“Ivanka [Trump] is no Princess Margaret and Jared [Kuschner] is not the Duke of Windsor regaling guests with amusing bon mots to a captive audience. No one wants to hear about Sarah Huckabee’s pies or Steven Bannon’s shirts.” A snob like that actually deserves a dynamic duo like them (and may shed light on how President Trump found the traction in the heartland that he did). Javanka can’t protest that they moderated the president, not after his past immoderate weeks of raging against democracy and conniving to subvert it. They can’t retroactively claim some profound but strangled ambivalence about his reign, not after her fangirl phantasmagoria at the Republican convention. No, they have made their bed. Lucky for them, the sheets have a serious thread count.
IN THE NORTH GAUTENG HIGH COURT, PRETORIA
THE ACTING NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS THE HEAD OF THE DIRECTORATE OF SPECIAL OPERATIONS JACOB GEDLEYIHLEKISA ZUMA
RICHARD MICHAEL MOBERLY YOUNG CCII SYSTEMS (PTY) LTD
Second Respondent Third Respondent
First Intervening Party Second Intervening Party
FIRST RESPONDENT’S ANSWERING AFFIDAVIT
I, the undersigned, MOKOTEDI JOSEPH MPSHE SC do hereby make oath and state as follows:
1. I am adult male. I am an Advocate of the High Court of South Africa and am appointed as senior counsel. I am presently appointed as the Acting National Director of Public Prosecutions. My office is situated at Room C02.4 on the ground floor of the VGM Building (c/o Westlake Avenue and Hartley Street), 123 Westlake Avenue, Weavind Park, Silverton, Pretoria. I depose to this affidavit in opposition to the review application brought by the Applicant (‘the DA’) and the First (‘CCII’) and Second (‘Richard Young’) Intervening Parties.
2. The facts deposed to in this affidavit are to the best of my knowledge and belief true and correct and are, save where it is otherwise stated or the contrary appears from the context, within my personal knowledge.
3. In so far as I make reference to statistics or details of decisions taken by members of my staff, or details of individual prosecutions not specifically within my personal knowledge, I rely upon reports from relevant members of my staff or the designated prosecutors and believe that the information furnished by them — which is contained in the official records of the office of which I am the acting head — is reliable and accurate. So as not to burden the Court unnecessarily, I have not attached confirmatory affidavits from these members of staff or prosecutors, but will furnish the Court with such affidavits confirming the veracity of these facts should the Court so require.
4. The submissions of law that I make are made on the basis of legal advice.
5. The DA has brought an application to review, correct and set aside my decision, taken on 6 April 2009, to discontinue the criminal proceedings of the Third Respondent (‘Mr. Zuma’). For convenience I will refer to the decision as ‘the NDPP’s decision’.
6. The NDPP’s decision and the reasons for it are reflected in a statement that I released publicly on 6 April 2009. A copy of the statement is attached to the DA’s founding affidavit and marked “JS10”.
7. This affidavit does not deal with the merits of the review application in full. It deals with three matters which are to be decided in limine before the merits are dealt with. It is filed in accordance with an agreement concluded amongst the parties which was made an order of Court.
8. The affidavit has been filed late — outside the time periods fixed by the Court order. The explanation for the delay is set out in the affidavit of Advocate David Damerell which will be filed together with this affidavit.
9. The matters that are dealt with in this affidavit are:
9.1. the reviewability of the NDPP’s Administrative Justice Act, No. grounds of rationality in terms of the Republic of South Africa, 1996 decision under the Promotion of 3 of 2000 (‘PAJA’) or on the section 33 of the Constitution of (the Constitution)
9.2. that it is appropriate in the circumstances of this case for the Court to decline in limine to exercise its discretion to review the NDPP’s decision in the event that it finds that it is reviewable on any grounds other than bad faith.
9.3. the lack of locus standi on the part of the DA, CCII and Richard Young to review the NDPP’ s decision.
10. The answering affidavit filed on behalf of Mr Zuma sketches the background to this matter. I do not propose to set out the background here as well.
