Freedom under Law (RF) NPC v National Director of Public Prosecutions and Others

• Jurisdiction: South Africa
• Citation: 2018 (1) SACR 436 (GP)

Freedom under Law (RF) NPC v National Director of Public Prosecutions and Others
2018 (1) SACR 436 (GP)

2018 (1) SACR p436

Citation	2018 (1) SACR 436 (GP)
Case No	89849/2015
Court	Gauteng Division, Pretoria
Judge	Mothle J, Tlhapi J and Wright J
Heard	October 30, 2017; October 31, 2017
Judgment	December 21, 2017
Counsel	M du Plessis (with A McKenzie) for the applicant.; H Epstein SC (with M Osborne and T Mabuda) for the first, second, fourth and fifth respondents.; N Arendse SC (with S Fergus) for the third respondent.; R Ramawele SC (with K Magano) for the sixth respondent.; T Masuku (with MK Mathipa) for the amicus curiae, Education for Social Justice Foundation.

Flynote : Sleutelwoorde

Prosecution — National Director of Public Prosecutions — Conduct of — Inquiry into and suspension of Acting NDPP and Special Director of C Public Prosecutions — Adverse comments by courts having led to their being struck from roll of advocates — Essential for State President to act swiftly and decisively in terms of s 12(6)(a) of the National Prosecuting Authority Act 32 of 1998 to hold inquiry and suspend officials.

Prosecution — National Director of Public Prosecutions — Withdrawal of charge by — Review of such decision — Decision to withdraw charge D based on material error of law — Decision to withdraw had to be set aside.

Headnote : Kopnota

The applicant took on review a decision by the National Director of Public Prosecutions (the NDPP) (Mr Abrahams), alternatively by the second E respondent, the regional head of the Specialised Commercial Crimes Unit, not to prosecute the third respondent, a Deputy NDPP (Ms Jiba), on charges of perjury and fraud. The applicant also sought an order reviewing and setting aside the decision by the fifth respondent (the State President) not to suspend Ms Jiba, and the sixth respondent, a Special Director of Public Prosecutions, and an order compelling the State President to suspend them F and institute an enquiry into their conduct.

The applicant alleged that Ms Jiba and the sixth respondent took decisions in several high-profile cases that attracted negative and scathing judicial comment. These comments, the applicant alleged, raised serious questions of impropriety and their fitness to hold office as officials in the National Prosecuting Authority (the NPA). It contended that, despite the State G President being aware of these comments, he failed to suspend the two officials and institute enquiries into their fitness to hold office, as provided for by s 12(6)(a) of the National Prosecuting Authority Act 32 of 1998 (the NPA Act). In one of those cases, the court found that Ms Jiba's conduct in exercising her powers to issue authorisations in terms of the Prevention of Organised Crime Act 121 of 1998 (POCA) against a major general in the South African Police Service, and the manner in which she conducted H her defence of the review application, was unsatisfactory and not befitting of her office.

A new NDPP was appointed in October 2013 who attempted to persuade the State President to institute an enquiry into Ms Jiba's conduct, but the State President declined to do so. The NDPP then himself preferred charges of perjury against her. That prosecution was entrusted to one Mr Hofmeyr. I Later, when Mr Abrahams was appointed NDPP, he relieved Hofmeyr of the oversight of the case and requested the second respondent to review it and provide him with an opinion on it. The prosecuting team recommended a prosecution, but the second respondent recommended the withdrawal of the charges on the basis that what Ms Jiba had done was protected under the provisions of s 78 of POCA. Mr Abrahams then withdrew the charges J against Ms Jiba.

2018 (1) SACR p437

In the present proceedings, all members of the court agreed that s 78 of POCA did A not find application in the case. When Ms Jiba made the statements in her affidavit in opposing the review application brought by the major general, she was acting as the NDPP and her statements in the affidavit had nothing to do with the application of POCA. The majority of the court also held that the reasons advanced for the withdrawal were based on a material error of law which fell short of the legality expected in a rational decision. (See [59].) B

It held, furthermore, that the defence, that the applicant had not exhausted its internal remedies by seeking a review of a decision to prosecute, had no merit. The NPA derived its power from s 179 of the Constitution and the NPA Act, and its mandate was to institute criminal proceedings on behalf of the state. Once the decision had been made to prosecute, the NPA could C review that decision in the manner prescribed by s 179(5)(d) of the Constitution. The exercise of that power had to not be manifestly at odds with the purpose for which the power was conferred. The court concluded that the means selected to withdraw the charges against Ms Jiba were not rationally related to the NPA's objectives, and the decision was irrational and had to be set aside. (See [60] – [61].)

