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January 16, 2009
IN THE HIGH
COURT OF SOUTH AFRICA Reportable
NATAL PROVINCIAL DIVISION
Case No : 8652\08
In the matter between:
JACOB GEDLEYIHLEKISA ZUMA
APPLICANT
and
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS RESPONDENT
JUDGMENT
NICHOLSON J
Introduction
1. The applicant is Jacob
Gedleyihlekisa Zuma. The applicant sets
out in some detail his career
including his participation in the
liberation struggle for
political rights for all in South Africa. He
is
66 years of age and served
time on Robben Island for a political
offence. Thereafter the
applicant went into exile to fight for the
political rights of the
oppressed in this country. Since the advent
2
of democracy he has occupied a
number of senior posts in the
African National Congress
(ANC) and is currently the president.
2. Apart from his party
political career the applicant has at all
material times to this
application held high political office. He was
a member of the KwaZulu-Natal
legislature and the Member of the
Executive Council (MEC) for
Economic Affairs and Tourism for
that province from April 1994
to June 1999.
3. The applicant became a
member of the National Assembly of
Parliament in June 1999. He
was appointed the Deputy President
of the Republic of South
Africa on 19 June 1999 and became
leader of government business
in Parliament. The remainder of
his career will appear from
the facts enumerated in the judgment
hereinafter.
4. The Respondent is the
National Director of Public Prosecutions
(‘the NDPP’).
5. The Society for the
Protection of our Constitution, a voluntary
association, applied to join
these proceedings as an
amicus
curiae.
3
6. The applicant was
represented at the hearing by Mr K J Kemp SC,
assisted by Mr MDCSmithers and
Miss AA Gabriel, the NDPP by
Mr W Trengove SC, assisted by
Mr W Downer SC, Mr George
Baloyi, Mr A Breitenbach, Ms
Kameshni Pillay and Mr A
Steynberg, while the Society
was represented by Mr Z Omar. I am
immeasurably grateful to
counsel for their efforts which have
made my very difficult task a
lot easier by their thorough heads of
argument and other materials.
Background
7. On 23 August 2003 the then
NDPP Mr Bulelani Ngcuka held a
press conference at which he
announced that his office had
decided to prosecute one Mr
Schabir Shaik and a number of
corporate entities in which he
had substantial interests, but not
the applicant who at that time
was the deputy President of the
Republic of South Africa.
8. This prosecution was
pursued and Mr Shaik was in due course
convicted and sentenced to an
effective term of fifteen years
imprisonment. The corporate
entities were also sentenced
appropriately. The Supreme
Court of Appeal and Constitutional
Court have confirmed the
convictions and sentence. It was
4
common cause during that case
(‘the Shaik trial’) that between
October 1995 and September
2002, Shaik personally, and some of
the corporate appellants, made
numerous payments totalling a
substantial amount of money to
or on behalf of the applicant.
9. Discovery of the payments
ultimately led to the prosecution of
Shaik and the corporate
entities. They were charged with three
main counts and in each
instance with a number of lesser
alternate charges. The main
charge on count 1 was that of
contravening section 1(1)(a)(i)
and (ii) of the Corruption Act 94 of
1992 (the CA).
10. The State alleged that
during the relevant period Shaik and one or
other of the corporate
entities made 238 separate payments of
money either directly to or
for the benefit of the applicant. The
State alleged that the object
of the payments was to influence the
applicant to use his name and
political influence for the benefit of
Shaik's business enterprises
or as an ongoing reward for having
done so.
11. The main charge on count 3
was one in terms of s 1(1)(a)(i) of the
CA. During September 1999, Ms
Patricia de Lille, a member of
Parliament, made allegations
concerning corrupt practices during
5
what has become known as the
arms deal. This related to the
purchase of armaments by the
Government of the Republic of
South Africa from a number of
overseas and local contractors. As
a result of her complaints a
number of State institutions,
including the Auditor-General,
the National Prosecuting Authority
and the Public Protector,
became involved.
12. Thomson-CSF (Thomson), a
French company with which Shaik
had participated as part of a
consortium (the German Frigate
Consortium), had acquired a
significant stake in the arms deal, in
particular, the provision of
an armaments suite for corvettes for
the South African Navy
purchased by the Government. The State
alleged that Mr Shaik's
participation, through a local company
called African Defence Systems
(ADS), in which Thomson
acquired a majority stake, was
as a result of the applicant’s
influence.
13. It alleged further, that
during September 1999 and at Durban,
Shaik, acting for himself and
his companies, met Alain Thétard, a
Thomson executive, and that a
suggestion was made that in
return for payment by Thomson
to the applicant of R500 000 per
year, until dividends from ADS
became payable to Shaik, the
applicant would shield Thomson
from the anticipated enquiry and
6
thereafter support and promote
Thomson's business interests in
South Africa.
14. The State alleged that the
suggestion was then approved by
Thomson's head office in Paris
and that a seal was set on this
arrangement at a meeting in
Durban during March 2000 involving
Thétard, Shaik and the
applicant. This led to a document
described in the evidence as
'the encrypted fax' being sent by
Thétard from Pretoria to
Thomson's head office.
15. A few days after Mr Shaik
was convicted and sentenced (see
S v
Shaik & Others
2007 (1)
SACR 142 (D)), on 20 June 2005, the
successor of Mr Ngcuka, the
new NDPP Mr Vusi Pikoli,
announced that his office had
decided to prosecute the applicant.
This was followed up by the
service on the applicant of a
provisional indictment in
November of the same year. The
indictment was a mirror image
of counts 1 and 3 of the charges of
which Mr Shaik had been
convicted.
16. The matter came before
Msimang J on 31 July 2006. The State
applied for a postponement to
complete its investigations and
finalize the indictment. The
application was opposed. Msimang
J, in his judgment of 20
September 2006 refused the
7
postponement and called on the
State to proceed with the trial.
When the State indicated that
it was not ready to proceed to trial,
he struck the matter from the
roll.
17. On 27 December 2007 the
National Prosecuting Authority (“NPA”)
decided once again to
prosecute the applicant. That decision was
followed up with the service
of an indictment on the applicant on
28 December 2008. The
applicant is currently charged together
with Thint Holding (Southern
Africa)(Pty) Ltd (the second
accused) and Thint (Pty) Ltd
(the third accused), with 18 counts,
including charges of
racketeering, corruption, money laundering
and fraud.
The present application
18. Prior to the matter being
called in court on 4 August 2008 the
applicant brought an
application in which he seeks an order in the
following terms:
‘1.
That it is declared that the
decision taken by the National
Prosecuting Authority during
or about June 2005 to prosecute
the applicant is invalid and
is set aside.
2.
8
That it is declared that the
decision taken by the National
Prosecuting Authority during
or about December 2007 to
prosecute the applicant, which
decision was implemented by
the service on the applicant
on 28 December 2007 of an
Indictment, a copy of which is
annexed to the applicant’s
founding affidavit as annexure
“A” thereto (“the Indictment”),
is invalid and is set aside.
3.
That it is declared that the
Indictment is invalid and is set
aside.
4.
That the respondent is ordered
to pay the costs of this
application on the scale as
between attorney and client, such
costs to include the costs
consequent upon the employment
of three Counsel.
5.
That the applicant is granted
such further, other and/or
alternative relief as to the
above Honourable Court may seem
meet.’
19. At the outset I must
emphasise that these proceedings have
nothing to do with the guilt
or otherwise of the applicant on the
charges brought against him.
They deal with the disputed
question of a procedural step
that the State was required to
comply with prior to
instituting proceedings against the applicant.
If there are defects, at best
for the applicant, the present
indictment may be set aside.
Once the defects are cured, subject
of course to any other
applications that are brought, the State is
at liberty to proceed with any
charges they deem meet.
9
The application of the amicus
curiae
20. The Society for the
Protection of our Constitution applied
to join these proceedings as
an amicus curiae. It is
necessary to deal with its
application on the basis that its
participation, evidence and
submissions may have an impact
on how the application should
be approached. The Society
gave notice in its application
that it would seek an order, in
terms of s 168 of the CPA,
that the criminal prosecution
against the applicant be
stayed until he completed his
anticipated term of office as
President of the Republic of
South Africa, alternatively
that it be quashed in its entirety.
21. I am not aware of any case
in our law, whether civil or
criminal, in which an amicus
curiae applied for relief in its
own name. The observation must
also be made that the
relief that the Society seeks
is drastic and considerably more
far-reaching than that sought
by the applicant himself.
The request by the amicus for
a commission of enquiry into the
violation of the applicant’s
constitutional rights.
10
22. The amicus in his
heads of argument asks for an order in
the following terms:
‘20 a) An order that an
investigation be conducted
forthwith to identify all
individuals who participated
in the violation of the
constitutional rights of
President Zuma. These people
must be charged
with the crime of defeating
the ends of justice…’
23. The amicus is effectively
asking for the appointment of a
commission of enquiry into the
violation of the applicant’s
constitutional rights. The
courts have laid down when such
commissions should be
appointed.
24. In these papers frequent
mention is made of the alleged
irregularities in the arms
deal. The applicant says in his founding
affidavit at paragraph 26 that
‘questions relating to alleged
irregularities in the arms
deal were raised from September 1999.
These were raised in the press
and parliament.’
25. There are also widespread
calls for a commission to be appointed
to investigate the Arms Deal.
This court has no power to appoint
any commission of enquiry. The
President is responsible for
appointing commissions of
inquiry in terms of Section 84 (2) (f) of
the Constitution. In terms of
Section 1 (1) (a) of the Commissions
11
Act No. 8 of 1947, if the
President has established a commission
of inquiry he may make the
provisions of the Act applicable
provided the investigation
objectively relates to a matter of
‘public concern’.
26. It was held in
President of RSA and others v SARFU and others
2000 (1) SA 1 (CC) that the
term ‘public concern’ must be a
concern of members of the
public which is widely shared
(paragraph 175).
27. In Bell v Van Rensburg
NO 1971 (3) SA 694 C the court referred at
page 710 et seq to the Salmon
Report in England with approval
which held that the
inquisitorial methods of commissions should
never be used for a matter of
purely local or minor public interest
but should always be
restricted to matters of material public
interest with regard to which
there exists a nation wide crisis of
confidence. In such cases the
court concluded that no other
method of investigation would
be adequate.
28. The court in the Bell case
also approved statements to the effect
that commissions should be
appointed to maintain the unsullied
integrity of our public life,
without which a successful democracy
is not possible. It held that
it is essential that on the infrequent
12
occasions when crises in
public confidence take place, the evil, if
it exists, should be exposed
so that it can be eradicated lock,
stock and barrel. On the other
hand if it does not exist the general
public can be satisfied that
there is no substance in the general
rumours and suspicions that
gave rise to such crises. The court
concluded that the public
places its confidence in such a
commission to conduct the most
assiduous investigation and to
call evidence in order to
expose the truth. It is only in this manner
that public confidence can be
restored.
29. Mr du Plooy the deponent
to the answering affidavit of
respondent has indicated that
all his investigations were as a
result of what Ms Patricia de
Lille said in Parliament. He says
‘The investigations had their
origins in broad-ranging
allegations of impropriety
relating to the arms deal.
Those allegations were made,
inter alia, in September
1999 by an opposition member
of Parliament Ms Patricia
de Lille.’
30. It would be naïve to
suggest that the allegations concerning
corruption relating to the
arms deal have ceased or diminished in
intensity. They purport to
involve very senior figures in
government from the President
downwards. The Constitutional
Court – the highest judicial
custodians of the fountain of all our
13
power and authority – the
constitution – has said the following of
and concerning corruption and
maladministration.
‘[4] Corruption and
maladministration are inconsistent
with the rule of law and the
fundamental values of our
Constitution. They undermine
the constitutional
commitment to human dignity,
the achievement of
equality and the advancement
of human rights and
freedoms. They are the
antithesis of the open,
accountable, democratic
government required by the
Constitution. If allowed to go
unchecked and
unpunished they will pose a
serious threat to our
democratic State.’
Per Chaskalson P (as he then
was, later Chief Justice) in
South African Association of
Personal Injury Lawyers v
Heath and Others
2001 (1)
SA 883 (CC).
31. In S v Ebrahim 1991
(2) SA 553 (AD) the court cited with approval
the American case of
Olmstead v United States 277 US 438, where
Justice Brandeis said the
following:
‘Decency, security and liberty
alike demand that
Government officials shall be
subjected to the same
rules of conduct that are
commands to the citizen. In a
government of laws, existence
of the Government will
be imperiled if it fails to
observe the law scrupulously.
Our Government is the potent,
the omnipresent teacher.
For good or for ill, it
teaches the whole people by its
example. Crime is contagious.
If the Government
becomes a lawbreaker, it
breeds contempt for law; it
invites every man to become a
law unto himself; it
invites anarchy.’
14
32. The applicant is accused
of writing a letter dated 19 January 2001
to Gavin Woods MP the
chairperson of the Parliamentary
Standing Committee on Public
Accounts with the intention of
blocking the Heath Unit from
investigating the Arms Deal. The
applicant points out that the
President’s office drafted the letter.
There is no denial filed by
the President. The court can hardly be
unaware of the other dark
mutterings emanating from the
applicant that if he goes down
others will follow him. Like a
blinded Samson he threatens to
make sure the temple collapses
with him. The impression
created is that the applicant has
knowledge he will disclose if
he is faced with conviction and
sentence.
33. Only a commission of
enquiry can properly rid our land of this
cancer that is devouring the
body politic and the reputation for
integrity built up so
assiduously after the fall of Apartheid. If
the
allegations made by Ms de
Lille and a group of courageous
journalists are true then
there is no better reason for a
commission to probe this
corruption.
34. If their allegations are
not true then the political leaders of our
society should not be
permitted to be defamed and slandered in
this shameless and despicable
way. If they are innocent they
15
should not be required to
resort to the ordinary courts to defend
their good names and
reputations. The public purse should fund
a commission of enquiry so
that they can govern in peace and
tranquility and not under an
ever present cloud of suspicion and
scandal.
35. There is unimpeachable
authority for this. The amicus seeks an
order for a commission to
vindicate the reputation of the
applicant. This has been done
on at least one previous occasion
by the president. On 19
September 2003, scarcely one month after
Mr Ngcuka held his press
conference to announce his intention to
prosecute Mr Shaik and not the
applicant, a commission of
enquiry was instituted by the
President under Gov Gaz No 25481
Regulation Gazette No 7771, to
‘Inquire into, make findings,
report on and make
recommendations concerning the
following: Whether at
any stage prior to 1994, the
National Director of Public
Prosecutions, Mr BT Ngcuka,
was –
(a) registered with the
security
branch or any other service of
any other security service of
any pre-1994 government as an
agent under the code name RS
452 or under any other code
name; and
(b) Acting as an agent for the
Security Police and/or
National
16
Intelligence Service of any
pre-
1994 government.’
36. That commission was
appointed to investigate the scandalous
allegations made of the NDPP
at that time. It seems to me so
much more important to appoint
a commission to thoroughly
investigate whether there is
truth in the allegations of widespread
corruption and, if there is
not, to clear the name of President
Mbeki and those others
unjustly accused.
37. To return to the request
of the Amicus for this court to appoint a
commission of enquiry into the
scandalous allegations made of
the applicant. From the above
it is abundantly clear that the court
cannot perform such a
function. To make such an order would be
what is known in the law as a
brutum fulmen – a useless
thunderbolt. It is only the
president who is empowered by the
constitution to appoint
commissions. That relief sought by the
amicus must therefore be
refused.
38. The other relief sought by
the amicus, seeking orders staying or
dismissing the charges against
the applicant permanently or until
his term of office as
President of South Africa ceases, is similarly
misconceived and must be
dismissed.