11. The history of the matter has been set out in various affidavits filed several Court proceedings before our High Courts, Supreme Court Appeal and Constitutional Court. I respectfully refer the Court to following decisions which, amongst many other decisions, reflect history of the matter:
11. 1. National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA); and
11.2. Thint (Ply) Ltd v National Director of Public Prosecutions and others, Zuma v National Director of Public Prosecutions and others 2009 (1) SA 1 (CC).
12. I respectfully submit that the history of the matter as captured in the decisions referred to above (and others that the Court will be referred to during argument) is sufficient for present purposes. What is perhaps important is to emphasise that by the time NDPP’s decision was made the criminal proceedings in respect of Mr Zuma had been pending for a long period of time. By the time that the review application is finalised this period would have increased by a not inconsiderable time. If PAJA is found to be applicable and the matter is also subject to judicial review which would in all likelihood include appeals to the Supreme Court of Appeal and the Constitutional Court this period would certainly increase by years. It should be borne in mind that the period in which to request reasons for an administrative action has been extended to a period of 180 days. This has implications for an accused person’s fair trial rights. The fair trial rights should feature prominently in this Court’s exercise of its discretion to review and set aside the NDPP’s decision.
PROSECUTORIAL DECISIONS ARE NOT REVIEWABLE UNDER PAJA
The powers of the NPA regarding the institution of criminal proceedings
12. The NPA alone has power to institute criminal proceedings on behalf of the State, and to carry out any necessary functions incidental to instituting criminal proceedings in terms of section 179(2) of the Constitution. In this regard section 20 of the National Prosecuting Authority Act, 32 of 1998 (‘the NPA Act’) provides that the power, which is exercised on behalf of the Republic, vests in the NPA to:
12.1. institute and conduct criminal proceedings on behalf of the State;
12.2. carry out any necessary functions incidental to instituting and conducting such criminal proceedings; and
12.3. discontinue criminal proceedings.
13. South Africa does not, in principle, follow a system of compulsory prosecution. The NPA has the discretion whether or not to institute and conduct criminal proceedings or whether to discontinue them. It is not compelled to institute criminal proceedings in respect of all matters brought to its attention irrespective of their merits, or to continue criminal proceedings which are instituted to their finality. The NPA sometimes declines to prosecute in what it considers to be minor matters because of limited resources and so as to prioritise other matters.
14. The National Director of Public Prosecutions (‘the NDPF’) has an obligation under section 21(1) of the NPA Act, with the concurrence of the Minister of Justice and Constitutional Development (‘the Minister’) and after consulting the Directors of Public Prosecutions (‘the DPI”), to determine prosecution policy and issue policy directives. The prosecution policy and the policy directives must be observed in the prosecution process. This obligation derives from section 179(5) of the Constitution.
15. A copy of the Prosecution Policy that has been determined in accordance with the provisions of sections 179(5) of the Constitution and 21(1) of the NPA Act is attached as ‘MJM1’. I also attach a copy of the applicable Policy Directives as ‘MJM2’ and a copy of the Code of Conduct for Members of the NPA (‘Code of Conduct’) as ‘M.JM3’.
16. There are also United Nations Guidelines on the role of prosecutors, a copy of which I attach as ‘MJM4’. To a large extent these guidelines are similar to the prosecution policy and policy directives referred to above, or incorporate similar principles. This has been amplified by a Resolution of the 17th Session of United Nations Commission of Crime Prevention and Criminal Justice held at Vienna (14-18 April 2008)- Strengthening the rule of law through integrity and capacity of prosecution services which incorporates Standards of Professional Responsibility and statement of the Essential Duties and Rights of Prosecutors. This I attach as ‘MJMS’.
17. In my discussion of the issues that are addressed in this affidavit Twill refer to certain provisions of annexures ‘MJM1’, ‘MJM2’, ‘M.JM3’, ‘MJM4’ and ‘MJM5’. The content of the annexures will also be referred to in argument before the Court.
The Prosecutorial Decision
18. The Prosecutorial Decision in relation to prosecutions is not divisible. It is one decision with two possible outcomes, to prosecute or not to prosecute. The outcomes represent two sides of the same coin. The considerations that inform such a decision apply irrespective of the outcome.
