Zuma v Democratic Alliance and Others

• Jurisdiction: South Africa
• Judge: Navsa ADP, Cachalia JA, Bosielo JA, Leach JA and Tshiqi JA
• Judgment Date: 13 October 2017
• Docket Number: 771/2016 and 1170/2016 [2017] ZASCA 146
• Hearing Date: 13 October 2017
• Counsel: KJ Kemp SC (with HS Gani and J Thobela-Mkhulisi) for the appellant in case No 771/2016 and second respondent in case No 1170/2016. H Epstein SC (with AL Platt SC and PB Khoza) for the appellants in case No 1170/2016 and the second and third respondents in case No 771/2016. SP Rosenberg SC (with HJ de Waal, DP Borgström and S Vakele) for the first respondent in both cases.
• Court: Supreme Court of Appeal

Navsa ADP (Cachalia JA, Bosielo JA, Leach JA and Tshiqi JA A concurring):

Introduction

[1] TS Eliot spoke of 'the recurrent end of the unending'. [1] The relevance B of these words will soon become apparent. Before us there are two applications for leave to appeal, referred by this court for oral argument in terms of s 17(2)(d) of the Superior Courts Act 10 of 2013. In referring the matter for oral argument, this court directed the parties to be ready, if called upon to do so, to argue the merits of the appeal. The two applications were consolidated as they arise out of the same facts. C We heard the applications and directed that the merits be argued as well. The first application is by Mr Jacob G Zuma, presently the President of the Republic of South Africa. The other application is by the Acting National Director of Public Prosecutions (the ANDPP) [2] and the head of the Directorate of Special Operations (DSO). [3] The applications are directed against a judgment of the Gauteng Division of the High Court, D Pretoria, in terms of which the decision on 1 April 2009 by the then ANDPP, Mr Mokotedi Mpshe, to discontinue the prosecution of Mr Zuma on serious criminal charges, including charges of racketeering, corruption, money-laundering and fraud, was held to be irrational and was reviewed and set aside. The order was at the instance of the Democratic Alliance (the DA), the official opposition in the National E Parliament.

[2] Eight years ago, in 2009, this court in National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) (2009 (1) SACR 361; 2009 (4) BCLR 393; [2009] 2 All SA 243; [2009] ZASCA 1) (hereinafter referred to as Zuma) stated the following in para 2: F

'The litigation between the NDPP and Mr Zuma has a long and troubled history and the law reports are replete with judgments dealing with the matter. It is accordingly unnecessary to say much by way of introduction and a brief summary will suffice.' G

Save for what is set out below, the litigation history up to that point is recounted in that case. [4] I do not intend to repeat it. Much more litigation followed, culminating in the matter presently before us. Unlike instances H

Navsa ADP (Cachalia JA, Bosielo JA, Leach JA and Tshiqi JA concurring)

in A the past, in the present case the National Prosecuting Authority (the NPA) and Mr Zuma made common cause.

[3] The current applications are part of the continuing litigation saga that has endured over many years and involved numerous court cases. It is doubtful that a decision in this case will be the end of the continuing B contestations concerning the prosecution of Mr Zuma. Minutes into the argument before us, counsel for both Mr Zuma and the NPA conceded that the decision to discontinue the prosecution was flawed. Counsel on behalf of Mr Zuma, having made the concession, with the full realisation that the consequence would be that the prosecution of his client would C revive, gave notice that Mr Zuma had every intention in the future to continue to use such processes as are available to him to resist prosecution.

[4] The South African public might well be forgiven for thinking that the description at the beginning of this judgment was coined to deal with the D prosecution or latterly, more accurately, the non-prosecution of Mr Zuma. I shall, in due course, deal with the nature and import of the concessions made by both the NPA and counsel on behalf of Mr Zuma.

[5] At this stage it is necessary to set out in some detail the background to the litigation in the court below. The reason for this is to assess E whether the concessions referred to in [3] above, which will be dealt with in detail later, were rightly made and whether there are other equal or perhaps more compelling considerations over and above those conceded by Mr Zuma and the NPA, which render the decision to discontinue the prosecution liable to be set aside. Furthermore, the history is important in that there are certain aspects in respect of which judicial comment is F required. I now turn to deal with the history of the matter.