17
39. There are other reasons
why the application of the amicus cannot
succeed. In
Certain Amicus
Curiae Applications, In re: Minister of
Health and Others v Treatment
Action Campaign and Others
(CCT8/02)(5 July 2002) the
Constitutional Court said the following:
‘The role of an amicus is to
draw the attention of the
court to relevant matters of
law and fact to which
attention would not otherwise
be drawn. In return for the
privilege of participating in
the proceedings without
having to qualify as a party,
an amicus has a special
duty to the court. That duty
is to provide cogent and
helpful submissions that
assist the court. The amicus
must not repeat arguments
already made but must raise
new contentions; and generally
these new contentions
must be raised on the data
already before the court.
Ordinarily it is inappropriate
for an amicus to try to
introduce new contentions
based on fresh evidence.’
40. The NDPP, on behalf of the
State, objected to the admission of the
Society as an amicus, while
the applicant, through his counsel,
while not expressly supporting
the application, did not object
thereto. In his affidavit in
support of the amicus application, Mr
William Mahlangu, the
chairperson of the Society attacks the
method of securing attendance
at court of the applicant which is
not a live issue in the
application at all. The deponent also makes
similar allegations of a
political conspiracy against the applicant
which add nothing to what the
applicant has said himself. I
accordingly find that the
admission of the Society will not be of
any assistance to this Court
in its deliberations.
18
The applications to strike out
41. The respondent has applied
to strike out 15 items, some including
multiple paragraphs, of the
applicant’s founding affidavit. The
first item relates to the
biographical material of the applicant and
his part in the struggle for
democratic rights in South Africa. The
remaining paragraphs
complained of can be broadly described as
being offensive because they
insinuate that there is political
meddling in the prosecution
process. This is a serious allegation
and must be examined with the
most anxious deliberation, as it
strikes to the heart of our
democracy. The independence of the
NPA and the prohibition on
executive interference will be
examined in detail later in
the judgment. The role of the courts to
monitor and halt any such
executive action was unequivocally
asserted by the Constitutional
Court in In Re Certification of the
Constitution of the RSA
1996(4) SA 744 at para [146] where the
Court held that
‘[section] 179(4) [of the
Constitution] provides that the
national legislation must
ensure that the prosecuting
authority exercises its
functions, without fear, favour of
prejudice. There is
accordingly a constitutional
guarantee of independence, and
any legislation or
executive
action
inconsistent therewith would be
subject to constitutional
control by the Courts.’
(Emphasis added.)
19
42. There is therefore an
emphatic constitutional imperative to outlaw
any executive action which
seeks to interfere with the
independence of the
prosecuting authority. The applicant in turn
applies to strike out seven
paragraphs and one annexure in the
respondent’s answering
affidavits. The material that causes
offence relates to allegations
of improper conduct by applicant
and his legal representatives
and the inclusion of other
proceedings about such conduct
and the award of costs in such
other proceedings.
43. These are substantive
applications and are accompanied by
affidavits setting out the
reasons for striking out the relevant
paragraphs. Both applications
include prayers for punitive costs
on the attorney and client
scale. At no stage did either party
abandon these applications and
the court is therefore compelled
to deal with them. It is of
course trite that in order to rule on what
is irrelevant, or scandalous
and vexatious the court has to look at
the merits and what is
relevant to the live issues therein. See
Elher (Pty) Ltd v Silver
1947 (4) SA 173 (W) at 176-7. I accordingly
propose to look at the merits
before determining the strike out
applications.
20
Was applicant entitled to make
representations in terms of the relevant
law?
44. The crisp issue for
determination is whether the applicant was
entitled to make
representations to the NDPP before the
decision
was taken to prosecute him.
45. Section 179(5)(d) of the
Constitution of the Republic of South
Africa, Act no 108 of 1996
provides as follows:
‘[The National Director Public
Prosecutions] 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 Public Prosecutions,
from the following:
(i) The accused person.
(ii) The complainant.
(iii) Any other person or
party whom the National
Director considers to be
relevant.’
46. The NDPP contends that
these provisions do not apply to the
decision to prosecute the
appellant in this matter. It is common
cause that the applicant was
not afforded an opportunity to make
representations.
21
47. The obligation to hear
representations forms part of the
audi
alteram partem
principle.
What is required is that a person who
may be adversely affected by a
decision be given an opportunity
to make representations with a
view to procuring a favourable
result. The affected person
should usually be informed of the gist
or the substance of the case,
which he is to answer. The affected
person has no general right to
receive every piece of information
relevant to the decision. See
Chairman, Board on Tariffs and
Trade v Brenco Inc and Others
2001(4) SA 511 (SCA) paras 13, 14,
29, 30 and 42.
Radio
Pretoria v Chairman, Independent
Communications Authority of
South Africa 2003(5) SA 451 (T)
para 24.6.
48. In order to give effect to
the right to procedurally fair
administrative action, the
respondent had to give the applicant
adequate notice of the nature
and purpose of the proposed
administrative action. The
proposed administrative action was the
exercise of the discretion to
change his decision not to prosecute
to one prosecuting the
applicant.
49. The duty to give a
reasonable opportunity to make
representations had to be in
the context of the reasons not to
prosecute the applicant which
had changed thereafter.
22
50. In the case of
Nisec
(Pty) Ltd v Western Cape Provincial Tender
Board and Others
1998 3 SA
228 (C) at 234-5 Davis J held that
‘In summary, it appears that a
right to a hearing does
include the provision of such
information which would
render the hearing meaningful
in that the aggrieved
party is given an opportunity
to know all the
ramifications of the case
against him and thereby is
provided with the opportunity
to meet such a case.’
51. The ramifications of the
case against the applicant would surely
include the basis upon which
the respondent had since changed
his thinking about the
decision to prosecute. As Colman J said in
Heatherdale Farms (Pty) Ltd
and Others v Deputy Minister of
Agriculture and Another
1980 (3) SA 476 (T) at 486D--F:
`It is clear on the
authorities that a person who is
entitled to the benefit of the
audi alteram partem rule
need not be afforded all the
facilities which are allowed
to a litigant in a judicial
trial. He need not be given an
oral hearing, or allowed
representation by an attorney or
counsel; he need not be given
an opportunity to crossexamine;
and he is not entitled to
discovery of
documents. But on the other
hand (and for this no
authority is needed) a mere
pretence at giving the
person concerned a hearing
would clearly not be
compliance with the rule. . .
. What would follow . . . is,
firstly, that the person
concerned must be given a
reasonable time in which to
assemble the relevant
information and to prepare and
put forward his
representation; secondly he
must be put in possession
of such information as will
render his right to make
representations a real, and
not an illusory one.'
23
52. The right to make
representations would only be real and not
illusory if the applicant knew
what criteria were applied in not
prosecuting him and how those
had changed. I will return to the
competing contentions of the
parties in this matter but it suffices
to say that the applicant
submits the two decisions were as a
result of a political campaign
against him and the respondent
maintains it was as a result
of new evidence that had been
discovered.
53. The applicant claims that
the decision to prosecute him
constitutes a ‘review’ of an
earlier decision not to prosecute,
hence he is entitled to make
representations to the NDPP in terms
of section 179(5)(d) of
the Constitution, and the virtually
identically worded section
22(2)(c) of the National Prosecuting
Authority Act 32 of 1998 (‘the
NPA Act’).The applicant has to have
regard to the provisions of
the national legislation, even though
he refers to the constitution.
It has been held that where
legislation is enacted to give
effect to a constitutional right, a
litigant may not bypass that
legislation and rely directly on the
Constitution without
challenging that legislation as falling short
of
the constitutional standard.
See South African National Defence
Union v Minister of Defence
and others 2007 (5) SA 400 (CC) at
paragraph 51. The applicant
does not challenge the
24
constitutionality of the
relevant provision in the NPA Act. Where
the two are in virtually
identical terms it does not seem to me to
be a problem to refer to the
wording in the constitution. The fact
that such wording is contained
in that document could hardly
diminish its status. It must
always be borne in mind that section 2
provides that the Constitution
is the supreme law of the Republic;
law or conduct inconsistent
with it is invalid, and the obligations
imposed by it must be
fulfilled.
The nature of the proceedings
54. There was some debate as
to the nature of these proceedings. Mr
Kemp suggested that they were
in the nature of or akin to section
106(1)(h) of the Criminal
Procedure Act, no 51 of 1977, which is to
the effect that when an
accused pleads to a charge he may plead
that the prosecutor has no
title to prosecute. Sub-section (3)
provides that an accused shall
give reasonable notice to the
prosecution of such a plea
though such may be waived by the
prosecutor or the Court may on
good cause shown dispense with
such notice or adjourn the
trial to enable such notice to be given.
55. It is manifest that such a
plea is available if the prosecutor has
not been properly appointed
and in that case the proceedings are
25
a nullity. I have a number of
difficulties with the submission that
this application is akin to or
even in terms of section 106. Firstly
the section commences with the
words ‘When an accused pleads
to a charge’. It is manifest
that the applicant has not had the
charges in the indictment put
to him let alone pleaded to them. In
addition I understand that it
was the intention of the applicant to
seek further particulars to
the charge before it was put to him.
56. The second problem relates
to the ambit of this particular plea. It
has been held that the
sub-section refers specifically to a plea
addressing whether the
prosecutor has title to prosecute. The
plea therefore relates to the
right or authority of the prosecutor to
appear as a prosecutor in the
case. See Ndluli v Wilken NO and
others
1991(1) SA 297 (AD)
at 306 C – D. I do not, therefore,
believe that section 106
avails the applicant at this stage.
57. Are the proceedings
therefore civil in nature? Mr Trengove
argued that the Court is
precluded from considering this
application because it does
not constitute administrative action in
terms of the Promotion of
Administrative Justice Act No 3 of 2000
(PAJA). Section 6(1) provides
that any person may institute
proceedings in a Court or
tribunal for the judicial review of an
administrative action.
‘Administrative action’ is defined in section
26
1(ff) to mean any decision
taken by an organ of State which
adversely affects the rights
of any person and which has a direct,
external legal effect, but
does not include a decision to institute
or continue a prosecution.
58. It is clear that a
decision not to prosecute an accused is
subject
to review by the Court though
not one to institute a prosecution.
Put differently, the Court’s
jurisdiction to review a decision to
prosecute is excluded.
Although clearly not identical this
exclusion has much in common
with what are termed ouster
clauses.
59. In Rex v Padsha
1923 AD 281 the Appellate Division had reason
to consider a section of the
Immigration Regulation Act 22 of 1913
which provided that any person
or class of persons deemed by
the Minister on economic
grounds inter alia shall be a
prohibited
immigrant. Acting under these
powers the Minister issued a
notice in which he deemed
every Asiatic person to be unsuited on
economic grounds to come and
live in this country. Surprisingly
the majority of judges in that
Court upheld the validity of the
notice. The majority decision
saw nothing wrong with
stigmatising the whole
population of Asia as unsuitable on
economic grounds from entering
South Africa. Broadly stated,
27
every Asiatic, the majority
held, would threaten the job security of
the population of this
country.
60. Even traders, teachers,
lawyers and priests were not welcome.
Clearly the South African
experience of one particularly
troublesome immigrant had
immense influence on the Court’s
decision. The Court said and I
quote
‘Moreover, a person of that
class, exercising influence
over his fellow Asiatics may
become a disturbing factor
in the industrial processes of
the country, as actually
happened in the now historic
case of Gandhi.’
61. Fortunately Innes CJ, in
the minority, saw things differently. The
relevant law conferred upon
Immigration Boards’ exclusive
jurisdiction in deciding
immigration matters and ousted the
jurisdiction of the Courts.
Chief Justice Innes then said
‘It is competent for
Parliament to oust the jurisdiction of
Courts of law if it considers
such a course advisable in
the public interest. But where
it takes away the right of
an aggrieved person to apply
to the only authority which
can investigate and, where
necessary, redress his
grievance, it ought surely to
do so in the clearest
language. Courts of law should
not be astute to
construe doubtful words in a
sense which will prevent
them from doing what prima
facie is their duty, namely,
from investigating cases of
alleged injustice or
illegality.’
28
62. The Courts have followed
the words of Innes CJ in a large number
of decisions which have
adroitly side-stepped ouster clauses in a
plethora of statutes.
63. PAJA excludes the Court’s
right to review a decision to
prosecute. Does this ouster
provision preclude this Court
investigating a defective
procedure which preceded the making of
the decision? Assuming the
right of an accused to make
representations, would this
oust the right of the Courts to review
a failure by the NDPP to
afford such a right? It should be borne in
mind that a review is
essentially a court procedure aimed at
inadequacies in the process
and not the merits of the decision.
64. The decision taken to
prosecute the applicant would be one in
terms of section 179(5)(d) of
the Constitution which is one taken,
after consulting with DPPs and
taking representations from the
accused inter alia. On
this hypothesis the decision by Mr Pikoli
and his successor Mr Mpshe was
not such a decision taken after
consulting such persons and it
falls outside the provision
precluding the Court’s review
powers. Put differently, the
jurisdictional facts that
should have preceded the making of the
decision, were consultations
with the DPPs and the right of the
accused inter alia to
make representations. Once these
29
jurisdictional facts were
absent the decision ceased to be one in
terms of section 179(5)(d) and
became justiciable under PAJA.
65. There is ample authority
for this proposition, including
Minister of
Law and Order v Hurley and
another 1986(3) 568 AD at 584 et seq.
In that case the Court
referred with approval to
Rex v Padsha
(supra). Hurley’s case
involved an ouster clause relating to arrest
and detention of persons in
terms of section 29(1) of the Internal
Security Act 74 of 1982, which
could only take place if a
policeman with the rank of
lieutenant-colonel or higher had
reason to believe the person
had committed certain offences.
The Court held that the ouster
clause did not avail the police if a
policeman, for example, of a
lower rank performed the arrest. It
did not avail the policeman
also if he did not have reason to
believe in the sense of
informing the Court of the reasons. (See
page 584 F – I).
66. In casu, therefore,
if a decision needed the accused to make
representations such was not a
decision in terms of section
179(5)(d) if no
representations were entertained. I believe
the
Court’s jurisdiction remains
unimpaired. It is not therefore
necessary to consider the
fascinating arguments as to whether
PAJA constitutes an exclusive
codification of the rights of review.
30
I am of the judgment that this
application is in the nature of a civil
review and I have therefore
excluded my assessors from such
decision.
The proper approach to
interpretation
67. The courts have held that
the proper approach to the
interpretation of a statute is
to seek the intention of the
legislature. The rules of
interpretation are set out in
S v Toms: S v
Bruce
1990 (2) SA 802 (AD)
at 807H-808A where the court stated
as follows:
‘The primary rule in the
construction of statutory
provisions is to ascertain the
intention of the
Legislature. One does so by
attributing to the words of
a statute their ordinary,
literal, grammatical meaning.
Where the language of a
statute, so viewed, is clear
and unambiguous effect must be
given thereto, unless
to do so… would lead to
absurdity so glaring that it
could never have been
contemplated by the
Legislature, or where it would
lead to a result contrary
to the intention of the
Legislature, as shown by the
context or by such other
considerations as the Court
is justified in taking into
account… The words used in
an Act must therefore be
viewed in the broader context
of such Act as a whole… When
the language of a
statute is not clear and
unambiguous one may resort
to other canons of
construction in order to determine
the Legislature’s intention.
(Case references omitted.)
