Professional Documents
Culture Documents
CCT: 12016
[a quo: 19577/2009}
and
In re:
and
TAKE NOTICE that the Applicants hereby apply to the Constitutional Court in
terms of Rule 19 of the Rules of the Court for an Order in the following terms:
,_
')
1. The Applicants are granted leave to appeal against the judgment and
order of the Full Bench of the High Court, Gauteng Division, Pretoria
29 April 2016.
directing any party who opposes this application to pay the costs
thereof.
TAKE NOTICE FURTHER that within ten days from the date upon which this
provided for in Rule 19(4)(a), indicating whether or not the application for
leave is being opposed and, if so, the grounds for such opposition. The
Respondents must, in that event, appoint an attorney within the area of the
~
THIS )Lf DAY OF JULY 2016
and to:
MINDE SHAPIRO & SMITH INC
Attorneys for First Respondent
KlagMo,,,r, Edelstein Bosman de VriHs I
care of: KLAGSBRUN EDELSTEIN Recr.rvoiJ W,ihcn,t Prnjudn:(, / OntV"llCJ .s,,11do1· B• . 11:c.
.. . , ,., ..,nr1oc mg
BOSMAN DE VRIES INC
220 Lange Street
NIEUW MUCKLENEUK, Pretoria 2016-07-1 5 ~
Tel: 012 452 8900
Fax: 012 452 8901
E-mail: hugo@kebd.co.za --
Ref: Hugo Struwig/PM/CM994
Received copy hereof this
day of July 2016
CCT: 12016
[a quo: 19577/2009]
and
In Re:
and
TABLE OF CONTENTS
Page no Paras
Introduction 2 3-5
Parties 3
Interests of justice 9 20
Conclusion 32 74-77
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT: - - - - - '/2016
[a quo: 19577/2009}
and
In Re:
and
I, the undersigned,
GOSIAME PETER SELEKA
and are to the best of my knowledge and belief, both true and
INTRODUCTION
3. The First and Second Respondents cited in the Court a quo 1 apply
for leave to appeal directly to this Court against the Judgment and
intention to do so.
June 2016.
PARTIES
2
The application was brought in the Gauteng Division, Pretoria (then called North
Gauteng High Court, Pretoria) under case no. 19577/2009.
was appointed as ANDPP on 1 February 2009, and held
April 2009.
was discussed.
this Court.
3
As read with the Practice Direction dated 17 March 2015: INTERIM READING OF
RULE 19 PENDING REVISION OF COURT'S RULES.
14. In the circumstances, the Constitutional Court has jurisdiction by
15. After finding that the decision to withdraw the charges against Mr
Zuma was irrational, the Court a quo stated that Mr Zuma should
16. The question and circumstances under which the NDPP can
4
Annexure A: Judgment: p 46 para 92.
recourse to court. (Of course, that decision will always be subject
to review.)
"may decide any other matter .... that raises an arguable point of
Interests of Justice
20. This matter not only involves whether the President should face
limitation of those powers and the test for rationality applied to the
to appeal be granted.
ARE DISPUTED
First Ground
21. The Court a quo found that the decision taken by Adv Mpshe to
withdraw the charges was irrational because he did not refer the
23. The court may thereafter review such decision taken by the NDPP
5
Annexure "A" Judgment: p 32-35, paras 64, 65 and 71
6
No. 32 of 1998
7
NDPP v Freedom Under Law ("FUL") 2014 (4) SA 298 (SCA), p 306-309, paras [20]-
[27]
a
See NDPP v FUL above at para [28]
discontinue the prosecution, as in the present case, is first taken
by the NDPP.
24. It is submitted that the Court a quo erred in its finding in paragraph
appeal and the Latit1 2 matters were of the view that the
pronouncement. 13
26. It is submitted that the court erred in analogising the facts of the
9
Annexure "A": Judgment: p 35, para 71
10
Annexure "A": Judgment: p 32, para 64
11
HCCC 191/1999 (unreported judgment of the Hong Kong High Court and the
Appeal case FACC No 1 of 2003).
12
1996 (1) WLR 104.
13
See also Annexure "A": Judgment: p 32, para 65. It is to be noted that the Hong
Kong Court of Final Appeal said that the "question is debatable".
~i 2
28. This is a far cry from a case where the prosecution itself believes
on the merits of the case and then, when the trial commences, to
·-·
inform the court that it believes that there has been an abuse of
that stage, the accused would no doubt have been informed of the
'-'•
14
In the HKSAR matter, the grounds put forward for a stay were (a) that the
"prosecution" had manipulated and misused the process of the court so as to
deprive the respondent of a protection provided by the common law duty of
disclosure and/or (b) that although a fair trial was still possible, as a matter of
judicial discretion, it would be contrary to the public interest and the integrity of
the criminal justice system for the trial to take place (see judgment on appeal,
para 47). Latifs case was concerned with the importation of 20 kgs of heroin into
England from the USA. The basis of the abuse of process argument was that the
defendant had been incited by an informer and customs officer, by subterfuge, to
commit the offence and had been lured into the jurisdiction of the English courts.