19. The decision not to prosecute can be classified into three different types. They are:
19.1. the decision to institute criminal proceedings;
19.2. the decision not to prosecute or to withdraw charges before the accused pleads; and
19.3. the decision to stop a prosecution after the accused has pleaded:
20. The criteria governing the decision to prosecute are set out in ‘MJM1’.
21. On the available statistics the NPA receives about 1,5 million criminal cases a year. I will refer to these as criminal matters.
22. About I million of the 1,5 million criminal matters constitute cases where persons allegedly involved in the commission of crimes are charged by the police. It should be borne in mind that in certain of these matters there are multiple accused and multiple charges.
23. The other 500 000 criminal matters are ‘decision dockets’, i.e. where there is an allegation of the commission of a criminal offence but nobody has yet been charged. The same considerations as to multiplicity of accused and charges are also applicable here.
24. The 1,5 million criminal matters range from serious to less serious cases. They would include matters which are highly sensitive and matters which are complex.
25. A prosecutorial decision is required in all 1,5 million matters. As has been observed above a number of these matters involve a number of accused and potential charges. In all such instances, a decision has to be taken as to:
25.1. whether or not to prosecute;
25.2. who to prosecute; and
25.3. for what alleged criminal offence.
26. These decisions are necessarily complex and are informed by a number of considerations, some of which have to be weighed against others. They do not only involve the assessment of available facts and/or evidence. They also involve value judgments and policy considerations which are informed by the public interest. The Prosecution Policy (MJM1, paragraph 4) provides that 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. There is no rule in law which states that all provable cases brought to the attention of the prosecuting authority must be prosecuted. On the contrary any such rule would be too harsh and impose an impossible burden on the prosecutor and on a society interested in the fair administration of justice.
27. Between April 2008 and March 2009, the NPA diverted 43 729 criminal matters in the lower courts. Provisional figures for the current year indicate that this trend will increase. When the Child Justice Act, No.75 of 2008 comes into operation on 1 April 2010 it is anticipated that there will be a further increase. Such diversions are dealt with in Part 7 of the Prosecution Directives. A diversion entails the disposal of a criminal matter other than through court proceedings. The matter is withdrawn on condition that the accused participates in a particular programme. A decision to divert a criminal matter entails a decision not to prosecute.
28. Between April to June 2009 the NPA finalised in the lower courts 23 239 cases through alternative dispute resolution mechanisms. This excludes traffic matters. Finalising a matter through alternative dispute resolution mechanisms also entails a decision not to prosecute.
29. Paragraph 4 of the Prosecution Policy makes it clear 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.
30. In instances where the criminal matter is complex and there are multiple alleged offenders, a decision may, for example, be taken not to prosecute one of the alleged offenders in exchange for assistance and cooperation to successfully investigate and prosecute the remaining offenders. At present the NPA is dealing with 54 racketeering matters, 75% of which rely on the evidence of witnesses testifying in terms of section 204 of the CPA. This is a sensitive decision in respect of which Courts should be slow to intervene in the absence of bad faith. The benefit to the public interest is obvious where the decision facilitates successfiul investigations of crime and the prosecution of perpetrators. These decisions are taken in the ordinary course of a prosecutor’s work.
31. A decision may also be taken to prosecute the same accused person on one charge and not others.
32. Of the 1,5 million criminal matters, 300 000 to 400 000 cases are withdrawn per year. In an audit conducted during September 2007 it was established that about 25% of the criminal matters were withdrawn at the request of the complainant. About 21% were withdrawn because, in the assessment of the prosecutor, there was no prima facie case. In about 5% of the matters the withdrawal was because the magistrate refused a postponement and 4% because a witness statement was outstanding. I attach annexure ‘MJM6’ which is a slide reflecting the audit and the reasons for the withdrawals.
33. In the overwhelming majority of criminal matters prosecutions are discontinued by the withdrawal of charges in terms of section 6(a) of the Criminal Procedure Act, 51 of 1977 (‘the CPA’), i.e. before the accused pleads. A negligible number of the cases are stopped after the accused has pleaded, i.e. in terms of section 6(b) of the CPA. It is common cause that section 6(b) of the CPA is not relevant for the present review application as the NDPP’s decision was taken before Mr Zuma could plead to the charges subsequently withdrawn.