68. Both counsel Mr Kemp and
Mr Trengove submitted that there was
no ambiguity and that sensible
meaning could be given to the
31
words in the sub-section in
question. It may be as well at the
outset to define the limits of
the competing arguments over the
interpretation of the
sub-section. It is clear that what occurred
was a decision by the NDPP
either by himself or in all probability
in conjunction with the head
of the Directorate of Special
Operations, a Deputy National
Director, Mr McCarthy. Secondly,
the process they went through
in deciding to prosecute the
applicant was clearly a review
in its ordinary sense of a
reconsideration, alteration or
substitution of a previous decision
not to prosecute.
69. Although the right or duty
to review a decision to prosecute or
not to prosecute is clearly
discretionary once the NDPP and Mr
McCarthy decided to embark on
that exercise there must be some
circumstances in which, when
they did so, they were obliged to
consult the relevant Director
of Public Prosecutions (DPPs) and
take representations within a
period specified by the National
Director Public Prosecutions,
from the accused person, the
complainant and any other
person or party whom the NDPP
considers to be relevant. In
other words there is no merit in an
argument that there are no
circumstances in which he or they are
not obliged to consult
inter alia the accused.
32
70. As it common cause that
this obligation to take representations
relates only to the NDPP it
does not apply to a prosecutor in the
Magistrates’ Court or the High
Court, when confronted with a
possible review of a decision
to prosecute or not to. The words
‘after consulting the relevant
DPPs’ seemed to be the cause of the
most controversy in argument.
Mr Trengove submitted that the
duty of a NDPP to take
representations of an accused were
limited to only those
occasions when he was overruling a
decision of a DPP and not when
he was overruling his own
decision or the decision of
his predecessor.
71. In other words the
contention of the applicant, so the argument
for respondent went, meant
that the sub-section should be read
without the words in question.
In that event the sub-section would
read that ‘[The National
Director Public Prosecutions] may review
a decision to prosecute or not
to prosecute after taking
representations within a
period specified by the National Director
Public Prosecutions, from the
following: the accused person, the
complainant and any other
person or party whom the National
Director considers to be
relevant.’
72. Had the sub-section read
in that fashion there would have been
no doubt that the applicant
had to have a chance to make
33
representations once the NDPP
embarked on a review. Mr Kemp
submitted that the sub-section
does not state that ‘[The National
Director Public Prosecutions]
may review a decision to prosecute
or not to prosecute of a
Director of Public Prosecutions, after
consulting etc…’ It is also
clear that the words in italics are not
present and their inclusion
would have also put the matter
beyond any doubt. The real
importance in the sub-section seems
to be to allow
representations, by an accused, where a
decision
not to prosecute has been
reversed, and to a complainant, where
a prior decision to prosecute
has been altered to one not to
prosecute.
73. Assuming that there must
be occasions when representations
had to be heard from an
accused, those made by the NDPP would
be in more serious matters
than those made by the DPPs and
their subordinates. Looked at
from the perspective of the NDPP,
the right to simply reverse
his own previous decision not to
prosecute, might be seen to
arise from his elevated status. From
the perspective of the
accused, the fact that a decision required
the attention of the NDPP
would necessarily be of great moment
to him (the accused) and would
obviously require such an
accused to be afforded the
opportunity to make representations.
That he cannot make
representations in such a case, on the
34
respondent’s version, would
also, for obvious reasons, be an
absurdity.
74. Another absurdity would be
that an unscrupulous DPP intent on
having a previous decision
changed could either change it
himself or ask someone below
the rank of NDPP i.e. a Deputy
National Director to review
the decision. In each case the accused
would be out in the cold in
the sense of not being able to make
representations.
75. I am of the view that all
these considerations incline me to hold
that there does seem to be
some ambiguity in the sub-section and
the words are not capable of
unequivocal interpretation. Looked
at from the accused’s
perspective there is also a glaring absurdity
that the review of a decision
not to prosecute him of a lower
subordinate of the NDPP, i.e.
the DPP, in arguably a less serious
matter would entitle him to
make representations, while a more
serious matter involving the
decision of the NDPP alone would
leave him out in the cold.
76. Given that there are these
and other glaring absurdities and that
the negation of the right of
an accused to make representations
may lead to a result contrary
to the intention of the Legislature, it
35
is necessary to look at the
context in which the words appear in
the Act as a whole. As appears
from the authority cited earlier
when the language of a statute
is not clear and unambiguous one
may also resort to other
canons of construction in order to
determine the Legislature’s
intention.
77. To ascertain the intention
of the legislature we have to look at the
mischief the new provisions
were designed to remedy. In order to
properly understand the
provisions of the section it is necessary
to look at the history of the
Act and its predecessors.
78. From time immemorial the
executive has cherished the notion of
usurping the independent
function of the prosecuting authority
and directing criminal
prosecutions at its political opponents.
That it was so under the
Apartheid Government is manifest and
the catalogue of prosecutions,
from the Treason Trial in the early
sixties, to the plethora of
prosecutions thereafter under the
Terrorism Act of 1967, bear
witness to that stratagem. Many
activists, fighting against
the apartheid system, languished for
many years behind bars, as a
result of prosecutions at the
instance of the executive.
36
79. The political control of
prosecutions was effected by a series of
statutes, the last, during the
Apartheid era, being section 3 of the
CPA. Section 3 of the CPA
provided the authority to prosecute
prior to 1992 and gave the
Minister of Justice complete control
over the provincial
attorneys-general. Section 3(5) provided as
follows:
‘An attorney-general shall
exercise his authority and perform
his functions under this Act
or under any other law subject to
the control and directions of
the Minister who may reverse any
decision arrived at by an
attorney-general and may himself in
general or in any specific
matter exercise any part of such
authority and perform any of
such functions.’
80. The daunting prospect of
the Minister of Justice, in the new South
Africa, giving directions for
prosecutions against the architects
and executioners of the
Apartheid policy, galvanized the mostly
white legislature to pass the
Attorney-General Act, no 92 of 1992,
(the AG Act) in its death
throes. The AG Act took away all political
control over prosecutions,
repealed section 3 of the CPA and
provided in section 5(1) that
every attorney-general had the
authority to prosecute in any
court within his jurisdiction. Section
108(1) of the Interim
Constitution repeated the notion of an
absence of political
interference, when it vested attorneys-general
with the power to institute
prosecutions on behalf of the State.
37
81. Section 179 of the Final
Constitution introduced the notion of
National Director of Public
Prosecutions (the NDPP) with powers
of control over the old
provincial attorneys-general, who now
became Directors of Public
Prosecutions.
82. A perusal of the remaining
sub-sections of section 179 assists in
interpreting the statute.
Section 179(5) provides the NDPP with
the responsibility to
determine, with the concurrence of Cabinet
members, responsible for the
administration of justice and after
consulting DPPs, prosecution
policy which must be adhered to in
all prosecutions. In addition
he bears the responsibility to issue
policy directives, which
must be observed in all prosecutions.
The corollary of this is the
power of the NDPP to intervene in the
prosecution process when
prosecution policy directives are not
complied with.
83. Section 179 provides for
the creation of the Prosecuting authority.
In terms of sub-section (1) it
calls into being a single national
prosecuting authority
consisting of the NDPP, who is the head of
the prosecuting authority, and
is appointed by the President, and
Directors of Public
Prosecutions (‘DPPs’) and prosecutors as
determined by an Act of
Parliament.
38
84. Sub-section (2) of section
179 provides that the prosecuting
authority has the power to
institute criminal proceedings on
behalf of the state, and to
carry out any necessary functions
incidental to instituting
criminal proceedings.
85. Sub-section (3) provides
that national legislation must ensure that
the DPPs are appropriately
qualified; and are responsible for
prosecutions in specific
jurisdictions, subject to subsection (5).
Sub-section (4) continues by
providing that national legislation
must
ensure that the
prosecuting authority exercises its functions
without fear, favour or
prejudice. I interpolate here to mention that
this is but one of many clear
indications that the NDPP and the
prosecuting authority are
independent and must be free of all
political interference.
Further reference will be made to this but it
is instructive to note that
the Constitutional Court has asserted
this independence in no
uncertain terms. Mention has been made
of the Certification case in
which the Constitutional Court held
there is accordingly a
constitutional guarantee of independence,
and any legislation or
executive action inconsistent therewith
would be subject to
constitutional control by the Courts.
86. In Carmichele v
Minister of Safety and Security and Another
2002
(1) SACR 79 (CC) the court
held
39
‘Prosecutors have always owed
a duty to carry out their
public functions independently
and in the interests of
the public.’
87. Sub-section (5) provides
that the NDPP must determine, with the
concurrence of the Cabinet
member responsible for the
administration of justice, and
after consulting the DPPs
prosecution policy and must
issue policy directives which must
be observed in the prosecution
process. The NDPP may intervene
in the prosecution process
when policy directives are not
complied with and may review a
decision to prosecute or not to
prosecute as I have indicated
above.
88. Sub-section (6) provides
that the Cabinet member responsible for
the administration of justice
must exercise final responsibility
over the prosecuting
authority. That this does not imply any right
to interfere with a decision
to prosecute is clear from what
follows.
89. In their submissions to
the Enquiry into the NDPP (the Pikoli
Enquiry) by the South African
Institute for Advanced
Constitutional, Public, Human
Rights and International law by
Hannah Woolaver and Michael
Bishop published in Advocate
August 2008 at page 31 the
authors state :
40
‘Therefore, the Minister's
powers of oversight are
confined to those included in
the Act. As already
discussed, these include the
requirement that the
Minister approve prosecution
policy, and various duties
on the NDPP to provide
information and submit reports
to the Minister. The Act gives
no power to the Minister
regarding the exercise of
prosecutorial discretion in
individual cases. As such,
individual decisions
regarding whether or not to
prosecute in a particular
case are not within the
purview of the Minister's ‘final
responsibility'. These rest in
the exclusive discretion of
the prosecuting authority, and
ultimately the National
Director.’
90. I agree with this summary
of the position. Pursuant to the
imperative to produce national
legislation parliament has passed
the NPA Act, which provides in
terms of section 22 for the NDPP
as the head of the prosecuting
authority, to have authority over
the exercising of all the
powers, and the performance of all the
duties and functions conferred
by the Constitution or that Act
law. Of particular interest in
the present enquiry is sub-section
(4) which provides that in
addition to any other powers, duties
and functions conferred on the
NDPP he may conduct any
investigation he may deem
necessary in respect of a prosecution
and may direct the submission
of and receive reports from a DPP
in respect of a case, a
matter, a prosecution or a prosecution
process or directions.
41
91. Section 32 provides a
further indication of the desire of
Parliament to prevent
interference, political and otherwise from
the decisions to prosecute. It
provides for the impartiality of, and
oath or affirmation by members
of prosecuting authority. Subsection
(1)(a) provides that a member
of the prosecuting authority
shall serve impartially and
carry out his duties and functions in
good faith and without fear,
favour or prejudice and subject only
to the Constitution and the
law. Sub-section (1)(b) provides a very
strong imperative against
interference with a member of the
prosecuting authority. It
provides that no organ of state and no
member of an organ of state
nor any other person shall
improperly interfere with,
hinder or obstruct the prosecuting
authority in the exercise of
its duties and functions.
92. To enforce the seriousness
of this prohibition on any interference
by any person from the
President downwards section 41 provides
that contravention of that
sub-section is a serious offence and
any person contravening it
shall be liable on conviction to a fine
or to imprisonment for a
period not exceeding 10 years or to both
such fine and such
imprisonment.
42
93. That there should be no
political influence was trenchantly stated
in S v Yengeni 2006 (1)
SACR 405 (T) at paragraph [51] where
Bertelsmann and Preller JJ
observed
‘The Constitution guarantees
the professional
independence of the [NDPP] and
every professional
member of his staff, with the
obvious aim of ensuring
their freedom from any
interference in their functions by
the powerful, the
well-connected, the rich and the
peddlers of political
influence.’
94. What the learned judges
were saying in that case was that the
independence of the
prosecuting authority is vital to the
independence of the whole
legal process. If one political faction
or sectional interest gains a
monopoly over its workings the
judiciary will cease to be
independent and will become part of a
political process of
persecution of one particular targeted
political
enemy.
95. How then does this impact
on the power of the NDPP to review a
decision to prosecute or not
to prosecute? He sits at the apex of
the prosecuting authority,
insulated from political interference
and is the final decision
maker in the prosecuting process.
Should an accused challenge a
decision to prosecute, the NDPP
is the final port of call in
the administrative process of making
representations. Having been
largely instrumental in creating
43
prosecuting policy and after
giving prosecuting directives he is
obliged to ensure they are
carried out.
96. The hierarchy of
prosecuting authority requires that decisions
to
prosecute are made by various
levels in descending order from
the NDPP and down through the
ranks of DPPs to the lowest
prosecutor. The NDPP is
empowered alone to authorize
prosecutions in certain
instances including the Prevention of
Organised Crime Act, no 121 of
1998, sections of the Films and
Publications Act 65 of 1996,
and The Implementation of the Rome
Statute of the International
Criminal Court Act, no 27 of 2002. The
fact that authorization is
required from the NDPP tends to suggest
that he is not involved in the
actual prosecution itself and
authorizes the DSO to
prosecute. Apart from that the lower levels
of prosecutors below DPPs
exercise a delegated authority to
bring prosecutions in the
courts.
97. Acting on this delegated
authority prosecutors decide to
prosecute or not depending on
criteria established in the policy
directives emanating from the
prosecution policy. The
prosecution policy talks of
exercising its function ‘without fear,
favour or prejudice’ and that
the process must be ‘fair,
transparent, consistent and
predictable’. It purports to promote
44
‘greater consistency in
prosecutorial practices nationally’. It
requires
‘members of the Prosecuting
Authority to act impartially and in
good faith. They should not
allow their judgment to be
influenced by factors such as
their personal views regarding
the nature of the offence or
the race, ethnic or national origin,
sex, religious beliefs,
status, political views or sexual
orientation of the victim,
witnesses or the offender.’
98. The policy states further
that
‘The decision whether or not
to prosecute must be taken with
care, because it may have
profound consequences for victims,
witnesses, accused and their
families. A wrong decision may
also undermine the community’s
confidence in the
prosecution system… Once a
prosecutor is satisfied that there
is sufficient evidence to
provide a reasonable prospect of a
conviction, a prosecution
should normally follow, unless
public interest demands
otherwise.’
99. The prosecution policy
deals with the question of public interest
and mentions factors that
should be taken into account including
‘the seriousness of the
offence,… the manner in which it was
committed, the motivation for
the act and the relationship
between the accused and the
victim. The nature of the offence,
its prevalence and recurrence,
and its effect on public order
and morale.’
100. The policy also makes
mention of ‘the need for individual and
general deterrence, and the
necessity of maintaining public
confidence in the criminal
justice system.’
45
101. Mention is also made of
the circumstances of the offender
including, ‘previous
convictions, criminal history, background,
culpability and personal
circumstances as well as other
mitigating and aggravating
factors.’
102. The policy speaks about
restarting a prosecution and says the
following
‘People should be able to rely
on and accept decisions
made by members of the
Prosecuting Authority.
Normally, when a suspect or an
accused is informed
that there will not be a
prosecution or that charges have
been withdrawn, that should be
the end of the matter.