30. Moreover, where the prosecutorial authority believes that the
NPA.
31. It could hardly be expected of the NPA to apply to court once the
a boundary which should not be crossed. The court would also not
15
Such an application would in effect be an unopposed motion matter. A further
absurdity would be that the prosecutor would have to place the merits before the
Court; the accused too would have to go on oath before his trial begins.
32. In argument in the main application before the Court a quo,
Office. 16 The following extracts from the Corner House case are
16
[2008] 3 WLR 538
17
p 580 B-C
18
p 583 B-C
19
p 584 C-D
"42. In the opinion of the House the Director's decision was
120
one he was lawfully entitled to make .. .'
33. Plainly, it was not within the contemplation of the House of Lords
20
p 584 D-E (In South Africa, the NPA is expressly vested with this power in the
Constitution and the NPA Act).
21
Annexure "B": Judgment refusing leave to appeal, p 5, para 8. The Court a quo
stated that the Democratic Alliance did not seek an order that the determination
of the principle of abuse of process was an exercise for a court of law and not that
of the NPA. The Court a quo continued, stating that it "did not make such a
finding or such an order that in all instances, the determination of the principle of
abuse of process should be determined by a Court of law." (my underlining).
16
37. In the Judgment refusing leave to appeal the Court a quo sought
2
to clarify the position on this subject2 . In paragraph 10, it said that
withdraw the charges himself, then he did indeed act ultra vires his
38. Moreover, the Court a quo did not define how the matter would be
would have the onus to prove the abuse? Would the NDPP have
22
Annexure "B": Judgment on leave to appeal, p.5, para 8. The Court a quo stated
that the Democratic Alliance did not seek an order that the determination of the
principle of abuse of process was an exercise for a court of law and not that of the
NPA. The Court a quo continued, stating that it "did not moke such a finding or
such an order that in all instances, the determination of the principle of abuse of
process should be determined by a Court of Jaw." (Emphasis .added).
23
Annexure B: Judgment refusing leave to appeal, p 6, para 10.
the matter be referred by way of application with the NPA and the
who contends that there has been an abuse of process and where
24
there is a denial of this by the prosecution.
Second ground
40. The Court a quo found that the decision of Adv Mpshe to
McCarthy and that "Mr Zuma should face the charges as outlined
in the indictment.
41. It is submitted that the Court a quo erred in this regard. Relying
on National Director of Public Prosecutions and Others v Freedom
25
Under Law, it is submitted that this finding is an inappropriate
24
In paragraph 9 of the Judgment refusing leave to appeal, the Court a quo stated
that the Applicants are notably silent about what the Court said in paragraphs 70
and 71 of the Judgment. However, paragraph 71 of the Judgment was raised and
dealt with in the first ground in the application for leave to appeal as well as in the
Heads of Argument filed in support of the application for leave to appeal before
the Court a quo.
2S
2014 (4) SA 298 (SCA), at para [51].
·1(',
10
42. This issue was dealt with by the Court a quo in the Judgment
26
refusing leave where the Court a quo stated that the withdrawal of
the charges against Mr Zuma was not an acquittal. The Court a quo
the charges. The Court had no obligation to make an order that the
the setting aside of the withdrawal of criminal charges ... has the
"
26
Annexure "B": Judgment refusing leave to appeal, p 9, para 17
27
2014 (4) SA 298 (SCA), at p 316 para (51].
18
43. Is it the finding of the Court a quo that the charges against
President Zuma have now been reinstated or must the NDPP now
28
p 310.
29
p 311.
20
30
44. In Zuma v National Director of Public Prosecutions, this Court
"[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 re-enrolled,
it would start anew."
[42} As soon as the criminal matter has been struck from the
roll by Msimang J, therefore, that the criminal proceedings
were terminated and the proceedings were no longer
pending. At the time, Mr Zuma had not yet pleaded to the
charge. Even if there might have been an intention on the
part of the NDPP at that stage to reinstitute proceedings,
there was no guarantee that he would actually do so. But
30
2009 (1) SA 141 (CC).
21
45. It accordingly submitted that the Court a quo erred in stating that
46. All of that being said, sight must not be lost of the fact that the
Third ground
31
See also National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at
par a[75]
32
2010 (3) SA 293 (CC) at 321, para [82].
