National Director of Public Prosecutions v Zuma

• Jurisdiction: South Africa

National Director of Public Prosecutions v Zuma
2009 (1) SACR 361 (SCA)

2009 (1) SACR p361

Citation	2009 (1) SACR 361 (SCA)
Case No	573/08
Court	Supreme Court of Appeal
Judge	Harms DP, Farlam JA, Ponnan JA, Maya JA and Cachalia JA
Heard	November 28, 2008
Judgment	January 12, 2009
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.

Flynote : Sleutelwoorde

Prosecuting authority — National Director of Public Prosecutions — Decision H to prosecute — Review — Failure to comply with constitutional obligation to consult with accused — Obligation not applying to review of NDPP's own decision to prosecute — Earlier decision having lapsed when matter struck off roll — Impugned decision thus not constituting review of earlier decision — application dismissed — Constitution, s 179(5)(d). I

Headnote : Kopnota

The respondent, the former Deputy President of South Africa and leader of the ruling political party, requested the High Court to annul the appellant's decision to indict him (the Mpshe decision). The respondent advanced two grounds for his application: (1) The decision to indict him amounted to a review of the appellant's earlier decision not to prosecute him (the Ngcuka J

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A decision), a review that took place without his having been invited to make representations as intended in s 179(5)(d) of the Constitution (and in s 22(2)(c) of the National Prosecuting Authority Act 32 of 1998). (2) Alternatively, and flowing from his constitutional right to administrative justice, he had had a legitimate expectation, arising from Mr Ngcuka's press release when he announced his decision not to prosecute him and from a B letter written by the respondent's attorney shortly before the Mpshe decision was made and Mr Mpshe's response thereto, to have been invited to make representations before any decision was taken to change the Ngcuka decision. The Mpshe decision was the second decision by the appellant following the Ngcuka decision to indict the respondent. The first C such decision, the Pikoli decision, had lapsed when the matter was struck from the High Court roll because the State had not been ready to proceed to trial. The appellant brought an interlocutory application for the striking-out from the respondent's affidavits, on the ground of irrelevance, of a large number of allegations relating to the merits of the appellant's decisions. The allegations sought to be struck out mainly related to an alleged political conspiracy to prosecute the respondent. The respondent in turn brought an D application for allegations to be struck from the appellant's affidavit in support of his application to strike out.

In the main application the High Court found in favour of the respondent and set aside the Mpshe decision and the indictment that followed. The court declined to make any finding regarding the relevance of the facts sought to be struck from the respondent's affidavits, but granted the respondent's E application to strike out. The appellant appealed to the Supreme Court of Appeal. Mr Mbeki, the former President of South Africa, and the Government of South Africa sought leave to intervene in the appeal, alleging an interest in the appeal by virtue of the fact that the High Court had made certain findings that reflected negatively on them and they wished to set the record straight.

F Held, that the High Court had failed to adhere to the principle that judges were themselves constrained by the law when exercising their judicial function. It had failed to confine its judgment to the issues before the court; decided matters that were not germane or relevant; created new factual issues; made gratuitous findings against persons who were not called upon to defend themselves; failed to distinguish between allegation, fact, and suspicion; G transgressed the boundaries between judicial, executive and legislative functions; and overstepped the limits of its authority by injecting personal views and political preferences into its judgment. (Paragraphs [15] and [16] at 371h-372d.)

Held, further, that the court had furthermore erred in its approach to the determination of applications. In the context of the appellant's striking-out H application the court's approach had been to examine the correctness or otherwise of the allegations sought to be struck out, while the real test for irrelevance was whether the allegations applied to the matter in hand or contributed to the decision of the matter. Relevance did not depend on the factual merit of the impugned allegations, but their applicability to the merits of the case, which was never considered. (Paragraphs [23]-[25] I at 373f-374c.)

Held, further, that unless motion proceedings were concerned with interim relief, they were all about the resolution of legal issues based on common-cause facts. Unless the circumstances were special they could not be used to resolve factual issues because they were not designed to determine probabilities. It was well-established under the Plascon-Evans rule that where J disputes of fact in motion proceedings arose on the affidavits, a final order

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could be granted only if the facts averred in the applicant's affidavits and A admitted by the respondent, together with the facts alleged by the latter, justify such order. It might be different if the respondent's version consisted of bald or implausible denials, raised fictitious disputes of fact, or was palpably implausible, far-fetched or so clearly untenable that the court was justified in rejecting it merely on the papers. The court below did not have regard to those propositions, and instead decided the case on probabilities B without rejecting the appellant's version (Paragraph [26] at 374d-f.)

Held, further, that the court below erred further in applying a rule of evidence which applied only to trials, namely that if the facts were peculiarly within the knowledge of a defendant, the plaintiff needed less evidence to establish a prima facie case, and in failing to have regard to the principle that, C the more serious the allegation or its consequences, the stronger had to be the evidence before a court would find the allegation established. (Paragraph [27] at 374f-375c.)

Held, further, that the court below began its discussion of the legal issues by implying that a decision to prosecute was an administrative action to which the audi principle (with its offspring, the doctrine of legitimate expectation) D applied. That has never been the law and was not the law under the Constitution and the Promotion of Administrative Justice Act 3 of 2000. Such a decision was not susceptible to review. That did not mean, however, that a failure to comply with a constitutional or statutory requirement to hear a party was not justiciable under the principle of legality. (Paragraphs [35]-[36] at 377g-378b.) E

Held, further, as to the Ngcuka decision, that the court found - despite the fact that the respondent made no such allegation - that the Minister and indeed the entire cabinet were party to political interference in the Ngcuka decision, and that such interference amounted to 'serious criminal conduct'. That conclusion was not based on any evidence or allegation but was F part of the judge's own conspiracy theory. Furthermore, the court's finding that a non-party might have committed a criminal act where that was not alleged, where it was not in issue and without hearing that party, was incomprehensible. (Paragraph [44] at 381e-382c.)

Held, further, as regards the Pikoli decision, that notwithstanding that the decision had lapsed, the court made findings about it that could not be G justified on the record. It overstepped the mark when it latched on to a paragraph in an annexure to the appellant's answering affidavit on which the respondent had not relied. The trial judge again failed to comply with basic rules of procedure. Judgment by ambush was not permitted. It was not proper for a court in motion proceedings to base its judgment on passages in documents which had been annexed to the papers when the H conclusions sought to be drawn from such passages had not been canvassed in the affidavits. The reason was manifest - the other party might well be prejudiced because evidence might have been available to it to refute the new case on the facts. (Paragraphs [46]-[47] at 382e-383c.)

Held, further, that the same criticism applied in relation to the court's findings I about the unrelated investigation concerning the Commissioner of Police. Again, without having all the facts, the court commented on matters that were not in issue or canvassed. (Paragraph [48] at 383c-e.)

Held, further, as regards the Mpshe decision and the argument premised on s 179(5)(d) of the Constitution, that s 179(5)(d) of the Constitution did not apply to a reconsideration by the appellant of his own earlier decisions, J

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A but was limited to a review of a decision made by a Director of Public Prosecutions (DPP) or some other prosecutor for whom a DPP was responsible. (Paragraph [70] at 389d.)

Held, further, that the Mpshe decision was not simply a review of the Ngcuka decision, which was no longer extant. On those facts, irrespective of how it was interpreted, s 179(5)(d) had no application and the respondent's B reliance on it was misplaced. (Paragraph [75] at 390e-f.)

Held, further, as to the argument of legitimate expectation, that decisions to prosecute were not reviewable on the ground of legitimate expectation by virtue of PAJA. In any event, the problem with the argument was that there was nothing on the papers...