There may, however, be special
reasons why a
prosecutor will review a
particular case and restart the
prosecution. These include… an
indication that the
initial decision was clearly
wrong and should not be
allowed to stand; an instance
where a case has not been
proceeded with in order to
allow the police to gather and
collate more evidence, in
which case the prosecutor
should normally have informed
the accused that the
prosecution might well start
again… a situation where a
prosecution has not been
proceeded with due to the
lack of evidence, but where
sufficient incriminating
evidence has since come to
light…’
103. Regard should also be had
to the Code of Conduct of the
National Prosecuting Authority
which was framed by the NDPP in
terms of section 22(6)(a) of
the NPA Act and which is binding on
all members of the Prosecuting
Authority. It provides that
46
‘prosecutors should be
individuals of integrity whose
conduct should be honest and
sincere who should
respect, protect and uphold
justice, human dignity and
fundamental rights as
entrenched in the Constitution…
strive to be and be seen to be
consistent, independent
and impartial…’
The NDPP as a reviewing
authority
104. It is important to note
that there is a constitutional imperative
to carry out the prosecution
policy and directives as the
constitution uses the
peremptory ‘must’ in stipulating those
duties of the prosecution
authority. The constitution and the NPA
Act, read with the prosecution
policy and directives posit a model
of criminal justice with a
National Director at the apex who is
independent, fair, consistent
and absolutely free of political
influence. In fact to try to
influence him is a criminal offence.
Everywhere in the
constitution, the NPA Act, the prosecution
policy and directives and the
Code of conduct are references to
independence of prosecutors
and their duty to act without fear or
favour.
105. As the head of the
prosecuting authority the NDPP must
insure that all prosecutors
follow the Constitution, the Act, and
the other instruments. His
powers to review or reconsider a
decision to prosecute or not
to prosecute a person must be made
47
in the light of these
principles. His constitutional imperative to
review decisions to prosecute
or not to prosecute is a unique role
ascribed to him and allows him
to exercise this discretion.
106. The concept of a review
or reconsideration assumes a role
somewhat elevated to and
distant from the person whose
decision is being reviewed. It
also assumes an unbiased, open
and honest reappraisal of the
decision to prosecute. It is not to be
lightly entertained and is a
constitutional imperative directed at
affording an accused the right
to the reconsideration of a
prosecution based on an
acknowledgement of the
embarrassment, dislocation,
disruption and trauma that the mere
bringing of a prosecution can
entail. The effect of the arguments
raised by the respondent is
that the applicant is not entitled to
enjoy this privilege, which is
extended to others who by no
stretch of the imagination can
be regarded as necessarily more
worthy.
107. In this regard I do not
consider this application as a satellite or
ancillary proceeding and I
would distinguish it from the cases,
both South African and
foreign, cited by Mr Trengove, illustrating
the very understandable
reluctance of courts to consider matters
which should more properly be
ventilated in the trial proper. See
48
R v DPP, ex parte Kebeline and
Others [2000] 2 AC 326 (HL),
Sharma v Brown-Antoine and
Others [2007] 1 WLR 780 (PC). In
none of those cases was there
a provision which is the equivalent
of section 179(5)(d).
108. The NDPP is the only
member of the prosecuting authority
who has such a constitutional
and statutory obligation to review
and any findings I make are
restricted to this very narrow issue.
109. When the NDPP reviews a
decision he will exercise this very
important obligation in the
light of the prosecution policy and
directives and other
considerations. On various occasions
prosecutors have declined to
prosecute because of the old or
young age of the offender, the
triviality of the offence, and the
personal tragic consequences
to the offender of his offence,
where his crime touches those
near and dear to him.
110. The NPA Act contemplates
a number of prosecution scenarios
which need to be considered in
turn. The first scenario envisages
that the NDPP or any Deputy
NDPP, designated by him, has the
power to institute and conduct
a prosecution in any court in the
Republic in person in
terms of section 22(9) of the NPA Act. In
other words the NDPP can
handle the whole case himself and
49
appear personally in court and
conduct the prosecution. Nowhere
in the papers does it appear
that this is such a case.
111. The second scenario
posits a prosecution by the DPPs, the old
attorneys-general in their
area of jurisdiction, in terms of section
24 of the NPA Act. Counsel
were in agreement that the words
‘after consultation with the
relevant DPP’ in the Constitution
would mean that a review of
one of their decisions by the NDPP
would definitely require him
to take representations from the
accused, the present
applicant. At the time of the writing of
section 179(5)(d) there was no
DSO and the occasions when the
NDPP prosecuted in person
would have been rare, if they ever
occurred at all. Even today
the manifold duties envisaged by the
Constitution and the NPA Act
would preclude him ever appearing
in person.
112. It follows, therefore,
that at the time of the promulgation of
relevant sub-section of the
Constitution and, indeed the NPA Act,
all prosecutions would have
been conducted by the DPPs in their
geographic regions or their
duly authorized prosecutors in the
High and Magistrates Courts.
This is abundantly clear and is
supported by the affidavit of
Mr Hofmeyr for the respondent,
where he explains that the
agreement reached at the
50
Constitutional Committee of 4
April 1996 that drafted the
legislation was to that
effect. The agreement read in part
‘Mr Schutte reported that
political parties had reached
the following agreements
regarding the Attorney-
General:
i There would be one
prosecutorial authority: consisting
of the national
attorney-general and other attorneysgeneral;
ii The attorneys-general would
in principle be
responsible for prosecutions,
with the national attorneygeneral
being responsible for laying
down policy
guidelines and ordering in
specific cases a prosecution
where the guidelines have not
been met, or where an
attorney-general has not met
the guidelines and has
refused to prosecute…’
113. So at the time of its
enactment the sub-section in question
would have availed every
accused provided the NDPP decided to
review a decision to prosecute
as they would have all emanated
from the DPPs. Excluded would
have been the rare occasions he
appeared in person.
114. Since the establishment
of the DSO, what was the effect of that
on the right of an accused to
make representations, when the
NDPP decided to review a
decision to prosecute? The DSO has
the power to prosecute and
institute criminal proceedings in
terms of section 7 of the NPA
Act and it seems clear that the
prosecution of Mr Shaik and
the applicant was carried out by
51
them. The present indictment
against the applicant is signed by
Aubrey Thanda Mngwengwe and he
describes himself as an
Investigating Director of the
DSO.
115. Section 7(3) of the NPA
Act provides that the head of the
Directorate of Special
Operations shall be a Deputy National
Director assigned by the
National Director. In terms of section
13(1)(aA) the president, after
consultation with the Minister and
National Director, may appoint
one or more Directors of Public
Prosecutions to the DSO. These
would be properly qualified
advocates, as the legislation
prescribes, and similar to the A-Gs
of the old days. The effect of
this would be that there would be
DPPs, who were head of the
prosecution authority, in the
provinces i.e. the old A-Gs,
and the DPPs in the DSO.
116. The investigation into
the applicant was ‘carried out by the
DSO’ as Mr Ngcuka said at his
press conference. The decision
was made by the NDPP and Mr
McCarthy, who was a Deputy
National Director of
Prosecutions and head of the DSO. This is
not denied by the respondent
in his answering affidavits. In fact
the respondent puts up an
affidavit by McCarthy in which he says
‘Ngcuka and I did not accept
the investigation team’s
recommendation…’
52
117. The NDPP and McCarthy
overruled the decision of the
investigation team, which was
headed in all probability by a DPP.
Senior Special Investigator du
Plooy says in the answering
affidavit he was ‘duly
designated by the Investigating Director to
conduct the investigation…’
Such would be an Investigating DPP.
If the NDPP was to properly
exercise his review powers with
regard to DPPs it necessarily
implies that he did not make the
decision as such to prosecute
as this would nullify his
independence with regard to
the review. Although he clearly did
make the decisions in
conjunction with McCarthy and probably a
DPP that fact alone should, in
my judgment, not have disentitled
an accused to make
representations.
118. The DSO as a juristic
entity had not come into being and
naturally there is no mention
of it in 179(5)(d). Should the
Constitution be read so as to
include the DSO (which does have
DPPs) when it mentions
consultation with the relevant DPPs?
Section 39 of the Constitution
119. Section 39 of the
Constitution deals with the interpretation of
legislation including the Bill
of Rights. It provides as follows:
53
‘39(1) When interpreting the
Bill of Rights, a court, tribunal or
forum—
(a) must promote the values
that underlie an open and
democratic society based on
human dignity, equality
and freedom;
(b) must consider
international law; and
(c) may consider foreign law.
(2) When interpreting any
legislation, and when developing
the common law or customary
law, every court, tribunal or
forum must promote the spirit,
purport and objects of the Bill
of Rights.
(3) …’
120. If it is clear that when
interpreting the Bill of Rights, a court
must promote the values that
underlie an open and democratic
society that is based on human
dignity, equality and freedom. The
provision of the right to make
representations to an accused
would pay appropriate tribute
to his right to human dignity, given
the opprobrium that is
normally attendant upon a criminal trial. It
would be grossly unequal to
allow representations to an accused
on the happenstance that his
case emanated from a decision by a
DPP and not the Deputy
National Director, who was head of the
DSO. It might well have gone
through the hands of a DPP (the
advocate with legal knowledge)
in the DSO. I have mentioned that
the head of the investigation
team was probably a DPP and
54
therefore the decision to
prosecute involved consultation with
him. We know from the press
articles annexed that Mr Mpshe was
consulting with his
investigation team (headed by a DPP) before
instituting a prosecution in
the second half of 2007. I therefore
conclude that he should have
consulted with the applicant as
well.
121. As I have mentioned
sub-section (2) provides that when
interpreting any legislation,
which must include the Constitution
itself, otherwise it would be
self contradictory, every court must
promote the spirit, purport
and objects of the Bill of Rights. These
rights include the very values
that I have mentioned of human
dignity, equality and freedom.
The proper exercise of the NDPP’s
review may in a proper case
result in an accused’s freedom in the
sense that if he decides to
decline to prosecute, the accused does
not stand in jeopardy of
conviction and incarceration.
122. A consideration of the
jurisprudence of the Constitutional
Court, with regard to
interpreting legislation, would seem to
fortify me in this view. In
Investigating Directorate: Serious
Economic Offences and Others v
Hyundai Motor Distributors
2001
(1) SA 545 (CC) the Court held
at paras [21]-[24] that:
55
'All law-making authority must
be exercised in
accordance with the
Constitution. The Constitution is
located in a history which
involves a transition from a
society based on division,
injustice and exclusion from
the democratic process to one
which respects the
dignity of all citizens, and
includes all in the process of
governance. As such, the
process of interpreting the
Constitution must recognise
the context in which we
find ourselves and the
Constitution's goal of a society
based on democratic values,
social justice and
fundamental human rights… The
Constitution requires
that judicial officers read
legislation, where possible, in
ways which give effect to its
fundamental values.
Consistently with this, when
the constitutionality of
legislation is in issue, they
are under a duty to examine
the objects and purport of an
Act and to read the
provisions of the legislation,
so far as is possible, in
conformity with the
Constitution…
Accordingly, judicial officers
must prefer interpretations
of legislation that fall
within constitutional bounds over
those that do not, provided
that such an interpretation
can be reasonably ascribed to
the section…’
Reading in and reading out
123. It must be recalled that
section 179(5)(d) speaks of the right
the NDPP has to review
decisions and then there is a comma
followed by a number of
sub-clauses. The sub-clauses conclude
with the right of the NDPP to
consult with any other person or
party whom the NDPP considers
to be relevant. Clearly the widest
possible powers are given to
the NDPP when he embarks on his
review. It would seem to me to
do no injustice to language to
include the head of the DSO
who is a Deputy NDPP.
56
124. As I have indicated when
section 179 of the Constitution was
fashioned all prosecutions
flowed through the DPPs (except the
rare occasions – if ever -
when the NDPP personally prosecuted)
and therefore every time the
NDPP reviewed a decision he would
have had to hear
representations from the accused. With the
advent of the DSO in 2000 no
amendment was made to the NPA
Act or the Constitution to
include prosecutions that have their
genesis there. In dealing with
the present state of the NPA Act it
is necessary to embark on the
process of interpretation known as
reading in.
125. The South African courts
first accepted the notion of reading
in as an acceptable
constitutional remedy in
National Coalition
of
for Gay and Lesbian Equality
and Others v Minister of Home
Affairs and Others
2000
(2) SA 1 (CC). In that case the court set
out the following
considerations inter alia for embarking
on the
process of reading in. I am
paraphrasing paragraphs [73] – [76] of
the judgment. The court held
that the resulting provision once
the words have been read in,
must be consistent with the
constitution. The resulting
provision must interfere as little as
possible with the laws adopted
by the legislature and the court
must be able to, in reading in
the words, define with sufficient
57
precision how the statute
ought to be extended to comply with
the constitution. I believe
that to read into the legislation in
question (the NPA Act) in such
a manner as to extend the group
that presently appears to be
limited to DPPs, to include the NDPP
himself and Deputy NDPPs,
would be eminently consistent with
the constitution and would
define with sufficient precision the
group involved.
126. All these circumstances
incline me to the view that a proper
interpretation of the
sub-section in question means that the NDPP
ought to have taken
representations from the applicant before
deciding to prosecute him. The
failure to do so means that what
he did was not a decision in
terms of section 179(5)(d) and it was
not therefore prohibited from
scrutiny and review by the court in
terms of PAJA.
The NDPP offer to hear
representations
127. The denial of the right
to make representation was attacked on
another basis and although
made in a slightly different context I
am inclined to determine that
point as well on the basis of the
decision of the Constitutional
Court in the case of
S v Jordan and
others (Sex Workers Education
and Advocacy Task Force and
others as Amici Curiae)
2002(6) SA 642 (CC) at para 21.
58
128. Mr Kemp on behalf of the
applicant has argued that the NDPP,
in the person of Mr Ngcuka,
extended an invitation to the
applicant, alternatively
the world at large, to make
representations
on the matter of the
prosecution in the matter of Mr Shaik, his
entities and the applicant.
Mention has been made of the Press
statement made on 23 August
2003 and such contains the
following paragraph:
‘25. We have never asked for
nor sought mediation. We do not
need mediation and we do not
mediate in matters of this
nature.
However, we have no
objection to people making
representations to us, be it
in respect of prosecutions or
investigations. In terms of
section 22(4)(c) of the Act, we are
duty bound to consider
representations.’ (Emphasis added).
129. What value does the court
place on the NDPP’s statement that
he had no objection to people
making representations to him, be
it in respect of prosecutions
or investigations? The statement
was prefaced with the mention
of mediation and it could only
have referred to a possible
mediation with the applicant and his
legal representatives. The
NDPP undertook to consider
representations. The simple
corollary of this was that he had no
objection to their receipt.
But he went further and said that in
terms of section 22(4)(c) of
the NPA Act, he was duty bound to
consider the representations.
Again that seemed to be a promise
and pledge to consider the
representations.
59
130. Section 22(4)(c) provides
that in addition to any other powers,
duties and functions conferred
or imposed on or assigned to the
National Director by section
179 or any other provision of the
Constitution, this Act or any
other law, the National Director, as
the head of the prosecuting
authority, may consider such
recommendations, suggestions
and requests concerning the
prosecuting authority as he or
she may receive from any source.
131. The NDPP said he was duty
bound to accept such
representations as were
tendered in terms of that section. The
simple meaning was that it was
a solemn undertaking to consider
them when they came from any
source. As far as I understand the
position that offer was never
retracted or withdrawn by Mr
Ngcuka or any of his
successors.
132. The applicant’s attorneys
wrote a letter to the NDPP dated 11
October 2007 requesting an
opportunity to make prior
representations in respect of
any decision to charge him. The
letter is annexed and reads in
part as follows:
‘The recent developments in
the NPA inter alia;
1. The suspension of the
National Director of Public
Prosecutions;
60
2. The meeting of the
Directorate of Special
Operations of 25 June 2007;
3. The appointment of an
acting National Director of
Public Prosecutions
has not gone unnoticed.
Further, it has been reported
that your office is intent on
engaging in a review of
certain cases of which the case
against Mr Zuma constitutes
one such case.