')')
,:...,_
47. The Court a quo referred to the balancing exercise which has to
48. It is submitted that the Court a quo erred in making a finding that
issues:
"I need to state upfront that we could not find anything with
regard to the first three grounds that militate against a
continuation of the prosecution, and I therefore do not
intend to deal in depth with those three grounds. I will
33
Annexure "A": Judgment, p 31-32, paras 63 and 64; p 45, para 88.
34
1996 (1) WLR 104. See the quotation from R v Latif in annexure A: Judgment p 31,
para 63.
23
50. It is therefore clear that Adv Mpshe did indeed consider the merits,
which consideration led him to believe that, but for the abuse of
53. It is submitted that the kind of abuse that arose in this case is
of prosecutorial abuse.
54. It is submitted that where the court is faced with illegal conduct by
56. The Court a quo found 37 that once Adv Mpshe had said that the
protect the integrity of the NPA and the decision to discontinue the
prosecution.
Fourth ground
35
R v Grant (2005] 2 Cr. App. R. 28.
36
367 U.S. 643
37
Annexure "A": Judgment: p 45, para 88.
57. It is respectfully submitted that the Cou1i a quo erred in 38
made.
57.1. It was rather the Applicant's case that, contrary to the NPA's
57.2. The NPA process had been abused for political reasons. Mr
38
Annexure "A": Judgment: p 24, para SO.
26
57.4. The main reason for opposing the application (as found by
reasons. This found its way into Adv Mpshe's address to the
39
Annexure "A" Judgment p 5, para 7.
27
abused the NPA to discredit Mr Zuma and that the motive was
political.
59. It is significant that the Court a quo found that the alleged conduct
40
Annexure "A" Judgment p 16, para 39.
41
Annexure "A": Judgment p 25, para 52.
28
Hofmeyr stated:
not required of the Applicant in this case that it had to prove the
They did not ask for the matter to be referred to oral evidence.
42
P/ascon-Evans Paints Ltd v Van Riebeeck Paints (Pty} Ltd 1984 (3) SA 623 (A) at
634-635.
28
62. Having accepted the serious breach arising from the conduct of Mr
McCarthy, the Court a quo erred in failing to find that such conduct
was so egregious, and the process so tainted, that it was rational
for Adv Mpshe to determine that it was not in the public interest to
Fifth ground
63. It is submitted that the Court a quo erred in finding that the form of
censure Adv Mpshe chose - by discontinuing the prosecution - failed
McCarthy. 43
64. The Constitutional Court has stated that: "(A) rationality enquiry is
65. The principle of legality requires that the exercise of public power
must be rationally related to the purpose for which the power was
given.
43
Annexure "A": Judgment p 26, para 54.
44
Ronald Bobroff and Partners v De la Guerre 2014 (3) SA 135 (CC) at 138 para [7].
See also Democratic Alliance v President of the
Republic of South Africa and Others
2013 (1) SA 248 (cc) para [32].
30
66. It is submitted that Adv Mpshe, as the Acting NDPP, had the power
he did not.
67. His decision was indeed rationally related to the purpose for which
the power was conferred. The purpose of that power in this context
68. It is submitted that this establishes the link required for rationality.
69. Mr Mpshe may conceivably have marked his displeasure with the
But such a step, whatever its merits, would not have been the sole
45
Annexure "A": Judgment: p 25, para 52.
pursued. With the greatest respect, it is not for a court to deem the
legality.
Sixth ground
this regard: -
bent upon ensuring that the indictment was served after the
46
Annexure "A": Judgment p 40-41.
prosecution was delayed. He did so for one reason only, to
bolster Mbeki's chances of successfully defeating Zuma".
71. It is clear that Mr McCarthy and Mr Ngcuka believed that the service
rally around Mr Zuma. That they may have miscalculated does not
72. It was against this background that Adv Mpshe decided that Mr
Ngcuka are accepted, the Court a quo should have found that the ·
CONCLUSION
47
supra para 32
and ends. It is submitted that this in turn means that a court
76. Moreover, the issues in this Application for Leave to Appeal are of
Constitutional Court.
DEPONENT
I hereby certify that the deponent declares that the deponent knows and
understands the contents of this affidavit and that it is to the best of the deponent's
knowledge both true and correct. This affidavit was signed and sworn to before me
at S1~"'-'D,;, \\e on this _J_hj:__ day of JULY 2016, the Regulations contained in
Government Notice R1258 of 21 July 1972, as amended, having been complied
with.
and
DATE OF JUDGMENT:
JUDGMENT
THE COURT:
INTRODUCTION:.
