I will be very interested to see whether the PAJA argument holds, but I presume that cannot be the only leg to stand on. Intuitively,the Mpshe decision was more “executive” than “admnistrative”, but then working from a plain man’s sense of fair play, your point that Mpshe acted ultra vires is pretty plain.

However, I feel that there is a constitutional argument here as well, albeit slightly derived. It is the Constitution that discusses the requirements, not only of freedom from “fea or favour”, but also of the need to act in accordance with prodecutorial policy.

As you have so clearly enunciated, it would be very hard to demonstrate that any policy was adhered to. That there wasno reference to the Policy in Mpshe’s statement is a good clue, but I think that he would find it difficult to argue that he had real (but unstated) motivated grounded in the Policy. Although, maybe Kemp J Kemp could come up with something creative….

And the if one reads the reasoning advanced, it is quite easy to argue that there is no rational connection between the “reasons” advanced and the decision made (no actual prejudice suffered, bette left to a judge, using a sledgehammer to adjust a drawing pin on a noticeboard, etc, etc). If there is no rational connectuion between the reasons advanced and the decision taken, then the ACTUAL reason for making the decisio must have been something else. Something undeclared. And if this is the case, then on a preponderance of probabilities, this reason must have had to do with either “fear” or “favour”. Hence the decision is uncostitutional.

Of course, I am ruling out the notion that the decision was not rationally taken, that it was arbitrary (like the result of tossing a coin) – this would likewise be easily shown to be unconstitutional.

The strong argument against invasion had little to do with the cause to invade; it was the absence of an exit strategy. All other elements for a successful campaign were in place, just this rather annoying detail.

The rest is history. After a sharp and very successful campaign, the USA is still stuck in Iraq without any clear exit strategy.

I can’t help wondering if Jacob Zuma isn’t going to find himself in a similar situation.

‘…retention of cabinet Ministers who were not up to the task…’

And under Zuma, the instatement of cabinet ministers who is supposed to be in jail.

Still I cant choose between the incompetence under Mbeki or the Criminals under Zuma.

Beneath the reconciliatory smiles and honeyed tones, there lurks a very bitter man indeed. That much is quite clear. Zuma is bitter, and he’s out for revenge. To those who don’t believe that: wait and see. The people of South Africa will have to wait a little longer for that better life. For now, Zuma has other things to take care of.

Neither question will be answered definitively with reference to the Hong Kong case as SA law will apply. But the reasons given by Mphse will be the starting point for either enquiry and could help to show that he did not act legally when he dropped charges, either because he misconstrued the legal rules or failed to follow the legal rules to which he was bound. So although these revelations are highly embarrassing to Mpshe and the NPA I am not sure it will have direct legal application although it might help to show that Mpshe did not act in accordance with the law when he made the decision and could be of some persuasive value in any case brought.