The consequence of the setting-aside of that decision was that the charges and D proceedings were automatically reinstated, and it was for the executive authorities to deal with them. (See [62].)

In respect of the State President's failure to suspend and institute enquiries against Ms Jiba and the sixth respondent, the respondents contended that the decision of the Gauteng Division, Pretoria, to strike them from the roll of advocates, was on appeal to the Supreme Court of Appeal and, until that E matter was finalised, it was appropriate for the State President not to take any action in terms of s 12(6)(a) of the NPA Act.

The majority of the court held that this was not an excuse for the State President not to act for at least a period of more than a year, even after he had been requested to institute such an enquiry by the NDPP. The adverse findings and comments made by the courts against them had a direct effect on and F eroded the public confidence in the NPA as a law-enforcement agency. It was therefore essential for the President to act decisively and swiftly when the situation called for such action. The continued presence of such high-profile public officers in their positions in the circumstances, even for one day longer, ought not be countenanced. The President's failure to act in the circumstances constituted a dereliction of his constitutional and statutory duties in terms of s 179 of the Constitution read with s 12(6)(a) of the NPA G Act, and his failure to act had to be reviewed and set aside. (See [94] – [95].)

It held, furthermore, that there was no doubt that the appeal process might have an impact on the remedy sought, and to order the President to suspend and hold enquiries might result in an exercise running parallel with the appeal process. That could be a waste of resources if the appeal process failed. Therefore, the order had to be stayed. (See [99] – [100].) H

Held, per Wright J, that, although the decision by the State President not to institute enquiries against Ms Jiba and the sixth respondent was reviewable on the basis of irrationality, this did not mean that the officials should be suspended. The question of a possible suspension arose only if an enquiry was instituted by the President: it would be inappropriate for the court to consider this question because it was for the President to decide whether I such enquiries should be held and, if so, whether suspensions should take place pending the enquiries. In the instant case more than two years had passed since the impugned decisions were taken and water may have flowed under the bridge since the last affidavits were filed. There might be facts or circumstances relevant to the rationality or otherwise of such a decision, unknown to the court at the date of hearing. (See [75].) J

2018 (1) SACR p438

Cases cited

Southern Africa A

Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) (2005 (6) BCLR 529; [2005] ZACC 3): applied

Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (2) SACR 101 (CC) (2010 (3) SA 293; 2010 (5) BCLR 391; B [2010] ZACC 4): considered

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): referred to

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): applied

Booysen C v Acting National Director of Public Prosecutions and Others 2014 (2) SACR 556 (KZD) (2014 (9) BCLR 1064; [2014] 2 All SA 391): referred to

Corruption Watch (RF) NPC and Another v President of the Republic of South Africa and Others 2018 (1) SACR 317 (GP) ([2018] 1 All SA 471): referred to

De Lange v Methodist Church and Another 2016 (2) SA 1 (CC): referred to

Democratic D Alliance and Others v Acting National Director of Public Prosecutions and Others 2012 (3) SA 486 (SCA) ([2012] 2 All SA 345; 2012 (6) BCLR 613; [2012] ZASCA 15): referred to

Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248 (CC) (2012 (12) BCLR 1297; [2012] ZACC 24): referred to

Democratic E Alliance v President of the Republic of South Africa and Others 2016 (2) SACR 494 (WCC) (2016 (8) BCLR 1099; [2016] 3 All SA 537): not followed

Freedom Under Law v National Director of Public Prosecutions and Others 2014 (1) SACR 111 (GNP) (2014 (1) SA 254; [2013] 4 All SA 657): referred to

General F Council of the Bar of South Africa v Jiba and Others 2017 (1) SACR 47 (GP) (2017 (2) SA 122; [2016] 4 All SA 443; [2016] ZAGPPHC 833): referred to

Helen Suzman Foundation and Another v Minister of Police and Others 2017 (1) SACR 683 (GP): referred to

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