South Africa. The DA asks this Court to grant the foltowing relief:
December 2007;
At the time this application was instituted, Mr Zuma was not yet
Prosecution, Adv Plkoli, were struck from the roll by the Kwa Zulu Natal
taken at a period when the African National Congress (ANC) was about to
conference. The main contestants for the presidency were Mr Zuma and
of Mr Mpshe was that service should be affected in early 2008 after the
.7. The respondents' main reason for opposing this application is that Mr
9. It took almost seven (7) years since this review application was
launched, for it to be heard by this Court. The reason for the delay Is,
amongst others, that there were two main Interlocutory applications which
contended that the DA did not have locus standito bring this
-6-
furnish the record of his decision to the DA. The decision of Ranched
the Rules of The High Court The SCA upheld the judgment of
BACKGROUND
Pikoli had been suspended, The prosecution team investigating the case
of Mr Zuma consisted of Adv. Downer SC (Mr Downer), Adv A Steynberg
(Mr Steynberg}, Adv George Baloyi (Mr Baloyi) and Adv Du Plooy {Mr Du
Pfooy). The team and Mr McCarthy were also advised by two private
senior counsel, namely Adv Wim Trengrove SC and Adv Breytenbach SC.
12. From November 2007, Mr McCarthy kept Mr Mpshe and his deputies in
briefed Mr Mpshe and his deputies on 29 November 2007 and the decision
raised concern regarding the safety and stability of the country, should the
14. On 5 December 2007, the day after the meeting with the Minister, Mr
17. On 10 February 2009 the NPA received written representations from the
21. In the meeting, held on 18 March 2009 where Mr Mphse was also
and came to the conclusion that they had a good case to be pursued
against Mr Zuma,
- 11 -
· 22. There are two letters prepared in March 2009 in consideration of the
part of the record of proceedings. Annexure "D18" is the draft that was
sent to Adv Trengove SC to settle and annexure "D7"_ is the letter settled
Hulley.
23. The DA became aware that the legal representatives of Mr Zuma had
· 2009 as this is the date I have set for myself to apply my mind to
speedily as possible. 11
-12 -
24 .. On the same date, and after the prosecution team had received Adv
recorded as follows:
the Judge-President'~
·-
25. On 23 March 2009 .Mr Mpshe informed the DA that he was not at liberty
prejudice.
26. On 30 March 2009 a meeting took place between Mr Mpshe, his deputies,
April 2009 he would make his decision. Mr Mpshe did not Indicate as to
27. Mr Mpshe said he was satisfied that they had a strong case on the merits
of the case. Mr Mpshe, his deputies and the prosecution team had no
- 13 -
informing him about the audio recordings regarding the contents of the
29. At the time Mr Mpshe had indicated to the deputies that he wanted Mr
decision.
30. Prior to 31 March 2009; Mr Mpshe had been reluctant to listen to the
31. On 31 March 2009 the deputies and Mr Mpshe personally listened to the
tapes In the evening. This after Messrs Hofmeyr and Mzinyathi had
32. On 1 April 2009, the following day, Mr Mpshe met with his deputies and
informed them that he had been disturbed at what he had heard on the
April 2009 that Mr Hofmeyr was of the view that the prosecution should
be stopped, but both the prosecution team and the other deputies were
of the view that the prosecution should continue. It is clear from the
memorandum that on 2 April 2009 the prosecution team had not been
34. On 3 April 2009 Mr Downer was still of the same opinion, but unaware of
simple sine qua non test can be applied here]; and If not
36. On 6 April 2009 Mr Mpshe met with the prosecution team led by Mr
press release.
37. Mr Downer, the leader of the prosecution team, records later in the
issues."
2009 the charges against Mr Zuma and Thint were formally withdrawn
39. The reasons to discontinue the prosecution against Mr Zuma were stated
against the latter for political reasons. The service of the indictment was
stated thus:
prosecution
I need to state upfront that we could not find anything with regard
prosecution....... "
"... .In the present matter, the conduct consists of the timing of the
is not tainted,. the fact that Mr McCarthy, who was head of the
DSO, and was In charge of the matter at all times and managed it
the prosecution itself that is tainted, but the legal process Itself.
McCarthy used the legal process for a purpose other than that
which the process was designed to serve, i.e. for collateral and
Illicit purposes. It does not matter that the team acted properly,
- 18 -
justice..... "
.., "In the light of the above, I have come to the difficult conclusion
that it is neither possible nor desirable for the NPA to continue with
''let me also state for the record that the prosecution team Itself
emphasis)
41. There are thus three important decisions at the centre of this review,
namely:
41.1 The first decision was that of the NPA and DSO to prosecute Mr
questions raised herein are who took the decision, when and why?;
and
41.3 The third decision of 1 April 2009 is the one made by Mr Mpshe to
the reason for this decision emanate from the alleged misconduct
42. The main reason for the 1 April 2009 decision to discontinue the
' . .....a) It will not be possible to give the accused a fair trial; or
AC 1254)"
43. It is against this background that the Court now turns to deaf with the
of Mr Zuma.