Through the proceedings and
the documentation filed of
record between Mr Zuma and the
NDPP it is abundantly
clear that certain allegations
have been made about the
manner in which both the
investigation and the
prosecution have occurred.
Accordingly may we request
that in the conduct of such
a review, that we be afforded
an opportunity to make
representations either orally
or in writing which may
better inform the decision
which we understand you are
applying your mind to.’
133. The suspension mentioned
in the letter refers to the
suspension of Mr Pikoli by the
President and the appointment of
an acting National Director,
Mr Mpshe. The allegations that were
made clearly related to the
charge from the applicant that his case
was being politically driven.
The response by Mr Mpshe given the
next day was very laconic and
reads as follows:
‘The J.G. Zuma matter is not a
subject of a review. This
matter is undergoing further
investigations the normal
route for a decision to be
taken. It is still being dealt with
by the DSO.’
61
134. It could be argued that
this is not a refusal to hear his
representations but it was
hardly a positive response. If the
applicant’s matter was not
subject to a review then there would
be no need for the NDPP to
hear representations. The only
implication is that it was a
refusal to consider any
representations. It is not
clear that the applicant was following up
on the offer, made by Mr
Ngcuka, at the press conference I have
mentioned. Even if he was
unaware of such offer it does not seem
to matter, as long as the
offer remained open.
135. Mention is made in the
letter of the review of certain cases and
this is clarified as follows
by the applicant, who states that during
2007 the NPA reviewed various
cases, including that of
Commissioner J Selebi. Certain
newspaper reports are annexed.
Following Mr Pikoli’s
suspension Mr Mpshe was appointed acting
NDPP and he applied to have
certain warrants directed at Mr
Selebi set aside.
136. Applicant says ‘My case
was one of those reported to be under
review. It would be odd and
constitute unequal and discriminatory
treatment if my case was not
reviewed and no representations
were called for.’
62
137. The newspaper article in
question states
‘The NDPP will decide soon
whether to proceed with
charging two of the country’s
most powerful figures
ANC presidential frontrunner
Jacob Zuma and police
commissioner Jackie Selebi.
The NPA said yesterday
that Mokotedi Mpshe was
‘deliberating’ the way forward
in both cases… NPA spokesman
Tlali Tlali said Mpshe
had met the team investigating
Zuma and was presented
with a ‘final briefing’ on the
continuing probe into
allegations of corruption.
This could herald the
beginning of the end of a
seven-year investigation into
Zuma who has emerged as the
runaway candidate for
the presidency of the ANC…
Tlali said prosecutions
boss Mpshe would carefully
consider all the information
presented to him by the
investigating team before
making a decision…
Mpshe is also applying his
mind to the matter involving
Selebi. Tlali said the panel
appointed to review the
charges against Selebi had
also submitted a report to
Mpshe yesterday. ’
138. Mr Mpshe, as I have
indicated, denies that the case of the
applicant was under review. Be
that as it may, the question which
remains was whether he was
obliged to give the applicant the
chance to make
representations, arising out of the promise of
the
predecessor, at the press
conference or out of the request made
by the applicant’s lawyers.
139. It is difficult to
evaluate the real significance of the offer
made
by Mr Ngcuka and the letter
requesting the chance to make
representations, sent four
years later, without considering the
63
events that took place in
between. The applicant suggests the
delay was all part of the
political machinations of the NDPP, who
denies it most vehemently. The
applicant also suggests that the
refusal to hear his
representations was as a result of the
political
meddling, which had bedeviled
his prosecution from the outset.
The respondent wishes to
strike these allegations from the
record. In other words, the
applicant’s contentions are that the
independence of the NDPP was
compromised and that this
affected not only the initial
decision, but also the later ones. For
this reason it was all the
more important for him to make
representations, concerning
his prosecution.
140. It is also necessary to
look at these happenings to understand
why certain key events took
place. The first relates to the reasons
for the decision not to
prosecute the applicant in the first place.
Secondly it must be borne in
mind that in the mean time Mr Pikoli
was suspended and Mr Mpshe was
now saddled with the
responsibility of deciding
whether to hear representations
promised by his second to last
predecessor.
Legitimate expectation
64
141. The court has to consider
whether the statement made by the
NDPP at the press conference
gave the applicant the legitimate
expectation of making
representations before the decision was
reversed. In
President of
the Republic of South Africa v SARFU
2000 (1) SA 1 (CC) at page 94
paragraph [212] the full court dealt
with the doctrine of
legitimate expectation and approved the
judgment in
Administrator,
Transvaal and others v Traub and
others
1989 (4) SA 731
(AD). In the last-mentioned case the court
dealt with legitimate
expectation at 755 et seq and said the
following inter alia (I
omit the footnotes and case references):
‘[L]egitimate expectations…
are capable of including
expectations which go beyond
enforceable legal rights,
provided they have some
reasonable basis…[E]ven
where a person claiming some
benefit or privilege has
no legal right to it, as a
matter of private law, he may
have a legitimate expectation
of receiving the benefit or
privilege, and, if so, the
Courts will protect his
expectation by judicial review
as a matter of public
law.... Legitimate, or
reasonable, expectation may arise
either from an express promise
given on behalf of a
public authority or from the
existence of a regular
practice which the claimant
can reasonably expect to
continue....
The particular manifestation
of the duty to act fairly
which is presently involved is
that part of the recent
evolution of our
administrative law which may enable an
aggrieved party to evoke
judicial review if he can show
that he had "a reasonable
expectation" of some
occurrence or action preceding
the decision complained
of and that that "reasonable
expectation" was not in the
event fulfilled.'
As the cases show, the
principle is closely connected
with "a right to be heard".
Such an expectation may take
65
many forms. One may be an
expectation of prior
consultation. Another may be
an expectation of being
allowed time to make
representations....'
142. Did a legitimate, or
reasonable, expectation arise in this matter
either from an express
promise, given on behalf of a public
authority or from the
existence of a regular practice which the
claimant can reasonably expect
to continue?
143. It might be argued that
this was a vague and general invitation
to the public at large to make
representations on any matter. The
words ‘any source’ are of the
widest import and are not confined
in any respect. They must
include the applicant, if given their
widest interpretation. If
given a narrow interpretation they would
seem to be directed at the
applicant and his lawyers. Mention was
made to mediation in the same
paragraph which could only have
referred to the applicant.
Secondly, the paragraph that precedes
this one says the following:
’24. We did not leak the
questions put to the Deputy President
to anyone else. Only two
people in the entire organizations
had the questions, the
National Director and one of his
deputies. The questions were
given to the lawyers of the
Deputy President. They would
know best.’
144. The offer to allow
representations could not apply to Mr Shaik
and his corporate entities, as
a decision had been already made
66
to prosecute them. As a
consequence of this the applicant is the
obvious person to whom they
are addressed.
145. Was this a serious offer
by the NDPP or an off- the- cuff
expression of goodwill to a
man that had been within a hair’s
breadth of being prosecuted
himself? I get the impression that
the applicant was not entirely
off the hook so to speak and that
investigations into him would
continue once the NDPP had
assessed how the prosecution
against Mr Shaik proceeded.
Portions of affidavits by Mr
McCarthy the head of the DSO are put
up to indicate that during or
after the press conference Mr Ngcuka
gave no promise that the
applicant would never be prosecuted –
in fact he said he might well
be.
146. When he made the offer to
hear representations Mr Ngcuka
explained how exhaustive the
two year investigation was and said
the following:
’27. Evidence was obtained
through searches and seizures
that were conducted in Durban,
France and Mauritius.
Documentation was obtained
from various entities, including
118 bank accounts relating to
numerous entities and
individuals. A vast number of
witnesses from across the
business and private spectrum
were interviewed, consulted
and questioned over the
period.’
67
147. Mr Ngcuka informed the
press that all these endeavours
persuaded the investigation
team to recommend a prosecution
against the applicant. He then
stated:
’32. After careful
consideration in which we looked at
the evidence and the facts
dispassionately, we have
concluded that, whilst there
is a prima facie case of
corruption against the Deputy
President, our prospects
of success are not strong
enough. That means that we
are not sure if we have a
winnable case.’
148. The normal test for the
institution of a prosecution is set out in
Du Toit et al
in
Commentary on the Criminal Procedure Act
at
page 1-4M as follows:
‘A prosecutor has a duty to
prosecute if there is a
prima
facie
case and if there is
no compelling reason for a
refusal to prosecute. In this
context ‘prima facie case’
would mean the following: The
allegations, as supported
by statements and real and
documentary evidence
available to the prosecution,
are of such a nature that if
proved in a court of law by
the prosecution on the basis
of admissible evidence, the
court should convict.
Sometimes it is asked: Are
there reasonable prospects
of success? The prosecution,
it has been held, does not
have to ascertain whether
there is a defence, but
whether there is a reasonable
and probable cause for
prosecution – see generally
Beckenstrater v Rottcher
and Theunissen
1955(1) SA
129 (AD) at 137 and S v
Lubaxa
2001 (2) SACR 703 (SCA).’
149. In other words Mr Ngcuka
was saying that he had what would
normally be sufficient to
prosecute the applicant and yet he
68
declined to so. This decision
was most strange for other
important reasons connected to
the nature of the offences.
Bribery, as a common law
offence, or in its statutory form, under
the Corruption laws, is a
bilateral offence. It cannot be committed
by a person alone. In the
papers reference is made to an affidavit
in prior proceedings by Mr
Ngcuka in which he says
‘At the time when I prepared
my announcement, I was in
possession of a draft
indictment against, inter alios,
Schabir Shaik. In this
indictment, reference was of
necessity made to his
relationship with [Mr Zuma] and
the bribe agreement with
Thetard. This indictment
spelled out, far more
eloquently than my statement,
what was clearly a prima facie
case of corruption
against [Mr Zuma].’
150. Given that a decision was
made to prosecute Mr Shaik and his
corporate entities, the
decision not to prosecute the applicant,
when there was a prima
facie case and bribery is a bilateral
crime,
was bizarre to say the least.
It was a total negation of the
Constitutional imperatives
imposed on the NDPP to prosecute
without fear and favour,
independently and in consistent, honest
and fair fashion. I have
already made reference to the
Constitution, the NPA Act and
the prosecution policy, directives
and code of conduct in this
regard.
69
151. The question of public
policy could never have come into
question, nor was it given as
a reason. As the prosecution policy
points out, the circumstances
of the offender can be taken into
account, but if the person
implicated occupied the second to
most senior position in
government, as Deputy President, that
was hardly a reason to decline
to prosecute. I have already
mentioned the powerful words
of the Constitutional Court
concerning corruption and how
it can destroy a country. Squires
J in S v Shaik and others
2007(1) SACR 12 said at page 239:
‘I do not think I am
overstating anything when I say
that this phenomenon can truly
be likened to a cancer,
eating away remorselessly at
the fabric of corporate
probity and extending its
baleful effect into all aspects
of administrative functions,
whether State official or
private-sector manager. If it
is not checked, it
becomes systemic and the
after-effects of systemic
corruption can quite readily
extend to the corrosion of
any confidence in the
integrity of anyone who has a
duty to discharge, especially
a duty to discharge to the
public, leading eventually,
and unavoidably, to a
disaffected populace.’
152. See also S v Shaik and
others 2007(1) SACR 247 and 319
(SCA) where bribery was called
an ugly offence and insidious
because it is difficult to
detect and more difficult to eradicate.
153. The more senior the
status of a person in the government
hierarchy the more seriously
the courts regard his corruption. In
S v Van der Westhuizen
1974(4) SA 60 (C) at 63 G-H the court said
70
that ‘the nature of the office
held by a person who takes a bribe
can have a bearing on the
sentence. If he holds a high office, this
fact may be regarded as an
aggravating circumstance.’
154. The legitimate quest for
the bigger fish in the world of crime
was eloquently expressed in
Mohunram v National Director of
Public Prosecutions and
Another 2007(4) SA 222 (CC) at para
[155] where Sachs J in the
Constitutional Court said, in the
context of the forfeiture of
assets, involved in organised crime,
that
‘If the (Asset Forfeiture
Unit) is to accomplish the
important functions attributed
to it, it should not unduly
disperse the resources it has
at its command. Its
manifest function as defined
by statute is to serve as a
strongly empowered law
enforcement agency going
after powerful crooks and
their multitude of covert or
overt subalterns. The danger
exists that if the AFU
spreads its net too widely so
as to catch the small fry, it
will make it easier for the
big fish and their surrounding
shoal of predators to elude
the law. This would frustrate
rather than further the
objectives of the [Prevention of
Organised Crime Act]."
155. If there was a prima
facie case of serious corruption against
the Deputy President there
were, in my view, no reasons of public
policy why he should not have
been prosecuted simultaneously
with Shaik. Its failure to do
so brought justice into disrepute. The
NDPP should either have
charged the applicant or made no
71
mention of a prima facie
case of corruption. The applicant is
effectively complaining that
he was found guilty (at the Shaik trial)
in absentia: Shaik was
convicted but the applicant was dismissed
as Deputy President. He puts
up the speech by the President in
which he says:
‘As Honourable Members would
know, the judgment
contains detailed matters of
fact and inference against
which penalties have been
meted out. At the same time,
proceedings pertaining to a
possible appeal to higher
courts are still pending.
However, the judgment contains
some categorical outcomes.
These are that the court has
made findings against the
accused and at the same time
pronounced on how these
matters relate to our Deputy
president, the Hon Jacob
Zuma, raising questions of
conduct that would be
inconsistent with expectations
that attend those who
hold public office.’
156. The applicant complains
of the legality of such a procedure.
He says the following
‘Shortly before the 20th (on
or about Sunday, 6 June
2005), I was requested by the
President of the RSA,
through others, to resign in
the light of the Shaik
judgment. The request at that
time was hard to justify on
any legal basis.’
157. In the ordinary course of
events, if one was relying on a
judgment of a court, one could
not say that the findings of fact
72
and law were correct, until a
final court of appeal had decided
them. Secondly, a judgment in
a criminal case against one party
is not evidence against
persons, who were not parties to the
proceedings. In other words
the fact of the conviction of Mr Shaik
and his corporate entities was
not evidence against the applicant.
In R v Lee 1952 2 SA 67
(T) the court held as follows:
‘Now a judgment in personam,
whether given in civil or
in criminal proceedings,
though it is evidence of the fact
that the judgment was given,
is not evidence, against
persons who are not parties to
the proceedings, of the
truth or correctness of the
judgment… Judgments inter
partes, or, as they are
sometimes called, judgments
in
personam, are not…
admissible for or against
strangers in proof of the
facts adjudicated. They are not
admissible against them
because it is an obvious
principle of justice that no
man ought to be bound by
proceedings to which he was a
stranger, and over the
conduct of which he could
therefore have exercised no
control…’
158. At common law, had the
applicant been an ordinary employee
and not Deputy President or a
cabinet minister, it would have
been illegal for the President
to have taken into account the
judgment of Mr Shaik in
dismissing the applicant. According to
section 90(2) of the
Constitution, however, the president appoints
the deputy president and
Cabinet ministers, assigns their powers
and functions, and may dismiss
them. Even though the
President’s decision was
unfair and unjust, given the fact that the
applicant was not given a
chance to defend himself in a court of
73
law, it was not an illegal act
given his power to hire and fire his
Deputy or cabinet ministers,
at his will.
