NPA appeal: Is Nicholson embarrased yet?

The NPA Heads of Argument in its appeal of the Nicholson judgment to the Supreme Court of Appeal (SCA), makes for interesting and convincing reading. The NPA is appealing not only the legal findings made by Nicholson, but also the factual findings about the “political interference” into the decision to charge Mr Jacob Zuma.

I must say, the challenge to the finding by Nicholson that the NPA Act required the NDPP to give Mr. Zuma a hearing before charging him at the end of last year, provides a convincing – even devastating – critique of the lower courts reasoning.

This part of the appeal attacks the underlying assumptions of the Nicholson judgment that section 179(5)(d) of the Constitution was aimed at protecting the human dignity of the accused, noting that such an interpretation was completely incompatible with the history of the section and also did not make logical sense. As I have argued before, this section was included in the Constitution to limit the right of the NDPP to review a decision by one of the Provincial Directors of Public Prosecution either to prosecute or not to prosecute someone and had nothing to do with the rights of the accused, which come into play only once a person is actually charged and is required to defend him or herself in court.

Section 179(5)(d) – on which Nicholson relied – states that the NDPP may review a prosecution decision “after consulting the relevant Director of Public Prosecutions” and after giving a hearing to the DPP, the accused and the complainant. But in this case the decision was not a review of a DPP, but an original decision by the NDPP to prosecute.

It points out that Mr Zuma’s (and Nicholson’s) interpretation of s 179(5)(d) gives rise to unexplained anomalies such as the following:

34.1. Why protect an accused when an earlier prosecution decision is reversed but not when the first prosecution decision is taken?
34.2. Why protect an accused when the NDPP reverses an earlier prosecution decision but not when a DPP or a prosecutor does so?
34.3. Who is “the relevant Director of Public Prosecutions” with whom the NDPP must consult in terms of section 179(5)(d) when the earlier decision was his own?
34.4. Why must the NDPP consult with the accused before he withdraws a pending prosecution against him, that is, before taking a decision favourable to the accused?
34.5. Conversely, why must the NDPP consult with the complainant before he decides to institute a prosecution, that is, to take a decision favourable to him?

It also points out that Nicholson’s tortured interpretation of this section (replicated in the NPA Act) made so little sense that it required him to read words into the Act. But one cannot read words into a statute unless one has found the provision in the Act was unconstitutional. Nicholson thus wrongly used the mechanism of “reading in” – which just proves how untenable his interpretation of the relevant section was.

It also points out that PAJA explicitly states that a decision to institute or continue a prosecution does not constitute administrative action and that the findings by Nicholson that Mr Zuma had a legitimate expectation to be heard could therefore not be sustained because PAJA did not apply to the decision to institute a prosecution against Mr. Zuma.

These arguments seem so obvious to me that I find it a bit embarrasing that a judge of the High Court could have ignored them to find in favour of Mr Zuma.

Interestingly, the NPA is also appealing the findings made by Nicholson about the “political interference” of Mr Mbeki and his Ministers in the decision to prosecute Zuma thus traversing the same ground that would have been covered by Mbeki’s application to the Constitutional Court. Here the technical arguments that the Nicholson findings went beyond what Mr Zuma had pleaded and that it was required in law to accept the version offered by the NPA, also seem rather convincing to me.

It is only when the appeal deals with the specific factual findings of political interference, that the arguments of the NPA seem even remotely questionable. Nicholson made much of the fact that the Minister of Justice attended the briefing where Mr Ngcuga announced that he would not prosecute Zuma despite the fact that a prima facie case existed against him.

In this regard the NPA points out that in terms of s 179(6) of the Constitution and s 33 of the NPA Act, the Minister of Justice exercises “final responsibility” over the NPA. It argues that this means there must be a working relationship between the Minister and the NDPP. When the NDPP decides to arrest and prosecute the Deputy President, the duties of the NDPP and the Minister would at least include the following:

102.1. The NDPP must keep the Minister informed of the process towards the arrest and prosecution of the Deputy President to enable the President and his cabinet to address and deal with the fall-out of such a dramatic event.
102.2. The Minister must in turn protect the NDPP against political pressure and make it clear to him that he enjoys government’s support whatever his decision because the Constitution requires him to act without fear, favour or prejudice.
103. We do not know why Mr Maduna attended the press conference or why Mr Ngcuka thanked him because nobody ever raised the issue and the NDPP was never called upon to explain those things. What one can say however is that they were perfectly consistent with the proper performance of their functions by the Minister and the NDPP. There was nothing in their conduct to warrant the High Court’s sinister inferences.

Here I am not so sure I agree with the submissions of the NPA. Like Nicholson, I believe it was extremely  unwise of the Minister to be present at this briefing and for Ngcuka to thank the Minister for his support. But whether that warranted a finding of political interference by a court of law is at least a debatable point.

In any event, it is now up to the SCA to consider this appeal. I was already wrong once in predicting the outcome of this case, but let me go out on a limb and predict that on the law it is difficult to see how the SCA will not overturn the Nicholson judgement. But the wonder of law is that different people can see the same legal principles in different ways, so it is up to the five judges of the SCA to make the decision they believe to be correct based not on political considerations but on the law. Let’s hope they do that and that everyone will accept the decision.

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