44. When this review application was launched on 7 April 2009, the
(PAJA), 2 in line with the decision in Sato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs and Tourism and Others3 •
2
Act 3 of 2000.
3
2004 (4) 490 (CC) at par;;i 25, where O'Regan J held that the grounds of review are now
based on PAJA as codified in s6 thereof, and no longer under common law.
'2012 (3) SA 486 (SCA) at P494 from para 23.
-21 -
net to give the Court some degree of control over action that
5
The SCA dealt will) !he.history of the review ;is deyeloped in Pharmar:eutfca/
Manufacturers A:ssocfatlon of South Africa and Another In Re: Ex Parte the Pree/dent
of the Republic of South Africa and Others 2000 (2) SA 674 (CC) and Affordable
Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC).
6
2014 (4) SA 298 {SCA).
-22-
achieve a particular purpose on the one hand and the purpose or end
other means that could have been used, but whether the means
achieved. And if, objectively speaking, they are not, they fall
therefore that both the process by which the decision is made (the
7
2010 (3) SA 293 (CC).
• Albutt supra at
- 23 •
Prosecutions and Others 10, Murphy J dealt with the question of the
went on appeal to the SCA11, where the Court held that the decision to
under PAJA but on the basis of the principle of legality and irrationality.
and upon setting aside the decision, to step into the shoes ·of the
8
2013 (1) SA248 (CC)
10
2014 (1) SA254 (GNP)
11
2014(4) SA 298 (SCA)
. 24 •
50. It was argued on behalf of the 1st and 2nd respondent, the ANDPP and
the DSO, in essence, that having regard to the Browse Mole report
rational.
51. Mr Zuma's counsel argued that even if the merits of the state's case
52. In our view, the alleged conduct of Mr McCarthy as appears from the
involve an enquiry into the allegations, and if need be, also censure
by a court of law.
He only did that on 30 March 2009 two days before he took the
.the content of the tape recordings before they could comment. This
wait for their response and proceeded to make the decision on 1 April
breached a cardinal rule of audi a/teram partem i.e hearing the other
54. Mr Mpshe in his media address concedes that the substantive merits
and the fair trial defences of the prosecution of Mr Zuma were not
55; The amicus curiae argued that the DA should have brought the review
could not have had the authority to take the decision as alleged.
56. The submissions of the amicus curiae are clearly way off the mark and
not supported by any decided cases. Writing for the SCA in the matter
75, thus:
- 27 -
Mpshe decision was also not one made by the NDPP and
the matter had been struck from the roll by Msimang J, the
57. In regard to the submission that the DA should have brought the
Freedom Under Law supra, where the two judgments deal extensively
DOCTRINE
59. The NDPP derives his/her authority from s179 of the Constitution of
12
Act 108 of 1996.
- 29-
being the NPA Act 13• More specifically, s22 thereof which deals with
officials, including offences and penalties are dealt with under s41.
of the Prosecution Policy Directives dated 1st June 2014 deals with
the prosecution are required to act within the confines of these legal
instruments.
when the latter allegedly manipulated the timing of the service of the
13
Act 32 of 1998, which has since then been amended.
- 30 -
J of the High Court of Hong Kong in the matter of HKSAR v Lee Ming
Tee 14. This decision was however overturned on appeal 15 where the
14
Case number. HCCC 191/1999 ( Unreported judgment of the Hong Kong High Court,
15
HKSAR and lee Ming Tee and The Securities and Futures Commission, Case number
FACC No 1 of 2003.
- 3i -
63. In the same media address, Mr Mpshe also referred to the British
thus:
say that in a case such as the present the Judge must weigh- in
the balance between the public interest in ensuring that those
that are charged with grave crimes should be tried and the
18
1996 (1) WLR 104
- 32 -
the Courts will adopt the approach that the end justifies any
means."
mention that the Courts in both the HKSAR appeal and the_ Latif
abuse of process was an exercise for a Court of law and not an extra-
judicial pronouncement.
66. The Court in the Latif matter also held that the application of the
the ire of the public. The second imperative is the instance where the
criminal justice system as a whole, and not only the NPA, will incur
the reproach that it is failing to protect the public from serious crime.