159. Immediately after his
dismissal the applicant was charged, as I
have indicated, with mirror
images of the charges against Mr
Shaik, more especially those
in counts 1 and 3. The applicant
complains that this was all
part of a political strategy, because of
the rivalry between himself
and the President for the position of
President of the ANC, to be
decided at Polokwane in December
2007. He maintains that this
strategy involved stigmatizing him as
being prima facie
corrupt and charging Mr Shaik, without ever
letting him defend himself,
and then dismissing him. This was
one of the allegations that
the respondent sought to strike out. It
is also a matter of common
knowledge that the applicant was
replaced by Mrs Phumzile
Mlambo-Ngcuka as Deputy President.
160. These allegations are a
modern echo of what the French
Cardinal Richelieu, Chief
Minister of Louis Xlll, once said in the
seventeenth century when he
observed that in matters of state the
weakest are always wrong.
Others have inclined to the same view.
The great Greek historian
Thucydides in the fifth century BC wrote
that the question of justice
only enters where the pressure of
necessity is equal. He was
cynical enough to aver that the powerful
74
exact what they can, and the
weak grant what they must. Fortunately
with the advent of the rule of
law matters are now quite different. The
courts are there to make sure
that power and wealth are not deciding
factors in the courts.
161. The Canadian Supreme
Court has described the judicial
function as ‘absolutely
unique’ with the consequence that ‘The judge
is in “a place apart” in our
society and must conform to the demands
of this exceptional status’.
See Therrien (Re), 2001 SCC 35 (CanLII)
([2001] 2 S.C.R. 3 • (2001),
200 D.L.R. (4th) 1) at para 108 -112. When
the public forfeited their
right to resort to arms they placed the
resolution of their disputes
in the hands of judges and agreed to
abide by their decisions.
There came into being a secular priesthood
that should remain apart from
the taint of politics.
162. In the decision of Lord
Atkin in Liversidge v Anderson [1942]
AC 206 the duties of judges
were emphasized. Given the genesis
of the applicant’s charges
there is some irony in his mention of
the ‘clash of arms’ in the
passage in question, but it must be
borne in mind that the
judgment was given during the worst days
of World War 2. Lord Atkin
said:
‘In this country, amid the
clash of arms, the laws are not
silent. They may be changed
but they speak the same
language in war as in peace.
It has always been one of
75
the pillars of freedom, one of
the principles of liberty for
which on recent authority we
are now fighting, that the
judges are no respecters of
persons and stand between
the subject and any attempted
encroachments on his
liberty by the executive,
alert to see that any coercive
action is justified in law.’
163. In order to understand
the background of the decision; firstly,
not to charge the applicant
and, thereafter, to charge him, it is
necessary to understand the
background and reasoning process.
It is also necessary to try
and explore the reasons for these
decisions to evaluate his
right to make representations. I have
indicated that the cases show
that he must be given the gist of
the reasons for the change of
mind, otherwise his right to make
representations will be
illusory. Finally, of course, it is necessary
to decide whether the
allegations of political meddling are
scandalous, vexatious and
irrelevant as alleged in the strike out
applications.
164. I have mentioned that the
independence of the NPA and the
prohibition on executive
interference has been asserted by the
Constitutional Court in the
Certification case. It will be recalled
that the court held that any
executive action inconsistent with
prosecutorial independence
would be subject to constitutional
control by the Courts. This
court must carry out that function, not
only in the interests of the
present applicant, but also on behalf of
76
all the people of South
Africa, who have a very legitimate interest
in this fundamental principle.
165. In the Certification case
the Constitutional Court referred to
the decision of
Ex parte
Attorney-General, Namibia : In re The
Constitutional Relationship
between the Attorney-General and the
Prosecutor-General
1995(8)
BCLR 1070 (Nms). In the last
mentioned case Leon AJA quotes
with approval the remarks of
Ayoola J at a key note address
when opening the First
Conference of Commonwealth
Directors of Public Prosecutions
as follows at pages 1085 - 6 :
‘The manner in which such
discretion (to prosecute or
not) is exercised and the
process of prosecutorial
decision-making are central to
the criminal justice
system. If prosecutorial
decisions are to lead to public
confidence in the system and
are to be consistent with
human rights norms they must
also not only be just but
also be seen to be so. The
mechanism for arriving at
such decisions must itself be
seen to be such as can be
conducive to fairness.’
166. Leon AJA went on to quote
the following passage with
approval at page 1086 :
‘Experience in many parts of
Africa has shown that
arbitrary and oppressive use
of prosecutorial powers
have often been potent weapons
of fostering political
ends to the detriment and
ultimate destruction of
democracy. On the other hand,
experience, such as that
77
of Gambia, has also shown that
where there is no abuse
of prosecutorial powers public
confidence in the
criminal justice system is
maintained.’
167. Whether the NDPP was
influenced by the executive is not
easy for the applicant to
prove as that sort of knowledge would
obviously lie with the NDPP.
He would not, obviously, be privy to
the oral or written
instructions that the executive may have given
to the prosecuting authority.
The NDPP denies it most
emphatically and says at all
times the decision, not to prosecute
the applicant, and, thereafter
to prosecute him were his alone. In
fact he stigmatizes the
allegations of political interference as
scandalous, vexatious and
irrelevant.
168. When a party has peculiar
knowledge of a fact he is not for
that reason saddled with the
burden of proving that fact: peculiar
knowledge affects the quantum
of evidence expected from the
party but does not affect the
incidence of the burden of proof. If
such party fails to adduce
evidence, in other words to transmit
his or her knowledge to the
court, the inference which is the least
favourable to the party’s
cause may be drawn from the proven
facts.
See Abrath v The North
Eastern Railway Co (1883) 11 QB 440;
Union Government v Sykes
1913 AD 156;
Molteno Bros v SA
Railways
1936 AD 321 333;
Naude v Tvl Boot & Shoe
78
Manufacturing Co
1938 AD
379 392; Durban City Council v SA
Board Mills Ltd
1961 3 SA
397 (A) 405A; Gericke v Sack 1978 1
SA 821 (A) 827E. The same rule
applies in criminal cases:
R v
Cohen
1933 TPD 128; Rex
v Hoffman 1941 OPD 65;
S v Theron
1968 4 SA 61 (T) 63; S v
Langeveldt 1969 1 SA 577 (T) 581H;
S v Witbooi
1971 4 SA 138
(NC) 140–141. See also
Galante v
Dickinson
1950 2 SA 460
(A) 465; Botes v Van Deventer 1966 3
SA 182 (A) 1888; Henry v
SANTAM Insurance Co Ltd 1971 1 SA
468 (C) 472–473.
169. The effect of all this is
that the Courts take cognizance of the
handicap under which a
litigant may labour where facts are within
the exclusive knowledge of his
opponent and they have in
consequence held, as was
pointed out by Innes JA in
Union
Government v Sykes
1913 AD
156 at page 173, that ‘less evidence
will suffice to establish a
prima facie case where the matter is
peculiarly within the
knowledge of the opposite party than would
under other circumstances be
required.’
170. The titanic political
struggle between the applicant and the
President is no concern of the
court unless it impacts on issues
to be decided in this
application. The rivalry of the applicant and
the President is hardly open
to question and the polarization of
the country into opposing
camps before and after Polokwane is
well known. The President of
this country is restricted to two
terms of office by operation
of the constitution and his campaign
to seek the leadership of the
ANC was hotly contested by the
applicant.
79
171. In LAWSA Second Edition
Vol 5(3) title Constitutional Law at
paragraph 221 the learned
author Professor George Devenish
describes the functions and
role of the President as follows.
‘The Constitution creates an
executive presidency, and
not merely a titular one as
prevailed under the 1961
Republican Constitution…The
president is elected by
Parliament from among its
members, but must vacate
his or her seat on assuming
office, thereby establishing
an extra-parliamentary
presidency. This allows the
incumbent to be free to a
certain extent from the
turbulent and unpredictable
nature of South African
party politics, as is
manifested in the robust party
political activity in the
National Assembly, although the
president remains the leader
of the victorious governing
political party. Such a
president is then able to fulfil a
unifying, reconciling and, if
necessary, mediating role in
the profoundly cleavaged
society that South Africa is,
with its potential for
conflict and violence.’
172. Had the President won the
election as party leader at
Polokwane he could still not
have been elected President of the
country, without a
constitutional amendment. The learned
professor refers to the
practice that the president of the majority
party is the president of the
country. The corollary of this is that if
the president of the party was
not president of the country that
unifying and reconciling role
in our profoundly cleavaged society
would not take place.
80
173. At its lowest then the
decision to stand as party leader was
controversial and not in
accordance with the Westminster system
we espouse in this country.
The applicant claims his woes are
attributable to his decision
to accept nomination of others and
stand for the position of head
of the party, as a rival to the
incumbent president. Clearly
the stakes were high and the
competition fierce.
174. We know that the decision
not to prosecute him was for
reasons totally antithetical
to the constitutional duties of the
NDPP to make consistent, fair
and honest decisions without fear
or favour and we are conscious
of the irrationality of charging the
briber and not the recipient
of bribes, but does this alone show
political conspiracy? One has
to examine the decision not to
prosecute the applicant to
ascertain whether it was made from
fear or favour and whether it
was consistent.
175. At first blush a decision
not to prosecute the Deputy President
of the country appears to be
as a favour to the second to highest
ranking politician in the
country. The applicant denies this and
puts quite a different slant
on the objective. He says it was all part
of a political agenda that had
as its objective the favouring of
President Mbeki in his quest
for a further term of office as ANC
81
President. Those are
allegations that the respondent seeks to
strike out of the record. Is
there any evidence of this? Mr Ngcuka
says that he and Minister
Maduna ‘informed the Deputy President
about this investigation
shortly after it started.’ That hardly
constitutes proof of any
interference.
176. It is important to
establish how extensive the political
interference, influence or
pressure has to be to be recognized by
the courts. In Sharma’s
case, mentioned above, the Privy Council
of the House of Lords in
England considered an appeal from the
West Indies. The appellant was
the Chief Justice of Trinidad and
Tobago and he was charged with
attempting to pervert the course
of justice by trying to
influence the decision of the Chief
Magistrate in a trial
involving Mr Basdeo Panday, the Leader of
the Opposition and a former
Prime Minister. Mr Panday was
charged with corruption and
the Chief Justice had three meetings
with the Chief Magistrate
during which he tried to influence the
decision in favour of Mr
Panday.
177. The prosecution
authorities investigated the removal of the
Chief Justice, in terms of
their constitution and the matter was
placed in the hands of the
Deputy Director of Public
Prosecutions. She brought a
prosecution against the chief justice
82
for perverting the course of
justice during his three meetings with
the Chief Magistrate, when he
spent time trying to secure a result
in favour Mr Panday. The Chief
Justice brought an application to
review the decision to
prosecute him and sought an order staying
all action consequential on
that decision to prosecute. In other
words he was asking the court
to declare the indictment invalid.
Had the Chief Justice been
successful with his application, the
indictment would have been set
aside and no further charges
could be brought until the
prosecuting authority had been purged
of the malign political
influence.
178. The Chief Justice in that
matter alleged that there was
improper,
politically-motivated interference in the
prosecution
process against him i.e. the
Chief Justice, by the Prime Minister
and the Attorney-General and
the others, including the Deputy
Director who brought the
prosecution.
179. The Privy Council gave
two separate judgments the main
judgment being by Lord Bingham
of Cornhill and Lord Walker of
Gestingthorpe, who said the
following at page 786 et seq:
‘The rule of law requires
that, subject to any immunity
and exemption provided by law,
the criminal law of the
land should apply to all
alike. A person is not to be
singled out for adverse
treatment because he or she
83
holds a high and dignified
office of state, but nor can the
holding of such an office
excuse conduct, which would
lead to the prosecution of one
not holding such an
office. The maintenance of
public confidence in the
administration of justice
requires that it be, and be seen
to be, even-handed.
It is the duty of police
officers and prosecutors engaged
in the investigation of
alleged offences and the initiation
of prosecutions to exercise an
independent, objective,
professional judgment on the
facts of each case. It not
infrequently happens that
there is strong political and
public feeling that a
particular suspect or class of
suspect should be prosecuted
and convicted… This is
inevitable, and not in itself
harmful so long as those
professionally charged with
the investigation of
offences and the institution
of prosecution do not allow
their awareness of political
and public opinion to sway
their professional judgment.
It is a grave violation of
their professional and legal
duty to allow their judgment
to be swayed by extraneous
considerations such as
political pressure.’
180. I would say that in South
Africa it goes far beyond being a
‘grave violation of their
professional and legal duty [for
prosecutors] to allow their
judgment to be swayed by extraneous
considerations such as
political pressure’ as it is a very serious
criminal offence for which the
legislature has put a maximum
sentence of 10 years
imprisonment for any breach.
181. The other Lords of the
Privy Council did not differ on this point
and Baroness Hale of Richmond,
Lord Carwell and Lord Mance
approved a previous decision
of the Court of Appeal. That
decision was to the effect
that the court has power to interfere
84
with a prosecution, because
the judiciary accepts responsibility
for the rule of law. As such
it embraces a willingness to oversee
executive action and to refuse
to countenance behaviour that
threatens either basic human
rights or the rule of law. (At page
794 G-H). These very same
principles are, of course, core values
of our own constitution. The
learned Lords then said at page 795
A-B:
‘In our opinion, the same
responsibility extends to the
oversight of executive action
in the form of a police or
other prosecutorial decision
to prosecute. The power to
stay for abuse of process can
and should be understood
widely enough to embrace an
application challenging a
decision to prosecute on the
ground that it was arrived
at under political pressure or
influence or was motivated
politically rather than by an
objective review of proper
prosecutorial considerations
(such as, in England, those
set out in the Code for Crown
Prosecutors issued under
the Prosecution of Offences
Act, 1985.)’
182. An examination of the
above passage posits that the test is
therefore a proscription of
decisions to prosecute that are arrived
at under political pressure,
or influence, or those that were
motivated politically, rather
than by an objective review of proper
prosecutorial considerations.
The South African equivalents are
of course the prosecution
policy, the code and directives I have
already mentioned above. They
posit a prosecution model which
is totally independent of
political influence and which prosecutes
fairly, consistently and
without fear or favour to anyone. I have
85
already indicated why the
failure to prosecute the applicant was
an egregious breach of those
principles.
183. The learned Lord Bingham
of Cornhill and Lord Walker of
Gestingthorpe then stated that
under the Judicial Review Act
2000, judicial review lies
against a public prosecutor, for instance,
if he acts on instructions
from an unauthorized person. The Lords
then continue
‘It is well established that a
decision to prosecute is
ordinarily susceptible to
judicial review, and surrender
of what should be an
independent prosecutorial
discretion to political
instruction (or the Board would
add, persuasion or pressure)
is a recognized ground of
review…’
184. After indicating the
clear principles involved the case was
decided on the facts. In that
matter the prosecutor had no
meetings with any politicians
or even any contact. The Privy
Council then decided at page
793 that
‘there was no reasonable basis
for concluding that the
Deputy DPP’s decision or
advice was influenced by
political pressure. She had
been expressly instructed to
make her own independent
decision. She swore that she
did so, having no contact with
the Prime Minister on any
subject nor with the Attorney
General on this subject.’
185. The Privy Council then
dismissed the appeal of the Chief
Justice for a lack of any
evidence of interference of any sort and
86
effectively denied his bid to
stay all actions consequent on the
decision to prosecute.
186. Our South African law is
no different. In S v Yengeni op cit the
appellant – a former member of
Parliament – had been convicted
of corruption arising out of
an aspect of the arms deal, relating to
his purchase of a motor
vehicle. The appellant had discussed his
potential sentence with a
former Minister of Justice and
Constitutional development, Mr
Maduna and the then NDPP, Mr
Ngcuka. This discussion took
place at a meeting at the Minister’s
home during January 2003. It
was also common cause that the
three of them agreed that
‘should the appellant plead guilty to a
“watered-down” charge, the
State would not seek a custodial
sentence. Bertelsmann and
Preller JJ said the following at
paragraph [57]
‘It was indubitably
ill-advised for the former National Director
of Public Prosecutions [Mr
Ngcuka] to be seen to participate in
a discussion with the Minister
[Mr Maduna] and the appellant.
