Democratic Alliance v Acting National Director of Public Prosecutions and Others

• Jurisdiction: South Africa
• Judge: Ledwaba DJP, Pretorius J and Mothle J
• Judgment Date: 29 April 2016
• Citation: 2016 (2) SACR 1 (GP)
• Docket Number: 19577/2009
• Counsel: S Rosenberg SC (with J de Waal, D Borgstrom and S Vakele) for the applicant. H Epstein SC (with H Maenetje SC and A Platt) for the first and second respondents. KJ Kemp SC (with AA Gabriel SC, HS Gani and T Khuzwayo) for the third respondent. Z Omar (attorney) for the amicus curiae.
• Court: Gauteng Division, Pretoria

The court: A

Introduction

[1] This is a review application launched on 7 April 2009 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: B

'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 . . . the decision of the first respondent referred to in C para 2 above to be inconsistent with the Constitution of the Republic of South Africa, 1996, and invalid; . . . .'

And appropriate costs orders.

[2] The respondents opposing this application are as follows:

[2.1]

The first respondent is the Acting National Director of Public Prosecutions D (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. E

[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 F 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 G Director of Public Prosecution, Adv Pikoli, were struck from the roll by the KwaZulu-Natal Local Division of the High Court during September 2007.

[5] The decision to charge Mr Zuma in November 2007 was coincidentally H taken at a period when the African National Congress (ANC) was about to hold its National Electoral Conference scheduled for 16 – 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 I 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 effected early in 2008 after the Polokwane conference was held, so as not to present an appearance of political interference by the NPA, in influencing the J

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A 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 B 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.

C [9] It took almost seven 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 D 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; and raised the reviewability of the decision of Mr Mpshe and the question whether the ANDPP was compelled to furnish the record of his E decision to the DA. The decision of Ranchod 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 Democratic Alliance and Others v Acting National Director of Public Prosecution and Others. [1]

[9.2]

F 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 F 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 H

[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 after I Mr Pikoli had been suspended. The prosecution team investigating the

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case of Mr Zuma consisted of Adv Downer SC (Mr Downer), A 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 B deputies in the NPA updated about the investigation of the matter of Mr Zuma. In preparation to finalise the charges, the application for centralisation of charges in terms of s 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 C 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 s 33 of the National Prosecuting Authority Act 32 of 1998 (the NPA Act) was D 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, E 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 s 179 of F the Constitution of the Republic of South Africa, 1996 (the Constitution), in the KwaZulu-Natal Local 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. G

[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 H 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 I 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 J

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A 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 B 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 – 16 March 2009 Mr Zuma's legal representatives allowed C 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 D 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 E 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 F representations. It is not clear if the response was delivered to...