As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
When the North Gauteng High Court declared invalid the decision by the then acting National Director of Public Prosecutions (NDPP) to discontinue the prosecution of President Jacob Zuma for corruption, racketeering and fraud the original decision to charge Zuma was reinstated. This means at present there is a legally valid decision by the NPA to charge President Zuma for various criminal offences. The NPA is now legally obliged to indict the President – unless it appeals the judgment.
President Jacob Zuma has never provided any explanation for why he took money from Schabir Shaik and an arms deal company and then used his public office to do favours for Shaik and the company. Neither has he explained why he met with a representative of an arms deal company whom the High Court had found used Schabir Shaik to bribe the President.
President Zuma has not – as one would expect from an innocent person – been enthusiastic to explain why he is innocent. He has not, to put it mildly, demonstrated an eagerness to clear his name through the judicial process. In fact, in 2007, Zuma denied that he had ever demanded to have his day in court. “I was being asked in public about allegations against me and I said: ‘If I have to answer any allegations I will do that in court’. I never said that I want to have my day in court.” In other words, the President has consistently declined to defend himself in public, arguing that he will only do so if forced to before a court of law.
Moreover, those who alleged a vast conspiracy against President Zuma have never claimed that any of the proven facts on which the charges are based were fabricated or concocted. The alleged conspiracy is not based on an argument that the allegations regarding bribery, corruption and racketeering made by the NPA are not true. They are in effect based on the curious argument that there was a “political conspiracy” against Zuma because he was not improperly and unlawfully protected from prosecution.
As the NDPP is constitutionally obliged to act without fear, favour or prejudice, the argument of a conspiracy is really based on a complaint that previous National Directors of Public Prosecutions had failed to subvert their oath of office as they were “required” to do because of President Zuma’s position and standing within the governing party.
What we now know in the light of the High Court judgment in Democratic Alliance v Acting National Director of Public Prosecutions and Others is that the then acting NDPP had acted in complete disregard of the law when he irrationally decided to drop the charges against President Zuma. He also appears to have acted in a dishonest manner. He did what those who claim there is a conspiracy against President Zuma would have expected any NDPP to do (but which he was not constitutionally permitted to do), namely to protect President Zuma from prosecution.
When he dropped the charges the acting NDPP completely ignored the Supreme Court of Appeal (SCA) judgment in the NDPP v Zuma where the Court held:
A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded… (Court emphasis)
It is perhaps for this reason that the acting NDPP quoted from a Hong Kong judgment and from a British judgement when he dropped the charges against Zuma. As the binding South African precedent did not authorise the decision he was taking, he had to find some legal justification further afield.
However, when citing these foreign judgments, the acting NDPP “surprisingly omitted to mention” that both the judgments held that the determination of the principles of abuse of process was an exercise for a court of law and not an extrajudicial pronouncement to be made by a body like the NPA.
Moreover, as the High Court explained, the acting NDPP “disregarded, without given reasons”, the recommendation of the prosecution team that, even if the allegations regarding possible meddling in the decision of when to charge Zuma were true, the decision to stop the prosecution was to be made by a court of law.
The Court in the [British judgment] also held that the application of the abuse of process involved a balancing of two imperatives. The one imperative is where the Court does not act on misconduct and malpractice by law enforcement agencies. A failure to do so will raise the ire of the public. The second imperative is the instance where the trial is discontinued, such as in this case. In such an event 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. Mr Mpshe disingenuously omitted to consider or deal with this second imperative in his media address.
It is not only the inexplicable (and we now know, irrational) decision by the then acting NDPP to drop all charges against President Jacob Zuma that places a question mark over his integrity.
As the High Court pointed out, the acting NDPP presented three contradictory versions to the court about who took the decision to delay the service of the indictment and why. First Mpshe claimed he alone took the decision (but this version would have been fatal to the NPA and President Zuma’s case), then he claimed he took the decision after being influenced by McCarthy. Then he claimed McCarthy took the decision and Mpshe just implemented it.
As things stand now the question arises whether the current NDPP will also act in contravention of the law and his oath of office to protect President Zuma, or whether he will do what he is legally obliged to do: indict President Zuma and ensure that he is prosecuted in the most professional and effective manner possible.
The NPA has always maintained that there is sufficient evidence to charge President Zuma and that the case is winnable. The only reason why the prosecution did not proceed was because of the irrational and thus unlawful decision by the acting NDPP to drop the charges against President Zuma on the assumption that there was an abuse of the process when President Zuma was charged.
However, the High Court made clear that it is a court of law – and not the NDPP – who must decide whether the alleged abuse of process by individuals or any other factors would render the trial of the accused unfair. “A court of law is the appropriate forum to deal with the abuse of process doctrine, not extra-judicial process.” As the judgment stands, it is therefore not legally permissible for the NDPP to decide to drop the charges against President Zuma on the basis that he could not get a fair trial. This is for a court to decide.
As the decision of 1 April 2009 by Mr Mpshe to discontinue the prosecution of the case against Mr Zuma was found to be irrational and and was set aside, the original decision to charge President Zuma remains valid.
During the oral hearing the respondents argued that since the charges against Mr Zuma were formally withdrawn in court on 8 April 2009 after Mr Mpshe decided to discontinue the prosecution, the order that the decision was irrational and invalid would have no formal effect. The High Court rejected this “technical argument” and confirmed that the mere fact that the charges were formally withdrawn “cannot render the order we are to make herein inept and ineffective”.
The High Court thus concluded in no uncertain terms:
Having regard to the conspectus of the evidence before us we find that Mr Mpshe found himself under pressure and he decided to discontinue the prosecution of Mr Zuma and consequently made an irrational decision. Considering the situation in which he found himself, Mr Mpshe ignored the importance of the oath of office which demanded of him to act independently and without fear or favour. It is thus our view that the envisaged prosecution against Mr Zuma was not tainted by the allegations against Mr McCarthy. Mr Zuma should face the charges as outlined in the indictment.
This conclusion is in line with the SCA decision in National Director of Public Prosecutions and Others v Freedom Under Law where the Court explained:
In terms of the Constitution the NDPP is the authority mandated to prosecute crime, while the Commissioner of Police is the authority mandated to manage and control the SAPS. As I see it, the court will only be allowed to interfere with this constitutional scheme on rare occasions and for compelling reasons. Suffice it to say that in my view this is not one of those rare occasions and I can find no compelling reason why the executive authorities should not be given the opportunity to perform their constitutional mandates in a proper way. The setting aside of the withdrawal of the criminal charges and the disciplinary proceedings have the effect that the charges and the proceedings are automatically reinstated and it is for the executive authorities to deal with them.
This means that, in the absence of an appeal, the NPA must therefore be given the opportunity to perform its constitutional duty to re-charge President Jacob Zuma on the 783 counts of corruption, fraud, and racketeering. The NPA does not – in the absence of an appeal – have a discretion in whether it wishes to recharge the President. It is for a court of law to decide whether the case has been fatally damaged by any alleged infringement of the fair trial rights of President Zuma, not the NPA.
Of course, even if President Zuma is recharged this does not mean that he will be convicted. The NDPP could unlawfully sabotage the case by appointing inexperienced prosecutors and by starving them of the resources to conduct a proper prosecution. The President could also convince a court that his right to a fair trial was fatally compromised and obtain a permanent stay of prosecution. Lastly, the President could – at last – put up a substantive defence and show that he took money from Mr Shaik and from an arms deal company and then did favours for them in an entirely innocent manner and could then be acquitted.
But the last option is clearly one that the President and his legal team have attempted to avoid at all cost for over than 10 years.BACK TO TOP