (except to the extent that PAJA has J

Navsa JA (Mpati P, Bosielo JA, Tshiqi JA and Plasket AJA concurring)

A imposed the additional requirement that a review applicant must show that its rights have been materially and adversely affected by the impugned administrative action).'

The learned judge concluded that the DA had not met this requirement.

[12] The DA, in asserting its right to bring the review application, also B relied on s 38 of the Constitution which provides

'Enforcement of rights

Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a C declaration of rights. The persons who may approach a court are —

(a)

anyone acting in their own interest;

(b)

anyone acting on behalf of another person who cannot act in their own name;

(c)

anyone acting as a member of, or in the interest of, a group or class of persons;

(d)

D anyone acting in the public interest; and

(e)

an association acting in the interest of its members.'

[13] Turning to the standing of the DA under these provisions of the Constitution, Ranchod J stated the following:

'It is clear from the provisions of s 38 that it applies only in the case of E an enforcement of fundamental rights in the Bill of Rights.'

The high court rejected the DA's reliance on the equality provision in s 9 of the Constitution [3] to the effect that if a powerful and influential figure such as Mr Zuma is shown to have...