34. In both instances (i.e. under section 6(a) or 6(b)) the decision to withdraw charges or to stop the prosecution involves value judgments and policy considerations, an evaluation of the sufficiency of evidence, the strength of the case and moral blameworthiness. It also involves a consideration of the public interest in the continuation or the stopping of a criminal prosecution. These same considerations inform a decision to prosecute.
35. Charges may be, and are often, withdrawn following representations by an accused person. The policy of the NPA (which is reflected in Part 6 of the Policy Directives) is that representations warrant earnest attention. The right to make representations is also recognised in section 1 79(5)(d) of the Constitution and section 22(2)(c) of the NPA Act in the circumstances described.
36. Although it is desirable that representations be made in writing, at lower court level, informal approaches are made by for example legal representatives acting on behalf of accused persons, for purposes of getting charges withdrawn, prosecutions continued on less or lesser charges or prosecutions stopped. These approaches are readily accommodated, depending upon the circumstances of each case.
37. Representations are mostly made on a confidential basis and are treated as such by the NPA. If made by an accused person, the representations are mostly made on a ‘without prejudice’ basis. The privilege attaching to them is lost if the person making the representations subsequently acts fraudulently or in bad faith. Part 6 of the Policy Directives confirms this approach.
38. Mr Zuma also made his representations on a confidential basis and without prejudice. This was confirmed to the DA in correspondence from the NPA’s attorneys to the DA’s and Mr Zuma’s attorneys. Mr Zuma in turn confirmed the position. I attach the correspondence as ‘MJM7’ and ‘MJM8’ respectively. This version cannot be contested by the DA.
39. The NPA and accused persons require the guarantee of confidentiality and privilege in order to conduct full and frank discussions to determine whether or not, and for whatever legitimate reason, a criminal prosecution should be stopped or continued with.
Difficulties with judicial review under PAJA or for rationality
40. If a decision to stop or discontinue a prosecution is subject to judicial review on the wide grounds under section 6 of PAJA, and on the full record of proceedings before the decision maker, then the guarantee of confidentiality and privilege will be completely lost. On the other hand a proper judicial review under PAJA is not possible without a full record of the proceedings sought to be reviewed and corrected. The solution to the conundrum has not escaped the legislature. It has excluded prosecutorial decisions from the ambit of PAJA under section 1(b)(ff) of PAJA.
41. The exclusion of prosecutorial decisions from the ambit of PAJA is for a good reason. Such exclusion includes both decisions to prosecute and not to prosecute or not to continue a prosecution. Although this is a matter for legal argument, I am advised that it is appropriate to summarise the NPA’s arguments on the issue, as I do below.
43. The considerations that inform a decision whether or not to prosecute or to continue with a prosecution involve value judgments and policy considerations that do not make themselves amenable to judicial review on the wide grounds under PAJA. To pose a rhetorical question: How is a judicial officer to determine whether it was a reasonable decision (which another reasonable decision maker could have taken) not to proceed against a particular alleged offender because the investigators and the prosecuting team regard his cooperation to be sufficiently vital in order to secure a conviction against other alleged offenders and to prevent crime?
42. If PAJA were to apply to prosecutorial decisions (including decisions not to continue a prosecution), its fair process provisions in section 3 would apply. The NPA would by law be required to give every person whose rights and legitimate expectations may be adversely affected by a decision not to prosecute or not to continue with a prosecution an opportunity to be heard as required by section 3 of PAJA. A departure from such a requirement would not be justifiable if it constitutes a complete denial of an opportunity to be heard. Thus section 3(4) of PAJA is of no assistance. This is because a prosecutor’s decision to depart from the provisions of section 3(2) of PAJA (in terms of section 3(4)) would itself be open to review under PAJA.
43. The application of section 3 would necessitate a doubling of the number of prosecutorial staff to cope with the increased administrative burden.
