Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
25 February 2010

Selebi’s Zuma option

ETV news reports that lawyers for Jackie Selebi is to approach Menzi Simelane, National Director of Public Prosecutions (NDPP) in order to have his trial stopped. They report that Selebi will argue that there was a conspiracy against him and that the prosecution was tainted by prosecutorial misconduct.

Details are still sketchy, but the initial legal question is clearly whether Simelane has the power to stop the trial half way through the prosecution. Section 179(5)(d) of the Constitution allows the NDPP to drop charges against an accused, but only when this is allowed in terms of the prosecution policy agreed to between the NDPP and the Minister of Justice. I might be missing something, but section 179(5)(d) of the Constitution does not seem to allow the NDPP to stop a trial already in progress.

However, the prosecutor (not the NDPP) is empowered to stop the trial after a plea has already been entered, but only in very limited circumstances. The prosecution policy states as follows:

Criminal proceedings may sometimes be stopped after a plea has already been entered. This would normally only occur when it becomes clear during the course of the trial that it would be impossible for the State to prove its case or where other exceptional circumstances have arisen which make the continuation of the prosecution undesirable.

If a prosecution is stopped, an accused will be acquitted and may not be charged again on the same set of facts. A prosecutor may therefore not stop a prosecution, unless the Director of Public Prosecutions or his or her delegate has consented thereto. Such decisions should therefore be made with circumspection.

The prosecutor may therefore stop the case in “exceptional circumstances”. One imagines this is rather unlikely as prosecutors are usually prosecuting a case because they think it is winnable. A prosecutor is also unlikely to agree that there was prosecutorial misconduct in a case run by him or her and would – correctly, in my view – defer to the judge on whether there was any misconduct and if there was, whether it fundamentally affected the fairness of the trial.

However, section 179(5)(c) states that the NDPP “may intervene in the prosecution process when policy directives are not complied with”. If Simelane thus wants to stop the Selebi trail he will have to rely on this section and such a move will have to be based on evidence that the prosecuting policy was flouted. The relevant section of the prosecution policy states that:

prosecutors should present the facts of a case to a court fairly. They should disclose information favourable to the defence (even though it may be adverse to the prosecution case) and, where necessary, assist in putting the version of an un-represented accused before court.

A credible submission by Selebi’s lawyers will have to provide hard evidence that demonstrates prosecutorial misconduct. A fabrication of evidence by prosecutors will obviously constitute such misconduct. As the Supreme Court of Appeal has made clear evidence that a prosecution was brought for an ulterior purpose would not constitute such conduct as long as the prosecutor always had the intention to secure a conviction.

Even then, given the fact that the trial is already underway and given the question mark hanging over Simelane’s credibility and independence, it would be advisable for Simelane not to intervene in this case. If evidence of misconduct exist, the honest option would be to put this before the court and to argue that it would be impossible for Selebi to get a fair trial. It is always better in such cases for a court – and not for a tainted political appointee – to make a decision about the ability of Selebi to get a fair trial. That way the credibility of the criminal justice system would not be placed under undue stress.

If the ETV repot is correct, it would represent Simelane with his first real test. Will he act in the interest of justice with an eye towards securing the credibility of the NPA and the criminal justice system or will other factors persuade him to intervene in this matter? Only time will tell.

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