The independence of the office
that he held, and the fearless
and unfettered exercise of the
extensive powers that this office
confers, are incompatible with
any hint or suggestion that he
might have lent an ear to
politicians who might wish to
advance the best interests of
a crony rather than the search
for the truth and the proper
functioning of the criminal and
penal process.’
87
187. In this matter apart from
Minister Maduna informing the
applicant about this
investigation shortly after it started, was
there any other suggestion
that there was political interference?
Is there a suggestion that
what Bertelsmann and Preller JJ
warned against had taken
place? Was there a breach of the
independence of the office
that he held, and interference with the
fearless and unfettered
exercise of the extensive powers that this
office confers as the judges
said? Is there a hint or suggestion
that the NDPP might have lent
an ear to politicians as the learned
judges admonished? Was there
political pressure, influence or
persuasion of any sort as the
Privy Council suggested in
Sharma’s case?
188. In the press statement Mr
Ngcuka states that he conducted the
investigation ‘without any
undue influence from the executive or
any arm of our government.’ He
should have said it was
conducted without any
influence whatsoever. I might interpolate
to say that the prosecution
policy and code of conduct emphasise
very clearly that statements
should not be made to the media
before a prosecution is
instituted. At the press conference, which
was broadcast on national
television, Mr Ngcuka then thanks a
number of his staff and then
says the following of and concerning
88
Dr Maduna, who was present, at
the press conference, sitting next
to him:
‘More importantly, I want to
extend my greatest appreciation to
Dr Panuell (sic) Maduna, the
Minister of Justice, for his
unstinging support. Minister,
you’ve once more demonstrated
political leadership.’
189. Given that there should
not be a hint or suggestion that the
NDPP might have lent an ear to
politicians he is here expressing
his greatest appreciation to a
politician for his ‘unstinging’ (sic)
support. Perhaps he meant
‘unstinting’. Even if he meant the
Minister was not stingy in his
support – in other words very
generous in the time and
energy he spent on the matter, it is a
startling statement, given the
total independence the NDPP is
supposed to exercise.
190. The comment that the
Minister’s generous support
demonstrated once more his
political leadership leaves much to
be desired. How does a
decision to prosecute Mr Shaik and not
the applicant provide a
further demonstration of political
leadership? Is the reason that
he said this that the decision not to
prosecute the applicant needed
political evaluation and Mr
Ngcuka learned from the advice
of his leader? That seems to be
the most plausible inference.
The presence of the Minister at the
89
press conference is otherwise
inexplicable and seems to indicate
a total lack of appreciation
of the independence of the NPA.
191. I must conclude that the
Minister gave generous amounts of
his time and energy to the
NDPP and political leadership in the
long period leading up to the
press conference. Laconic as these
comments may be they certainly
are not consonant with ‘the
fearless and unfettered
independent exercise of extensive
powers’ referred to by the
learned judges in the Yengeni matter.
The comments certainly
strengthen the inference that the
decision not to prosecute the
applicant was politically driven.
192. There is another
disturbing feature in the decision to withdraw
charges against Thint in the
Shaik matter. Mr Du Plooy, the
deponent to the opposing
papers, filed on behalf of the NDPP,
explains how the charges
against Thint were withdrawn. He
explains that Thint was
accused no 11 in the Shaik trial and that
some months prior to the trial
date Thint approached Minister
Maduna and indicated it wished
to meet with him and Mr Ngcuka.
These matters are not in
dispute and curiously are volunteered by
the respondent himself. It is
not clear whether a physical meeting
took place but that is the
most plausible inference. Following on
the approach to Mr Maduna some
discussion must have taken
90
place as two trips were made
to Paris by Mr Ngcuka and Mr
McCarthy but, apparently, to
no avail. The political meddling, that
the judges in Yengeni’s matter
had been so critical of, was being
repeated. At paragraph 35 of
Du Plooy’s answering affidavit the
following appears:
’35.1 In the latter half of
2003, an intermediary ostensibly
acting for the Thint group
contacted Minister Maduna
and indicated that the group
wished to meet with him
and Mr Ngcuka. Pursuant to
this approach, Mr Ngcuka
traveled to Paris on two
occasions in the second half of
2003 (Mr McCarthy accompanied
Mr Ngcuka on one of
these occasions). Nothing came
of those discussions.
35.2 In early 2004, Mr Maduna
was contacted by the
legal representatives of Thint.
Pursuant to this
approach, a meeting was held
at Mr Maduna’s house in
April 2004 at which the Thint
delegation indicated their
willingness to co-operate with
the prosecution. It was
agreed that they would contact
Mr Ngcuka’s office to
discuss the terms of their
co-operation.
35.3 On 19 April 2004 a
meeting was held between
Thint’s representatives on the
one hand, and Mr Ngcuka
and Mr McCarthy on the other.
They concluded an
agreement. Mr Ngcuka confirmed
the agreement in a
letter to Thint’s counsel
later that day. The agreement
was that, if Mr Thetard made
an affidavit verily to the
effect that he was the author
of the encrypted fax, the
NPA would, amongst other
things, retract warrants for
Mr Thetard’s arrest and
withdraw the prosecution
against Thint.
35.4 On 20 April 2004 Mr
Thetard made an affidavit
confirming that he was the
author of the encrypted fax.
On 4 May 2004 Mr Ngcuka
confirmed that he would
withdraw the charges against
Thint on the date of the
next appearance in the Shaik
matter. Notwithstanding
the fact that shortly
afterwards Mr Thetard made a
further, unsolicited affidavit
evidently aimed at
91
undermining his first
affidavit, the NPA decided to keep
its side of the bargain and
the charges were withdrawn
against Thint on 11 October
2004.’ (Emphasis added.)
193. What is clear from the
respondent’s own papers is that the
Minister had a meeting with Mr
Ngcuka, the NDPP and
representatives of an accused
in the case. It is clear from the
above that once the group
spoke to the Minister he contacted
Ngcuka who went to Paris on
two occasions. What is clear is the
Minister must have made his
input into the offer and its
consequences for the
prosecution against Shaik. This fax was of
course crucial in the future
case against the applicant. The fax
must have been the subject of
discussions in Paris.
194. We know that in early
2004, Mr Maduna was contacted by the
legal representatives of Thint
and a meeting was held at his
house. The Thint delegation
indicated their willingness to cooperate
with the prosecution. An
agreement was reached at this
meeting at which the minister
was present. The terms were that
Thint would cooperate and Mr
Thetard would make an affidavit to
the effect that he was the
author of the encrypted fax. In return for
this cooperation the NPA would
withdraw the charges.
195. Clearly the Minister and
Mr Ngcuka were using the oldest
device in the ancient art of
prosecution - to continue the angling
92
metaphor of Sachs J in the
Constitutional Court - using a sprat to
catch a mackerel. So long as
Thint (the sprat) agreed to agree that
it wrote the fax then the
prosecution could then catch Shaik (the
mackerel). The applicant
maintains that the ultimate objective of
the strategy was to prosecute
Shaik and, when he was convicted,
fire the applicant. I have
explained why he regarded that as unjust
given that the NDPP had never
had the courage to charge him and
give him a chance to defend
himself. So the applicant maintains
that he was the big fish - if
one were to continue this dubious
metaphor - as the deputy
president of the country and rival of the
President in the race for the
presidency of the ANC. These
contentions fall into the
series of allegations the respondent
wishes to strike out of
applicant’s affidavit.
196. Put at its very lowest Mr
Maduna seems to have played a not
insignificant part in the
planning of the strategy in question,
whatever its end objective
might be. Given the constitutional
imperative for the NDPP to be
totally independent, and decide
without fear or favour it was
a most regrettable occurrence, in the
light of the fact that it also
constituted a serious criminal offence.
197. Is there any evidence
that political interference has continued?
Annexed to the Respondent’s
answering affidavit in this matter is
93
a supporting affidavit by Mr
Pikoli, put up in the adjournment and
permanent stay applications
before Msimang J, in which he says
the following:
’30. It is denied that the
prosecution has not approached
the Presidency about the
matter [the arms deal enquiry].
The NPA and the prosecution
team have in fact been
engaging with the Director-
General in the Presidency in
this regard since February
2006.’
198. This paragraph is in
response to paragraphs 29 and 30 of the
applicant’s founding
affidavit, in the proceedings before Msimang
J, in which he sets out what
role the President played in the arms
deal acquisition process. The
applicant does not suggest that the
President was guilty of any
corruption but suggests that the
President is in possession of
sufficient knowledge to clear the
applicant.
199. Other documents filed
include admissions by the NPA,
through its spokesman
Makhosini Nkosi, made on 9 July 2006
that the President has never
been the subject of investigation, as
that was never warranted, as
there was no evidence of
impropriety by him. The
meetings with the Director-General in the
Presidency could not,
therefore, have been about the President’s
involvement. Nor is there any
suggestion that any crimes in
connection with the arms deal
were committed in the office of the
94
President. The ongoing
meetings could only relate to the
complicity of the present
applicant. These consultations with the
office of the Presidency on
the implied ongoing basis from
February 2006 are also cause
for concern given the constitutional
imperative of independence.
200. There is one further
matter to be considered, which the
applicant alleges provide
proof that there was a political
influence, pressure or
persuasion to prosecute him during
December 2007 when Mr Mpshe
was at the helm of the NPA. The
applicant says that ‘It is
also pointed out that the NPA during 2007
reviewed various cases
including that of Commissioner J Selebi. I
annex hereto newspaper reports
reflecting this.’
201. In an article by Mr Sam
Sole, dated 5 October 2007 in the
Mail
and Guardian,
annexed to
the papers, mention is made of certain
warrants of search and arrest
issued against Mr Selebi. The
warrants had not been executed
and Mr Pikoli contacted the
President who instructed the
Minister of Justice to write to Mr
Pikoli. The article says the
following:
‘She did so, apparently
demanding access to the Selebi
docket and seeking to
circumscribe Pikoli’s prerogative
to make a decision. Pikoli
replied, asserting that
prerogative and warning the
Minister over her attempt to
95
interfere. That prompted Mbeki
to suspend Pikoli on
September 23. On September 28,
the acting national
director of Public
Prosecutions, Mokotedi Mpshe,
applied successfully to have
the arrest warrant
cancelled. He later revealed
that the Selebi case is the
only one that is being
‘reviewed’ by him. The
inescapable conclusion is that
this is as a result of
Mbeki’s intervention… we can
only conclude that the
difference between the two
cases is that the decision on
Zuma was politically palatable
to Mbeki whereas the
decision on Selebi was not.’
202. The respondent states in
reply that the paragraph is disputed.
He goes on to say
‘It is incorrect that Mpshe
reviewed “various cases
including that of Commissioner
J Selebi”. In fact he
reviewed only Selebi’s case,
at the request of the
Minister of Justice. Once
again, the applicant bases his
assertions on unsubstantiated
and inaccurate press
reports.’
203. The only other response
by the respondent is to be found
earlier in the answering
affidavit, at paragraph 89.
‘89. Between the hearing on 27
to 29 August 2007 of the
appeals in the SCA concerning
the August 2005
searches and seizures and the
handing down of the
SCA’s judgments on those
appeals on 8 November
2007, the President suspended
Mr Pikoli as NDPP,
stating that there had been an
irretrievable breakdown in
the working relationship
between Mr Pikoli and the
Minister of Justice and
Constitutional Development, Ms
Brigitte Mabandla. The
President appointed Mr Mpshe as
the acting NDPP.’
96
204. An affidavit is put up by
Mr Pikoli but nowhere does he deal
with the allegations in the
article by Mr Sole. The applicant knew
little or nothing of these
goings on and put up the best evidence
he could find. Mr Pikoli was
the NDPP and must have known the
answers to these allegations.
By law he is supposed to admit or
deny or confess and avoid
these allegations or face the prospect
of the court accepting the
allegations as correct. See
Moosa v
Knox
1949 3 SA 327 N at
331.
205. From the above it is
clear that there is no attempt by Mr Pikoli
to deal with the allegation of
the blatant interference by the
Minister and the fact that Mr
Pikoli asserted his rights of
independence. There is no
refutation that the Selebi warrants
were cancelled by Mr Mpshe
after political interference and that
Pikoli was suspended because
he refused to do so. There is an
admission that Pikoli reviewed
only Selebi’s case, at the request
of the Minister of Justice.
The other admission relates to the fact
that the President suspended
Mr Pikoli as NDPP, stating that
there had been an
irretrievable breakdown in the working
relationship between Mr Pikoli
and the Minister.
206. At the level of the most
plausible inference, in the absence of
any other competing one, it
must be inferred that there was again
97
political interference at the
very time Mr Mpshe was
contemplating charging the
applicant. Mr Pikoli does not deal
with the allegation that the
issuing of the warrants against Selebi
was not palatable to the
President but the decision to prosecute
the applicant was.
207. The NDPP states
unequivocally that the NDPP Mr Pikoli was
suspended by the President
because of a breakdown in his
relationship with the Minister
of Justice. There should be no
relationship with the Minister
of Justice – certainly insofar as his
decisions to prosecute or not
to prosecute anybody from the
Commissioner of Police
downwards. All that is clear from the
Constitution, the NPA Act and
the various prosecution policies,
directives and codes of
conduct. The suspension of the National
Director was a most ominous
move that struck at the core of a
crucial State institution. Of
importance to the applicant was the
fact that Pikoli’s
replacement, Mr Mpshe, who had to decide his
fate, must have realized that
to disobey the executive would in all
probability ensure his own
professional demise.
208. The trial of the
applicant was not proceeded with before
Msimang J and struck off the
roll on 20 September 2006. The
judge in that matter made
serious comments about the manner in
98
which the NDPP was dealing
with the matter. I have dealt with the
bilateral nature of corruption
and the inexplicable decision not to
prosecute the applicant in
August 2003. It is very difficult to
understand why the State did
not proceed against the applicant
on the evidence they had,
given that it had resulted in a fifteen
year sentence for Shaik.
209. The applicant states in
his founding affidavit that after all
these proceedings he and those
who wished him to occupy a
leadership role in the ANC
‘were concerned about the criminal
charges being re-launched at
all and moreover being launched at
a critical time in the
political process’. He goes further and
suggests that this was a
stratagem to cloak him in the guise of an
accused at the critical
moments in the political process and so
hamper his election as ANC
President. There does seem to be
merit in that contention. I am
therefore not inclined to strike out
these allegations.
210. The timing of the
indictment by Mr Mpshe on 28 December
2007, after the President
suffered a political defeat at Polokwane
was most unfortunate. This
factor, together with the suspension
of Mr Pikoli, who was supposed
to be independent and immune
from executive interference,
persuade me that the most plausible
99
inference is that the baleful
political influence was continuing. If
the NDPP is to be totally
independent and perform his functions
without fear and favour he
should not be liable to suspension by
the executive at any given
moment.
211. In the decision of the
Privy Council of the House of Lords in
England in Grant v DPP
[1982] AC 190 at 201 Lord Diplock said of
the Jamaican Constitution
‘The office of the Director of
Public Prosecutions was a
public office newly-created by
section 94 of the
Constitution. His security of
tenure and independence
from political influence is
assured. In the exercise of his
functions, which include
instituting and undertaking
criminal prosecutions, he is
not subject to the direction
or control of any other
person.’