44. If section 3 of PAJA applied, the option of reconsidering the continuation of criminal prosecutions upon representations made by an accused person would be too unworkable and cumbersome. The identity and number of persons whose rights could be affected by decisions of this kind would be difficult to determine and manage. Informal approaches by legal representatives on behalf of accused persons at the lower court level would simply have to cease to exist as these would become protracted and cumbersome due to the need to afford affected persons an opportunity to be heard. Yet such informal approaches serve the administration of justice well and help reduce backlogs in the criminal justice system.
45. The application of PAJA both in relation to the fair process provisions in section 3, the wide grounds of review, the generous time limits for bringing review applications and the time it takes to finalise reviews through the Court system — would result in infinite delays in the criminal justice system. At present a total of 26 142 (about 15, 5%) out of a total of 168 126 cases have been on the roll for more than six months as at the end of June 2009 in the District Courts. In the Regional Courts a total of 16 030 (about 32%) out of 49 912 cases have been on the roll for more than 9 months as at the end of June 2009. A joint project involving the Department of Justice and Constitutional Development, the NPA and the Legal Aid Board has been instituted to reduce the backlogs and to expedite the finalisation of cases. The project has had a significant impact but the problem is ongoing. The application of PAJA will significantly exacerbate the problem of backlogs and make them completely unmanageable. This would have a major impact on the number and the rights of awaiting trial detainees.
46. If other accused are entitled to challenge prosecutorial decisions (such as a decision not to prosecute other co-accused) — for example in organised crime matters — they could utilise the mechanism of review to delay criminal proceedings against them and to gain access to information that may jeopardise the State’s case against them. The latter will be achieved through access to a review record.
47. The application of PAJA would also impact on the ability of prosecutors and the Courts to finalise criminal matters. Between April and June 2009 the lower courts have finalised 103 224 matters and have received 249 355 new matters.
48. A further problem with the application of PAJA to prosecutorial decisions relates to the remedies that a Court can grant in terms of section 8 of PAJA. In terms of section 8(l)(a)(ii) of PAJA a Court would be able to direct the prosecutor to act in a manner that it requires — which could include continuing with a prosecution or reinstating a prosecution that has been stopped. In terms of section 8(1)(c)(ii) a Court would be able, in exceptional circumstances, to substitute the decision of the prosecutor to withdraw or to stop a prosecution with a decision to continue or reinstate the prosecution. This could never have been the intention of the legislature. It goes against the mandate to prosecute or not to prosecute that is conferred on the NPA in terms of section 179 of the Constitution.
49. I respectfully submit that all of the above support the submission that the intention of the legislature was to exclude all prosecutorial decisions from the ambit of PAJA. In summary and in addition to what has been set out above, the reasons for this submission are as follows:
49.1. There is no distinction in the nature of the considerations that inform a decision to prosecute as those which inform a decision not to prosecute or not to continue with a prosecution. All of the decisions take into account the merits of the case, the public interest and policy considerations.
49.2. In the example given of an alleged offence with multiple alleged offenders, the decision to prosecute one alleged offender and not his co-perpetrator (where the offence and the likely evidence are substantially similar or identical) are in essence one decision with two aspects to it — two sides of the same coin.
49.3. A decision not to prosecute or not to continue a prosecution in victimless crimes does not adversely affect the rights of any person. Where there is a victim — an identifiable person whose rights are peculiarly adversely affected, i.e. with a substantial and peculiar interest in the decision – the law provides a remedy in the form of a private prosecution in terms of section 7 of the CPA. Such rights can be vindicated under section 7 of the CPA and the adverse effect for purposes of PAJA is removed.
49.4. The fair trial rights of an accused person under section 35 of the very long to come before the Courts — whoever is to blame. A right of judicial review which is exercisable after the lapse of a number of years (in which any person is entitled to review and set aside any decision to discontinue such a prosecution on the wide grounds Constitution are vital to the assessment of the issue — i.e. the application of PAJA. Section 35(3) of the Constitution protects the right of every accused person to a fair trial, which includes ‘(d) to have their trial begin and conclude without unreasonable delay’. PAJA permits a period of 180 days (which can be extended if the interests of justice so require) in which to launch a review of administrative action. As in the case of Mr Zuma a trial may take under PAJA) would undermine the right guaranteed under section 35(3)(d) of the Constitution. PAJA ought not to be construed in a manner that does not properly balance and protect the rights in the Bill of Rights, including the right in section 35(3)(d). The exclusion in PAJA of prosecutorial decisions strikes the necessary balance. If prosecutorial decisions are reviewable it should be on very narrow and limited grounds. This would mean that judicial reviews would be less frequent and would pose less threat to the rights of accused persons under section 35(3) of the Constitution.