17
Supra
- 33 -
68. A court of law is the appropriate forum to deal with the abuse of .
. process doctrinej, not extra- judiclai prbcess: Pnor to 1 April 2009 and
after he was briefed about the contents of the tapes; Mr Mpshe
team, that the allegations raised in the tape and the representation by
statement that the prosecution team held this view, but on 1 April
18
2009 (2) SA 277 (SCA)
-34-
NPA officials expressed the view, that the matters raised in the
the following:
".. ..I do not consider that this matter in itself will prevent your
70. In .February 2009 the Kwa Zulu Natal Division of the High Court
2009. This meant that such an application had to be filed in about six
weeks' time. Mr Mpshe does not state why he could not wait for a
fifed so that the court could ultimately deal with it. The matter has a
71. The legal authorities cited above, of which Mr Mpshe should have
and the charges. It is thus our view that Mr Mpshe, by not referring
that the decision was his and no one else's, he was deliberately
to delay the service of the indictment. This particular version was not
19
The NDPP v Zuma Judgment is dated 12 January 2009, well before the decision on 1 April
2009 and concerned the office occupied by Mr Mpshe as the appellant
- 36-
Downer was aware that I had met the Minister the previous
20
Mr Mpshe deposed to the first confirmatory affidavit dated 30/03/2.015 in support of the
NDPP's answering affidavit of Hofmeyr. He then deposed to the second affidavit stated as
supplementary affidavit and dated 30/06/2015 after the DA's Replying affidavit
. 37 ·
day. I did not want him to think that the Minister had
26. I did not tell Downer that it was McCarthy who had
prosecution was the better option for the NPA. I knew that
decision.
27. As head of the NPA, I felt that I had to support the decision.
contradictory versions:
73.1 The first version is that he, Mr Mpshe took the decision, which
was his and his alone. The reason being in consideration of the
speech by the then President Mbeki calling for calm ahead of the
73.2 The second version is that he took the decision after being
73.3 The third version is that it was Mr McCarthy who took the
75. The DA• sobmits, Within ~ cohteiit ofMr Mpshe 'appearing to disown
the decision to delay the seNice of the indictment, that Mr Mpshe lied
76. Apart from the contradictory versions as to who took the decision to
delay the service of the indictment and for what reason, there has
would be tog/cal to assert the view that the service of the indictment
77. However, it is not indicated in the papers before us how the service of ·
The Browse-mole Report did not relate to the timing of the service of
does not support the allegation that by seeking to del~y the service of
the management team of the NPA had been to continue with the
record that there was a change of this view, rtght up to the evening of
the 31 March 2009 when Mr Mpshe and other senior members of the
the tapes on 31 March 2009, he had been briefed about the content
and knew what to expect. However, the following day on the 1 April
21
This appears from the Answering Affidavit of Mr Hofmeyr as well as the draft memoranda
and letter included in the record as D7 and D8.
-43-
after listening to the tapes, he was angry and felt betrayed and
discussion was held with Senior Members of the NPA to source their
continue with the prosecution. They too had been briefed on the
content of the tape and on the evenJng of 31 March 2009, they heard
have formed some views on the matter. Failure to source their views
under the circumstance was irrational.
84. Mr Mpshe did not reveal that he had heard new information on the
tape, which was not stated to him pr,611/ously by M~ssrs Hbfineyr and
Mzinyathi during their briefing and which caused him to change his
there was something specifically that he had heard which was not
brought to his attention during the briefing. The record reflects that he
still held the view that the prosecution must continue, even after he
counsel for Mr Zuma stated that his client needed a response from
pressure that he could not afford the time and space to properly apply
86. Mr Mpshe ensured that the prosecution team and Mr Downer were
to the public. If indeed the decision had been rational and above
that the decision had been taken on 1 April 2009, the following day on •
.
2 Aprit 2009 submitted a comprehensive memo, motivating why the
22
In fact. Mr Zuma was swom in as President on 9 May 2009, the month after the decision to
discontinue the charges was taken.
-45 -
tapes and state his views. It was, after all, the indictment he had
being discontinued.
88. Mr Mpshe failed to explain how the information he had heard on the
protect the integrity of the NPA and the decision to discontinue the
89. He totally ignored .the concerns h.e had p~rsonally raised prior to
making the decision; that the information from the tape and 1he
90. Mr Mpshe in his own words on 1 April 2009 stated that he felt angry
and betrayed. It is the view of this Court that his feelings of anger and
community. 23 The NPA ignored its own view as set out in the draft
91. For the reasons set out above, this court finds that there are no
curiae.
23
See the R v Latiff supra.
-47 -
is thus our view that the envisaged prosecution against Mr Zuma was
93. The respondents further argued that since the charges against Mr
state that said technical argument was not raised in the papers and it
cannot render the order we are to make herein inept and ineffective.
94. This Court, for the reasons stated above, finds that the decision of 1
· COSTS
95. The costs follow the result and the respondents should bear the costs
of this application, jointly and severally, the one paying the others to
be absolved.
