Freedom under Law v National Director of Public Prosecutions and Others

• Jurisdiction: South Africa
• Citation: 2014 (1) SA 254 (GNP)

Freedom under Law v National Director of Public Prosecutions and Others
2014 (1) SA 254 (GNP)

2014 (1) SA p254

Citation	2014 (1) SA 254 (GNP)
Case No	26912/12
Court	North Gauteng High Court, Pretoria
Judge	Murphy J
Heard	September 11, 2013; September 12, 2013
Judgment	September 23, 2013
Counsel	V Maleka SC (with S Yacoob and I Goodman) for the applicant.; L Hodes SC (with N Manaka and E Fasser) for the first and third respondents.; WR Mokhari SC (with M Zulu and DM Matlou) for the second and sixth respondents.

Flynote : Sleutelwoorde B

Administrative law — Administrative action — What constitutes — Prosecutorial decision not to prosecute or to discontinue prosecution — Such decision constituting administrative action as defined in Promotion of Administrative C Justice Act 3 of 2000, s 1.

Administrative law — Abdication of discretionary power — Where Acting Commissioner of Police, as authorised body, withdrawing disciplinary proceedings against high-level official on instruction — Such abdication violating principle that responsibility for discretionary power rests with authorised D body and no one else, and decision accordingly unlawful and invalid.

Administrative law — Administrative action — Review — Duty to exhaust internal remedies before instituting legal proceedings — Whether decisions to discontinue prosecution only reviewable in court once applicant exhausted internal remedy of review before National Director of Public Prosecutions — No such obligation imposed on aggrieved party by Constitution, E s 179(5)(d).

Constitutional law — Separation of powers — Power of courts to review prosecutorial decisions — Court entitled to interfere with prosecutorial decisions breaching constitutional principle of legality — Decisions not to prosecute or to discontinue prosecution also reviewable under PAJA — Courts duty-bound F under doctrine of separation of powers to review such decisions — Promotion of Administrative Justice Act 3 of 2000, s 1.

Constitutional law — Prosecuting authority — National Director of Public Prosecutions — Power to review prosecutorial decisions — In circumstances of present case, failure to exercise such power not complying with constitutional obligation of public functionaries to be responsive, accountable and G transparent — Constitution, ss 179(5)(d) and 195.

Police — National commissioner — Powers and duties — Withdrawal of disciplinary proceedings against members — Where acting commissioner doing so while serious allegations against member remaining unresolved — Such H decision amounting to dereliction of commissioner's constitutional and statutory duties to control and manage South African Police Service in open, transparent, accountable, impartial and efficient manner, and accordingly fell to be set aside as illegal — South African Police Service Act 68 of 1995, s 11.

Review — Grounds — Rationality — Process preceding decision — Failure to consult I all interested parties — Standard of rationality requiring that representations from all stakeholders, both those in favour and against decision, be considered.

Headnote : Kopnota

Freedom Under Law (FUL), a public interest organisation, applied for the review and setting-aside of the decisions of the first three respondents relating to J the withdrawal of criminal and disciplinary charges against the fifth

2014 (1) SA p255

respondent (Mdluli) and his reinstatement as Head of Crime Intelligence A within the South African Police Service (SAPS). FUL also sought an order directing that the charges be immediately reinstated and prosecuted to finalisation.

The main issues were the lawfulness of these decisions and the power of the judiciary to review prosecutorial decisions.

The reviewability of prosecutorial decisions B

The first respondent (the NDPP) submitted that the court's power to review prosecutorial decisions was restricted to extremely limited grounds by virtue of the doctrine of separation of powers; and also that a decision to withdraw charges pending the receipt of further evidence, and to prosecute or not to prosecute, was not necessarily final and therefore that resort to the C court should be denied until the internal remedies in s 179(5)(d) of the Constitution, [*] were exhausted.

Held: While the constitutional requirement that the prosecuting authority be independent justified judicial restraint, the constitutional principle of legality required a decision-maker to exercise the powers conferred on him lawfully, rationally and in good faith — and courts were entitled to interfere D where that principle was breached. Furthermore, a decision not to prosecute or to discontinue a prosecution was administrative action as defined in s 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), and accordingly such a decision may be reviewed on the grounds enunciated in s 6 of PAJA and one of the remedies in s 8 of PAJA be appointed. Parliament, by enacting PAJA, had separated the power to review a decision not to E prosecute (or to discontinue prosecution) to the judiciary, who was therefore duty-bound under the doctrine of separation of powers to review such decisions. (Paragraphs [122], [124], [128] – [134], [137] and [139] at 288H, 289C, 291B – 293D, 293H – J and 294E – F.)