212. I might interpolate to
say that it seems to me that the only way
to ensure the independence of
the NDPP is to make his
appointment and dismissal on
the same conditions as that of a
judge. If his security of
tenure and independence is not assured
and he can he suspended by the
executive, the whole legal
process is in serious
jeopardy.
213. What Mr Maduna and his
successor Miss Mabandla did is also
the responsibility of the
President and his whole cabinet. The
most renowned definition of
collective responsibility of the
100
Cabinet appears in LAWSA
Second Edition, volume 5(3), title
Constitutional Law, paragraph
227 where Lord Salisbury is
quoted as saying:
‘For all that passes in
Cabinet every member of it who
does not resign is absolutely
and irretrievably
responsible and has no right
afterwards to say that he
agreed in one case to a
compromise, while in another he
was persuaded by his
colleagues . . . It is only on the
principle that absolute
responsibility is undertaken by
every member of the Cabinet,
who after a decision is
arrived at, remains a member
of it, that the joint
responsibility of Ministers to
Parliament can be upheld
and one of the most essential
principles of
parliamentary responsibility
established.’
214. In terms of the
Constitution of the Republic of SA 108 of 1996
s 92(2) Cabinet ministers are
also accountable, collectively and
individually, to Parliament
for the exercise of their powers and
performance of their
functions. Is it possible that the Mr Maduna
was on a frolic of his own or
acting on instructions? It seems very
improbable that in so
important a matter as one involving the
Deputy President (his
political superior) a mere minister would
get involved without the
President knowing and agreeing.
215. The allegations of
corruption affected not only the government
but the party and the whole
country. Given the keen competition
between the applicant and the
president for the leadership is it
conceivable that the president
did not know? The President is
101
after all the only person who
can dismiss the Deputy President in
terms of the Constitution. In
terms of sub-sections 96(3)(4) and
(5), added by annexure B to
Schedule 6 of the Constitution,
Ministers are accountable
individually to the president and to the
National Assembly for the
administration of their portfolios. In
terms of the Constitution all
members of the Cabinet are
correspondingly accountable
collectively for the performance of
the functions of national
government and its policies.
Furthermore, ministers must
administer their portfolios in
accordance with the policy
determined by the Cabinet. However,
should it happen that a
minister fails to administer the portfolio in
accordance with the policy of
the Cabinet, the president may
require the minister concerned
to bring the administration of the
portfolio into conformity with
that policy.
216. It seems to me that in
terms of the law, more especially
emanating from the
Constitution, there is responsibility
attributable to the President
and his cabinet for what Mr Maduna
did. This would, of necessity,
also apply to what Ms Mabandla did.
I am therefore not convinced
that the applicant was incorrect in
averring political meddling in
his prosecution. I will deal with the
consequences of this on the
striking out applications later in the
judgment.
102
217. If there was political
interference in the earlier decision not to
prosecute the applicant and in
all probability the later one to
prosecute him what does one
make of the offer of the NDPP that
the applicant can make
representations at any time about the
investigation or prosecution?
It seems to me that if he was
afforded the chance to make
representations at any time for any
reason, it would be the duty
of NDPP as he expressed it to
consider these.
218. The applicant expresses
this as follows, after explaining that
there was no new evidence, at
the time Mr Pikoli decided to
prosecute him. At paragraph 73
he says
’73. It is in this context
that the NDPP’s failure to comply
with the provisions of section
179(5) must be
considered. Where such
extraneous factors as the
politics of the day and a
change in decision without any
new evidence are present,
there is indeed an obligation
to be extra vigilant in
ensuring compliance with Section
179(5) to the fullest extent.
And if there is new evidence,
surely one seeks an
explanation from the person to be
charged in these
circumstances.’
219. Given the political
entanglements and machinations in the
whole matter of the
applicant’s prosecution, there does seem to
be merit in this submission.
This would apply more especially if
103
the political thinking changed
and consideration was to be given
to charging him.
220. There is a distressing
pattern in the behaviour which I have
set out above indicative of
political interference, pressure or
influence. It commences with
the ‘political leadership’ given by
Minister Maduna to Mr Ngcuka,
when he declined to prosecute the
applicant, to his
communications and meetings with Thint
representatives and the other
matters to which I have alluded.
Given the rules of evidence
the court is forced to accept the
inference which is the least
favourable to the party’s cause who
had peculiar knowledge of the
true facts. It is certainly more
egregious than the ‘hint or
suggestion’ of political interference
referred to in the Yengeni
matter. It is a matter of grave concern
that this process has taken
place in the new South Africa given
the ravages it caused under
the Apartheid order.
221. In the Yengeni matter the
judges went on to emphasise the
importance of the independence
of the prosecuting authority
when they stated at paragraph
[52]
‘The independence of the
Judiciary is directly related to,
and depends upon, the
independence of the legal
professions of the [NDPP].
Undermining this freedom
from outside influence would
lead to the entire legal
104
process, including the
functioning of the Judiciary,
being held hostage to those
interests that might be
threatened by a fearless,
committed and independent
search for the truth.’
222. There is a contradiction
between Mr Mpshe and Mr Tlali as to
whether the applicant’s case
was under review. After Msimang J
struck the matter off the roll
the NDPP had to make up his mind
whether to charge the
applicant afresh. Whichever version is
accepted – in other words,
irrespective of whether there was to be
a review of the applicant’s
case - that was a decision the NDPP
had to make. When he made it
he told the applicant that he would
not hear any of his
representations.
223. What weight can be given
to his promise to listen to all
representations at the press
conference held by Mr Ngcuka? It is
also clear that the respondent
always acknowledged the
applicant’s right to make
representations. At paragraphs 154.2
and 164 respondent says
‘154.2 The applicant has in
any event had ample
opportunity to make
representations on the decision to
prosecute him since it was
taken. He could have made
these representations to
Pikoli who took the decision to
prosecute him. He could
moreover more recently have
made the representations to
the NPA either before or
after the current decision to
reinstitute charges. He
required no invitation to make
such representations…’
105
‘164… Any accused person, and
indeed any suspect, is
free to make representations
to the NPA regarding a
pending or anticipated
prosecution. The applicant,
represented as he is by senior
and experienced counsel,
must be well aware of this.’
224. In the light of these
statements it is most strange and
disturbing that Mr Mpshe shut
the door on the applicant making
any such representations. In
my view the promise at the press
conference was binding on the
NDPP on two scores. Firstly,
because it was an invitation
to the applicant to make
representations and he
acquired a legitimate expectation to make
them pursuant to the promise.
Secondly, the NDPP told the
applicant and the world at
large that he was duty bound to
consider any such
representations in terms of section 22(4)(c).
It
is reinforced by the
subsequent attitude.
225. The NDPP is a very
important appointment. If his word is worth
nothing then our National
Prosecuting Authority is in peril. In
Wronsky and another v
Attorney-General 1971 (3) SA 292 (SWA)
the applicants had applied for
an order directing the respondent
in terms of section 14 of
Ordinance 34 of 1963 (S.W.A.) to decide
immediately whether or not he
refuses to prosecute certain
persons; and in the event of
his refusal to immediately furnish a
certificate nolle prosequi.
The respondent had stated that he had
106
not yet decided as he wished
to study further statements before
he decided. It was not alleged
that he had acted mala fide.
226. It was held, that the
application should be refused. Hoexter J
(as he then was) held that
where mala fides was neither alleged
nor proved the court had no
reason to doubt the allegations of the
attorney-general that he was
not in any position to make a
decision. The court held at
pages 294-5 that it was obliged to take
into account what it termed
‘the elevated position of the attorneygeneral’.
227. The court approved a
dictum by Acting Judge President
Watermeyer to the effect that
the attorney-general ‘is the highest
official in charge of
prosecutions and the Court is bound to place
great reliance and great trust
in what he says.’ See
Heller v
Attorney-General
1932 CPD
102 at page 104.
228. It seems clear that the
applicant was entitled to place great
reliance and trust in what Mr
Ngcuka said in inviting
representations at the press
conference.
229. Because of the political
meddling I am of the view that the
respondent did not maintain
his independence and was not in a
107
proper position to carry out
his duties to honour the promise to
hear representations or to
respond properly to the request to
receive representations. I am
not saying the political meddling is
a sufficient ground on its own
to secure the relief at all. That was
not an issue as such in this
application. What I mean is that it was
legitimate of the applicant to
place it before the court to evaluate
his right to make
representations.
230. I am of the view that the
applicant had a legitimate expectation
that his representations be
heard by Mr Pikoli in the first instance
and Mr Mpshe especially after
the promise at the press
conference and the letter
requesting an opportunity to make such
representations.
231. For this additional
reason I believe the NDPP ought to have
heard the applicant’s
representations.
232. It is interesting that in
the Sharma judgment to which I have
referred extensively earlier
on the Deputy DPP did invite
representations from the Chief
Justice in that case.
‘On 2 June she supplied the
Chief Justice with a
summary of the allegations
being investigated and told
his legal representative that
she would consider any
representations he might think
it necessary to make.
108
Such representations were
submitted to her in writing
on 23 June.’
233. I might add in conclusion
on this point that I wonder at the
wisdom of the respondent in
not hearing the applicant’s
representations, when he asked
to make them. That would
certainly have allowed the
matter to proceed more speedily. There
are many complaints and
recriminations about procrastination in
this matter. The
constitutional court has spoken about the
undesirability of points taken
to delay matters. The courts have
over the years said much the
same.
234. In
Le Grand (t/a
Jeannes) v Carmelu (Pvt) Ltd (t/a Lynwood
Fashions)
1980 (1) SA 240
(ZRA) MacDonald CJ at 242D - G said
the following
‘The civil courts in common
with the criminal courts
exist to do justice and not to
provide some practitioners
with a forum in which, relying
upon technical and wholly
academic points, to attempt to
prevent a court
adjudicating upon the real
issues.’
235. The respondent complains
that the applicant keeps preventing
the matter from proceeding to
trial. It must always be borne in
mind that the State decided
not to prosecute the applicant in the
Shaik matter five years ago on
23 August 2003, in the peculiar
circumstances I have
mentioned. That was after an exhaustive
109
two year investigation,
interviewing hundreds of witnesses in
several countries and at great
cost no doubt to the taxpayer.
More than two years ago the
State asked for an adjournment for
the criminal trial against the
applicant, which was correctly
refused by Msimang J. So all
the blame for delays is not to be
attributed to the applicant.
236. It was said with
commendable clarity and forthrightness in
R
v
Hepworth
1928 AD 265 at
277 that:
'A criminal trial is not a
game where one side is entitled
to claim the benefit of any
omission or mistake made by
the other side, and a judge's
position in a criminal trial is
not merely that of an umpire
to see that the rules of the
game are observed by both
sides. A judge is an
administrator of justice, he
is not merely a figure head,
he has not only to direct and
control the proceedings
according to recognised rules
of procedure but to see
that justice is done.'
237. The court has gained the
impression that all the machinations
to which I have alluded form
part of some great political contest
or game. For years the
applicant is under threat of prosecution for
serious corruption and yet
never brought to trial. There is a ring
of the works of Kafka about
this. In addition I have mentioned the
applicant’s threats of
disclosure should he go down.
The applications to strike out
110
238. As I have mentioned the
respondent and applicant have both
brought applications to strike
out allegedly offensive material in
the affidavits of their
opponents. The material in applicant’s
founding papers, apart from
excessive biographical material,
which is really of no great
moment, relates to his allegations of
political meddling in his
investigation and prosecution. The
material concerning his tax
charges flows from this allegation and
must be considered with it. As
appears from the above findings I
am satisfied that political
meddling cannot be excluded and I am
of the judgment that it
existed to a sufficiently egregious degree
that it justified inclusion in
the papers.
239. Put differently, if the
applicant was not prosecuted for what
appears to be some ulterior
political motive, when he became
entitled to make
representations, he needed to know what had
changed in the political
thinking or circumstances that justified
the new decision to prosecute
him. The applicant needed to know
why he was not prosecuted in a
bilateral offence to understand
why he was now being
prosecuted.
240. I am of the view that the
respondent’s application to strike out
must be dismissed with costs.
111
241. The applicant’s striking
out motion is aimed at allegations that
his attacks on the political
meddling in the prosecution were
made without foundation and
were scandalous and vexatious. As
I have found they were
relevant to establish the background and
the basis for the first
decision not to prosecute, the applicant was
not prohibited from raising
them. The respondent was not then
entitled to attack the
applicant and his legal team and their
bona
fides
in including them.
The applicant’s striking out application
must be granted with costs.
The delay
242. It seems clear to me that
the applicant cannot attack the Pikoli
decision to prosecute him as
that indictment became a nullity
once Msimang J struck the
matter off the roll. This was the view
of the Constitutional Court in
the letter of request appeal under
case no CCT 90/07 where it
said
[41] …‘[O]nce a case is struck
from the roll, the case
terminates and is no longer
pending. There is no
guarantee that the criminal
proceedings will be
reinstated. Removal of a
matter from the roll is therefore
abortive of the currency of
the trial proceedings. Should
the trial ever be enrolled, it
would start anew.’
112
243. The decision by Mr Mpshe
to prosecute the applicant was
therefore the reversal of the
decision of Mr Ngcuka not to
prosecute him. As PAJA is
applicable the applicant was obliged
to bring the application for
review within six months and he has
done so. Even if it is not
applicable he was required to bring his
application within a
reasonable time. It seems to me that he has
fulfilled that requirement.
See Wolgroeiers Afslaers (Edms)
Beperk v Munisipaliteit van
Kaapstad 1978(1) SA 13 (AD).
244. The question remains
whether all the charges should be
declared to be invalid. At
some levels the respondent has thrown
the book at the applicant, so
to speak, by including charges
relating to tax evasion etc.
These related to payments he had
allegedly received from Mr
Shaik or his companies and which
should have been included in
his tax return as gifts (bribes).
Some of the payments would
also date after the initial decision
not to charge him. At some
levels they are all interrelated and it
does not seem to make
practical sense to attempt some sort of
severance exercise. In any
event the offer to hear his
representations probably
covered any charges to be brought
against him should the
respondent decide to charge him.
The question of costs
113
245. As I have found these to
be civil proceedings costs must
follow the event. I am not
inclined to grant attorney and client
costs in any of the
applications before me. In the main
application
I am of view that the costs of
three counsel are justified. In the
other applications relating to
the striking out and admission of
the Amicus Curiae I believe
one counsel of junior status would
have been sufficient.
246. I must repeat that this
application has nothing to do with the
guilt or otherwise of the
applicant. It deals only with a procedural
point relating to his right to
make representations before the
respondent makes a decision on
whether to charge him again.
Once these matters are cured
the State is at liberty to proceed
again against the applicant,
subject to any further proceedings he
may bring.
247. I therefore grant the
following orders:
a. It is declared that the
decision taken by the National
Prosecuting Authority during
or about 28 December 2007 to
prosecute the applicant, a
copy of which is annexed to the
applicant’s founding affidavit
as annexure “A” thereto is
invalid and is set aside.
114
b. The respondent is ordered
to pay the applicant’s costs of suit
including those consequent
upon the employment of three
counsel.
c. On the respondent’s
application to strike out certain
paragraphs of applicant’s
founding affidavit I make the
following order:
‘The application is dismissed
with costs.’
d. On the applicant’s
application to strike out certain paragraphs
of the respondent’s answering
affidavit I make the following
order:
‘The application is granted
with costs.’
e. On the application of the
Amicus Curiae, I make the following
order:
‘aa. The application to join
as an Amicus Curiae is
refused.
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bb. The applicant in the
Amicus Curiae application is
ordered to pay the
respondent’s costs, incurred in
opposing that application |
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