49.5. To read PAJA to apply to all decisions not to prosecute and to discontinue prosecution (i.e. to withdraw charges) would undermine the proper administration of justice. Representations made on a confidential and without prejudice basis would have to be disclosed in order to permit an assessment of the decision by a judicial officer. This consideration too shows that a narrow interpretation of the exclusion of prosecutorial decisions from PAJA to only relate to decisions to prosecute is not justified. It is prosecutorial decisions that are excluded.
Review under the Constitution for rationality
50. Prosecutorial decisions are not reviewable for rationality under PAJA or the Constitution.
51. It is correct that under the Constitution rationality is a minimum threshold requirement for all exercises of public power. Prosecutorial decisions involve the exercise of public power.
52. Section 33 of the Constitution protects everyone’s right to administrative action that is lawful, reasonable and procedurally fair. PAJA gives effect to the rights in section 33. It is intended to, and does, cover this field — i.e. the protection of the rights in section 33.
53. Review of administrative decisions on the ground of rationality is provided for in section 6(2)(f)(ii) of PAJA. A person who challenges administrative action on the ground of rationality does not have to, and cannot, rely directly on the Constitution when PAJA already makes provision for a review based on rationality. The rationality ground under PAJA is the same as the rationality ground under the Constitution.
54. In the case of prosecutorial decisions, the legislature has excluded prosecutorial decisions (including decisions not to prosecute) from the ambit of PAJA. This means that such decisions cannot be reviewed on the ground of rationality under PAJA.
55. It is not permissible or desirable in the circumstances to go behind the exclusion in PAJA and to rely on rationality under the Constitution without challenging the constitutionality of the exclusion from the ambit of PAJA of prosecutorial decisions. PAJA covers the ground and the legislature has decided to exclude prosecutorial decisions from its ambit, including decisions not to continue criminal prosecutions as submitted above. For the reasons that a PAJA review is unavailable, a rationality review under the Constitution is also unavailable. This will be addressed further in legal argument.
56. There are other reasons why it would be inappropriate to subject prosecutorial decisions to judicial review on the ground of rationality. Rationality review requires an assessment of the presence or absence of a rational connection between the decision and the reasons given for it, as well as a rational connection between the decision and the material properly placed before the decision maker. To conduct the assessment a judicial officer must see and consider the material that was placed before the decision maker. In cases of decisions to discontinue prosecution after the accused makes representations, such material would include representations made on a confidential and without prejudice basis. But such information is privileged and cannot be disclosed to a Court and third parties. A rationality review cannot be properly conducted in such circumstances. This is a justifiable limitation under section 36 of the Constitution on the right to have the exercise of public power reviewed for rationality. It serves an important governmental purpose. It facilitates full and frank discussions and disclosures between the accused person and the prosecutor in the interests of the proper administration of justice.
57. It is important to point out that a full record extends beyond the representations made by Mr Zuma which were made on a confidential basis and without prejudice. It would include the full record of the investigations against him which led to the decision to institute criminal proceedings. The disclosure of such a record will not only breach and undermine Mr Zuma’s rights, it will be invidious. His personal records of a highly sensitive and confidential nature will be laid bare for purposes of reviewing whether or not my decision under attack was rational. This is not justified.
58. In the case of Mr Zuma and Thint, computers and computer records — the entire intranet of Thint — were seized. These contain a large amount of documents and data. The NPA conducted searches of these using key words and extracted relevant documents. There are large amounts of information and data that are of a personal nature that have not been screened for admissibility and so forth. The personal data relate to information about individuals not involved in the criminal proceedings or in this review application. These materials cannot be handed over or disclosed as part of a review record. It would be logistically cumbersome for the NPA to screen these properly in order to hand over only that which is relevant to the review application as part of the record.