Provisional or not, an illegal decision would normally be set aside; and there was F nothing in s 179(5)(d) of the Constitution, or expressly stated or necessarily implied in the legislative scheme as a whole, overtly requiring a person aggrieved by a decision to discontinue a prosecution to first take the matter on review to the NDPP. (Paragraphs [193] – [194] and [198] at 308H – 309A and 310A – B.)

The lawfulness of the decisions G

The impugned decisions in relation to Mdluli were those of the Head of the Specialised Commercial Crimes Unit (the SCCU) within the National Prosecuting Authority (the NPA), to withdraw fraud and related charges; the Director of Public Prosecutions for South Gauteng (the DPP SG), to withdraw murder and related charges and to refer the issue of the victim's death to an inquest; and the Acting Commissioner of Police (the Acting H Commissioner), to withdraw disciplinary charges and to reinstate him in his position.

Held: The requirement in s 24(3) of the National Prosecuting Authority Act 32 of 1998 (the NPA Act), that a Special Director of Public Prosecutions (like the Head of the SCCU) exercise the power to discontinue [†] proceedings 'in I

2014 (1) SA p256

A consultation with' a Director of Public Prosecutions (DPP), meant that the Head of the SCCU could only withdraw charges with the concurrence or agreement of the DPP North Gauteng (DPP NG). The evidence showed that the Head of the SCCU had not consulted with the DPP NG before taking the decision to withdraw the charges, let alone obtain his concurrence. His decision was therefore unlawful for want of jurisdiction and must be set B aside for that reason alone, in accordance with the principle of legality. As administrative action as defined, his decision was also reviewable in terms of s 6(2)(b) and s 6(2)(i) of PAJA. (Paragraphs [152], [154] and [160] at 297F, 298B – D and 300A – B.)

The only reasons advanced by the Head of the SCCU at the time that he decided C to withdraw the charges were that he was concerned that they may have been pursued with an ulterior motive, and that the offences with which Mdluli had been charged fell within the mandate of the Inspector General of Intelligence (IGI), and could therefore only be investigated by her offices. An improper motive would not render an otherwise lawful prosecution unlawful and would not excuse a prosecutor from engaging with the merits D of the case; and the IGI's mandate did not extend to criminal investigations. The Head of SCCU's decision was thus evidently based on errors of law and fact and was therefore liable to review in terms of ss 6(2)(b) and 6(2)(e)(iii) of PAJA. Insofar as the decision was attended by factual errors, and in view of his stance overall, the decision was not rationally connected to the information before him and the purpose of the NPA Act, and is thus E reviewable also under s 6(2)(f)(ii)(bb) and (cc) of PAJA. (Paragraphs [171] – [172] and [174] at 302G – 303B and 303E – F.)

Failure to consult with affected and interested parties may often, if not invariably, result in vital relevant information being ignored and the decision coloured by irrationality, because there were no rational connection between the information available to the official, the purpose of the empowering F provision, the decision and the reasons for it. The Head of the SCCU considered representations from Mdluli's lawyers and from unnamed operatives, but he did not call for or consider representations from the investigators in the case, the Hawks, the IGI or the Acting Commissioner of Police. Once he had decided to consider representations from any relevant person, the standard of rationality required him to deal with all stakeholders G even-handedly and to consider representations both from those in favour of withdrawal and those against. The process by which he reached his decision was arbitrary, and the consequent decision irrational and therefore illegal. (Paragraphs [161] and [166] – [167] at 300C – E and 301F – 302B/C.)

The DPP SG was similarly constrained by the rule of law and the requirement of rationality to consider representations from the complainants and victims of H the alleged crimes before withdrawing the charges. The process leading to the decision being taken was irrational because it lacked input from crucial stakeholders in the process. Moreover, the NPA's policy directives obliged him to seek the advice of the NDPP before withdrawing the murder and related charges but their respective affidavits, however...