The background

[6] Initially, corruption charges were brought by the NPA against Mr Zuma during 2005, before he was elected to the high office he G currently holds, and well after the conviction of his former business associate, Mr Shabir Shaik, on fraud and corruption charges. [5] Investigations related to the criminal charges against Mr Zuma commenced in 2001. During 2006 the case against him was struck from the roll by

Navsa ADP (Cachalia JA, Bosielo JA, Leach JA and Tshiqi JA concurring)

Msimang J in the Durban and Coast Local Division of the High Court, A after an application by the state for a postponement to complete its investigation and finalise an indictment was refused. [6] This had the result that the prosecution was terminated. [7] Not only had Mr Zuma opposed the application by the state for a postponement, but in addition his legal representatives filed an application for a permanent stay of the prosecution. When the matter was struck from the roll that too came to an end. B

[7] On 28 December 2007 a new indictment containing charges of corruption and money-laundering was served on Mr Zuma. This court, in Zuma, held that the then ANDPP, Mr Mokotedi Mpshe, had taken the decision to prosecute. [8] The significance of that finding in relation to the heads of argument initially filed by both the applicants in this C matter, the later supplementary heads filed on behalf of the NPA, and ultimately on the outcome of this case, will be dealt with during the course of this judgment.

[8] Subsequent to the indictment being served, further legal battles were D waged by Mr Zuma against the NPA concerning search warrants and other issues related to his prosecution. For present purposes it is unnecessary to have regard to the other contestations.

[9] On 10 February 2009, more than a year after the new indictment was served, Mr Zuma's legal representatives, in an attempt to persuade the NPA to discontinue the prosecution, made written representations, E purportedly for consideration by Mr Mpshe, in terms of the provisions of s 179(5)(d) of the Constitution [9] which provides:

'The National Director of Public Prosecutions —

Navsa ADP (Cachalia JA, Bosielo JA, Leach JA and Tshiqi JA concurring)

. . . A

(d)

may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:

(i)

The accused person.

(ii)

B The complainant.

(iii)

Any other person or party whom the National Director considers to be relevant.'

[10] I pause to record that these representations were not made under oath. They were also not disclosed to the public, the court below or this C court, on the basis of confidentiality claimed by Mr Zuma and on the basis that they had been made on a 'without prejudice' basis. In resisting the DA's application in the court below to have the decision to discontinue the prosecution set aside, the principal deponent on behalf of the NPA, Mr William Hofmeyr, a Deputy National Director of Public Prosecutions and the head of the Asset Forfeiture Unit in the NPA, D explained that the written representations on behalf of Mr Zuma covered the following topics:

(a)

The merits of the prosecution.

(b)

His intention to challenge the inclusion of racketeering charges in the indictment and whether this would inevitably lead to delays in the E prosecution.

(c)

Mr Zuma's contention that delays in finalising the prosecution and the trial would undermine his right to a fair trial.

(d)

The financial costs of the prosecution.

(e)

Policy and legal implications associated with prosecuting a sitting F President. [10]

(f)

The risks of political, economic and social instability, should the NPA proceed with its prosecution of Mr Zuma.

(g)

The impact of the trial on the administration of justice. They argued that even if the NPA secured a conviction, the majority of South Africans would still believe that Mr Zuma had been treated unfairly.

(h)

G The existence of a political conspiracy, of which the NPA was part, to discredit Mr Zuma.

[11] On 20 February 2009, 10 days after they made written representations, Mr Zuma's legal representatives, attorney Michael Hulley and his counsel Mr Kemp J Kemp SC, made oral representations to the NPA. H The NPA team receiving the representations comprised Mr Mpshe and his deputies, including Mr Sibongile Mzinyathi, a Deputy Director of Public Prosecutions and head of the national prosecutions service in the National Director of Public Prosecution's office, and Mr Thanda

Navsa ADP (Cachalia JA, Bosielo JA, Leach JA and Tshiqi JA concurring)

Mngwengwe, an investigating director with the DSO at the time that A charges were reinstituted, and prosecutor under whose hand the indictment was filed, and acting head: DSO at the time the charges were withdrawn.

[12] Mr Hofmeyr described how the oral representations consisted of two parts. The following are the relevant parts of his affidavit: B

'241.

On 20 February 2009, Michael Hulley and Kemp J Kemp SC (Zuma's legal representatives) made oral representations to the NPA. The NPA delegation comprised of Mpshe and his deputies, including Mzinyathi. Mngwengwe was also present and participated in the representations process. C

242.

The oral representations consisted of two parts: the first part was a briefing which elaborated on the written representations on legal issues and the merits. The second part was a briefing on the allegations of a political conspiracy which included additional information that was not contained in the written...