Narrow and limited grounds of review
59. What remains is whether decisions not to prosecute or to discontinue a prosecution could ever be challenged in Court. They could, but only on very narrow grounds such as bad faith. This is the approach that our courts have always adopted in relation to prosecutorial decisions, and it is the approach adopted in other jurisdictions.
60. This matter will be addressed in written and oral argument.
61. In the NPA’s submission, all prosecutorial decisions fall outside the ambit of PAJA, as do decisions to prosecute. The reasons for this submission have been set out above and will be developed further in legal argument.
LOCUS STANDI- THE DA
62. There are no rights of the DA that are adversely affected by the NDPP’s decision.
63. The legal standing of the DA to review the NDPP’s decision under PAJA must be established in terms of PAJA and not in terms of section 38 of the Constitution. Under PAJA the DA must show that it has a direct and substantial legal interest in the review of the NDPP’s decision. This it lacks as the NDPP’s decision does not adversely affect any of its legal rights.
64. The DA must also show a direct and substantial legal interest in reviewing and setting aside the NDPP’s decision on any other basis permissible in law, i.e. bad faith. It cannot establish such a legal interest because the Decision does not adversely affect any of its rights.
65. The other way to assess the question whether the DA has a direct and substantial legal interest is to ask whether it could qualify to conduct a private prosecution in terms of section 7 of the CPA. It cannot qualify. This is in a sense confirmed by the statement in paragraph 17 of the founding affidavit that ‘the DA has no other means to challenge the decision under review save by approaching this Court’. This is not enough to confer standing for purposes of judicial review. Other persons, who can properly qualify themselves under relevant statutes, would have such standing for an appropriate remedy on grounds permissible in law (which are the narrow and limited grounds as submitted above).
66. In paragraphs 16 to 21 of its founding affidavit the DA sets out some bases for claiming that it has legal standing to bring the review application in its own interests. The contentions that the DA puts up do not place it in a position which is different from that of any member of the public. Nothing that it says demonstrates a direct and substantial legal interest. That it made representations does not change this position.
67. The DA attempts to rely on section 38 of the Constitution. To successfully invoke the provisions of section 38 of the Constitution the DA had to set out facts which satisfy the requirements of that section. For instance, it would have had to set out the rights in the Bill of Rights which have been infringed or threatened by the Decision. None exist, and none has been made out in the founding affidavit. Generalised contentions based on the rule of law and legality, and it (the DA) being the official opposition, do not avail the DA.
68. The Court should be cautious to afford political parties an opportunity to politicise the criminal justice system in the guise of allegedly protecting the rights of the public. This may open the door for the Courts to be abused improperly for political campaigns and political gain.
69. I am advised that these are matters for legal argument and will be dealt with in argument before the Court.
LOCUS STANDI – MR YOUNG AND CCII
70. I point out that the purpose of the intervention applicatiou is expressly to obviate difficulties that the DA has with regard to standing to review the Decision. This is made clear in paragraph 6 of the founding affidavit in the intervention application.
71. The position of Mr Young and CCII is not different from that of the DA. They also lack locus standi to review the NDPP’s decision. Their application for intervention should be dismissed for this reason alone. None of their rights are adversely affected by the NDPP’s decision.
72. Like the DA, both Mr Young and CCII cannot qualify to conduct a private prosecution in terms of section 7 of the CPA.
72.1. First, Mr Young in his personal capacity cannot show a substantial and peculiar interest in the subject matter of the prosecution of Mr Zuma.
72.2. Second, any injury claimed by Mr Young (through CCII and together with CCII) is not causally connected to the offence allegedly committed by Mr Zuma.
72.3. Third, CCII is not a ‘private person’ as intended by section 7 of the CPA.
73. Mr Young and/or CCII were not complainants in the specific matter involving Mr Zuma and Thint. Even though he was on the list of witnesses in both the matters involving Mr Shaik and Mr Zuma, Mr Young was not called as a witness in the case of Mr Shaik because of the lack of a direct link between his evidence and that matter. It is highly unlikely that he would have been called as a witness in the prosecution of Mr Zuma had that matter proceeded. The basis for his exclusion would have been the same in both matters i.e. the lack of a direct link between his evidence and that matter.