24
See s32 of the NPA Act for the full text of the oath.
-48-
applicant did not persist that a cost order should be made against the
amicus curiae.
3. The first, second and third respondents are ordered, jointly and
three counsel.
4. No cost order against the amicus curiae.
A' LEDWABA
Deputy Judge President ofth~.Hii;it:i Court
Gauteng Division; Pretoria
-49-
CPRETO'RIUS
Judge of the l:flgh Court
Gauteng Division, Pretoria
S PMOTHLE
Judge of the High Court
Gauteng Division, Pretoria
Adv. D Borgstrom
Adv. S V~ele.
Adv. H Maenetje SC
Adv. A Gabriel SC
Adv. T Khuzwayo
AND
IN RE:
AND
JUDGMENT:.
APPLICATION FOR LEAVE TO APPEAL
THE COURT
1.
INTRODUCTION
n:iain judgment") launched by the Democratic Alliance ("the DA"), against the
2.
The DA in that application sought to have reviewed and set aside the dec.ision
by Adv Mpshe SC, the then ANDPP, to discontinue the prosecution of the
charges against Mr Zuma. The Court in the main judgment ordered that the
prosecution of the case against the third respondent, in accordance with the .
3.
The ANDPP and the DSO, the first and second applicants on the one side,
and Mr Zuma, the third applicant on the other side, lodged separate
applications for leave to appeal the main judgment. The applicants further
seek leave to appeal against the findings of facts and/or rulings and/or
4.
The ANDPP and DSO based their applications on six grounds. Some of the
application overlap. Mr Zuma, in addition, contends that there are "some other
5.
THE SUPERIOR COURTS ACT
follows:
"(1) Leave to appeal may only be given where the judge or judges
success; or
(b) "
2. We shall not deal with the grounds of appeal raised by the applicants
ad seriatum and we shall briefly deal with the said grounds as set out
hereunder.
6.
It was submitted and argued by the applicants' counsel that the Court erred in
- finding that Adv. Mpshe acted irrationally by not referring the complaint or
thus rendering his decision irrational. The ANDPP and DSO in the application
further stated that the effect of the finding of the Court is that Adv. Mpshe
7.
The ANDPP and DSO submitted that the National Director of Public
8.
We record that the background facts in this case are common cause. The
applicants in their applications and during argument did not. challenge the
respondent (the DA) in the main application, did not seek an order that the
of law and not that of the NPA. Furthermore the court did not make such a
_finding or such an order that in all instances the determination of the principle
9.
-
The applicants are notably silent about what the court said in paragraphs 70
and 71 of the main judgment. They were selective as they focused on certain
portions in the judgment thus totally disregarding the essence and the order
thereof.
10.
circumstances and/or facts of this case, the Court is the appropriate forum to
deal with the abuse of process doctrine. It is therefore not correct for the
conclusion about the judgment. The Court did not find that Adv. Mpshe acted
11.
The ANDPP and the DSO submitted in paragraph 2.1 of their heads of
argument that the finding of the Court that the envisaged prosecution was not
tainted is wrong. They further submitted that the Court should have found that
the prosecutorial process was tainted and it was not irrational for Adv. Mpshe
12.
It is clear in the main judgment that on the facts of this case, a Court was an
appropriate forum to deal with the issue of whether the prosecution was
tainted or not. It is interesting to note that the applicants impliedly state that it
is the Court that should make such a finding whilst at the same time, they also
argue that it is the NDPP only who can make such a finding.
13.
The main judgment clearly explains why the Court is better placed to deal with
the issue when a proper application is before it and all the interested parties
shall have put forward their versions. It is further explained in the judgment
that Adv. Mpshe irrationally and hastily made a decision not having all the
information before him and not waiting for the requested information.
14.
14.1 The Court in its judgment under the heading "RATIONAL/TY OF THE
the issues raised in the third, fourth and fifth grounds in the applicants'
Court in paragraph 88 of the judgment found that once Adv. Mpshe had
said that the alleged conduct of Mr McCarthy had not affected the
between the need to protect the integrity of the NPA and the decision
15.
The Court clearly understood the argument of the applicants, the AN OPP and
the DSO, when the main application was heard. In paragraph 52 of the
serious breach of the law and prosecutorial policy. Importantly, Adv. Mpshe,
53 and 54 of the judgment. The Court further dealt with the contradictions
regarding the timing of the service of the indictment as set out in paragraph 73
of the judgment.
16.
The opinion of Mr Hofmeyer is just that and not a fact as the applicants seek
Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623(A) at 634-635 was properly
9
that Mr McCarthy and Ngcuka had actively abused the NPA to discredit Mr
Zuma and that the motive was political cannot be regarded as a fact and
binding.