74. Mr Young’s complaint was in respect of an award in the arms deal in one part of what is known as the German leg of the Arms Deal investigation (the German Frigate Consortium). The matters involving Mr Shaik and Mr Zuma arose out of the so-called French leg. Any injury that Mr Young and CCII allege (which is denied) is not causally connected to the offence allegedly committed by Mr Zuma. These matters are dealt with in the affidavit of Mr Hulley as well. The contentions raised there are correct.
75. Most importantly, the offence allegedly committed by Mr Zuma is an offence within the public domain. Mr Young and CCII cannot show that they suffered any injury, causally connected to the alleged offence, which goes beyond that which the DA alleges to have been suffered by the public generally. They do not stand in a different position from any busybody who comes to Court and wishes to review the NDPP’s decision. The law does not permit sjah busybodies to come to Court for lack of locus standi — even if they rely for their contentions on the principles of legality and the rule of law under the Constitution.
76. Similarly, the fact that Mr Young made representations in his personal capacity or on behalf of the CCII does not clothe him with a direct and substantial legal interest to review the NDPP’s decision.
77. Mr Young and CCII cannot rely on section 38 pf the Constitution for the reasons advanced in respect of the DA.
EXERCISE OF THE COURT’S DISCRETION
78. The Court has a discretion whether or not to grant the remedy of review even if grounds for review are made out.
79. In the event that the Court finds that the NDPP’s decision is reviewable under PAJA or on rationality, it is respectfully submitted that the application should nevertheless be dismissed on the basis that the Court will ultimately exercise its discretion against granting the remedy of review.
80. A successful review will mean that the NPA has to reconsider the decision whether or not to reinstate charges against Mr Zuma. In terms of paragraph of the Prosecution Policy, people should be able to rely on and accept decisions made by the NPA. Normally when a suspect or an accused is informed that there were will not be a prosecution or that charges are withdrawn, that will be the end of the matter. In this case the charges have also had a long and complex history. The accused and the public have a legitimate expectation that the matter is final and the prosecution will not be proceeded with.
81. Any reconsideration will in all probability have to happen a number of years from now if the DA succeeds with its review application. The matter would end up in the Constitutional Court and this may take between two and three years to finalise.
82. If a decision is taken to reinstate charges against Mr Zuma, his fair trial rights in terms of section 35(3)(d) of the Constitution would quite evidently be infringed. He would be compelled to stand trial after the lapse of a considerably lengthy period of time — whatever the earlier causes of the delay. This is undesirable and ought not to be permitted to happen. This is precisely the reason why prosecutorial decisions ought only to be open to review on very limited and narrow grounds.
83. The balancing of the fair trial rights and rights of review is an important consideration which is mandated by the Constitution itself. There is no reason why the Court ought not to conduct this balancing act at this stage and conclude that it warrants the dismissal of the review application in the exercise of the Court’s discretion. It is pre-eminently in the interests of justice to do so.
84. This matter will be addressed further in legal argument before the Court.
85. I respectfully submit that the review application should be dismissed with costs at this stage of the proceedings on the grounds set out above.
86. There is no justification for continuing the review application and compelling the filing of a record which cannot lawfully be filed because of conditions of confidentiality and privilege which have been addressed above. Doing so will not further the interests of justice. A PAJA and rationality review on the record ought to be dismissed for this reason as well. It is simply not suited and applicable to the NDPP’s decision and prosecutorial decisions generally.
I CERTIFY THAT THE DEPONENT ACKNOWLEDGED THAT SHE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT, WHICH WAS
SIGNED AND SWORN TO BEFORE ME AT PRETORIA, ON THIS THE …. DAY OF OCTOBER 2009, AND THAT THE PROVISIONS OF THE REGULATIONS CONTAINED IN GOVERNMENT NOTICE R1258 OF 21 JULY 1972, AS AMENDED FROM TIME TO TIME, WERE COMPLIED WITH.