17.
The other ground to support the application raised by Mr Zuma is that the
formal withdrawal of the charges on 8 APRIL 2007 before the Kwa-Zulu Natal
High Court was a vital factor and that the Court in its judgment should not
have stated that Mr Zuma. should .face the charges. In our view, the
withdrawal does not nullify the decision to prosecute should Adv. Mpshe's
stop Mr Zuma to face the charges. The Court had no obligation to make an
order that the matter should be referred back to the NDPP for reconsideration
2014 (4) SA 298 (SCA), p 316, par [51] Brand, JA said the following:
disciplinary proceedings has the effect that the charges and the
18.
The ground raised by the applicants that the Court has breached the
the FUL case has clearly and correctly pronounced that Courts should refrain
executive branch of the State. This Court has cited the SCA's decision in its
main judgment and has throughout been mindful of what has been decided by
the SCA. Mr Zuma's counsel further contends that the Court should have
considered referring the matter back to the prosecution. That would have
resulted in the breach of the separation of powers doctrine. There was thus
no need to make any order regarding what the NDPP should do.
19.
In our view the issues of law concerning the grounds of review and the
separation of powers doctrine have been considered and settled by the SCA
no legal issue arising out of the main judgment which requires consideration
by the SCA.
20.
The applicants further criticised the main judgment by submitting that the
11
Court did not consider the affidavit of Mr McCarthy to the High Court that the
prosecution process was of the highest integrity whilst he, Mr McCarthy, had ·
time. The submission disregards the fact that when Adv Mpshe made the
decision to discontinue the prosecution did not mention it. The submission
was made when the main application was argued and we did consider it.
21.
The Court in adjudicating the matter, did take into consideration what the SCA
Re. Ex Parte President of.the Republic of South Africa & Others 2000 (2)
SA 674 (CC) at 709 E - H. The Court clearly stated in the main judgment that
Adv. Mpshe's decision to terminate the process due to the alleged abuse or
. 22.
was not mentioned by Adv. Mpshe when he took his decision and same
12
23.
"On the evidence, Mr Msphe did not act overcome (sic) emotional nor·
was he pressured."
Crucially the third respondent further alleged that emotional people often take
Mpshe was angry at the time when he took the decision to discontinue the
prosecution.
24.
We are of the view that the applicants have also raised irrelevant and non-
meritorious factors to try and support their contention and arguments that
25 .
. CONCLUSION
The Superior Cou1is Act has raised the bar for granting leave to appeal in The
J held as follow:
"It is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act. The former
Van Heerden v Cronwright & Others 1985 (2) SA 342 {T) at 343H.
The use of the word "would" in the new statute indicates a measure of
certainty that another court will differ from the court whose judgment is
26.
The applicants are not challenging the orders granted by the Court but they
(i) "the Court of law is the appropriate forum to deal with the abuse of
(ii) "Mr Zuma should face the charges as outlined in the indictment".
14
27.
In reading the judgment holistically it is clear that the Court never created a
Furthermore the court did not interfere with the separation of powers principle
and did not order or direct that the NDPP must continue with the prosecution.
The attack by the applicants based on the above sentences is ill founded.
The said sentences should be read in the context within which they were
made in the judgment and not read in isolation to create a different context:
28.
The authorities relied upon by Adv .. Mpshe do not support an extra judicial
·· termination of the prosecution. Adv. Mpshe relied on English case law and
Hong Kong case law which did not support his decision not to prosecute.
Importantly the said authorities, the circumstances of the case, and the advice·
that the NPA received from their senior counsel supported that the abuse of
process should be dealt with by the Court. Adv. Mpshe's decision was
not brushed off by the Court hence it is stated in the main judgment that
be censured.
15
'~
29.
I...
When the Court deals with an application for leave to appeal, leave may only
be given if we are of the opinion that the appeal would have reasonable
view there are no novel legal issues raised in the matter. The applicants
some selective sentences of the judgment. The fact that the public has an
interest in the matter is not a justification to grant leave to appeal. The matter
is of course important for Mr Zuma. However, if the appeal does not have
30.
carefully considered the authorities referred to and we are of the view that the
31.
prospects of success and we came to the conclusion that there are no merits
our judgment and conclude that the appeal does not have reasonable
prospects of success.
32.
32.1 The applications for leave to appeal by the first, second and third
32.2 The first, second and third applicants are jointly and severally ordered
(
EAPLEDWABA
DEPUTY JUDGE PRESIDENT OF THE GAUTENG DI ISION OF THE HIGH
COURT, PRETORIA
GE C PRETORIUS
JUDGE OF THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
JUDGES P MOTHLE
JUDGE OF THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA