An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
News that the National Prosecuting Authority (NPA) has decided not to appeal the Supreme Court of Appeal (SCA) decision handed down last month in which it declared the decision by the NPA to drop all charges against President Jacob Zuma reviewable on the ground of legality and ordered the NPA to produce the record on which it based its original decision, comes as something of a surprise. I, for one, thought that the NPA would appeal the case because an appeal would have been politically beneficial to President Jacob Zuma who might want this case to drag on as long as possible.
President Zuma was also a respondent in this case and may still decide to appeal the judgment. If he decides not to appeal, the NPA will have to provide the Registrar of the court with the “reduced record” which the NPA relied on to make its original decision. After looking at this record the DA will then have to decide whether it is worth pursuing this case and whether there is merit in having the decision reviewed by the High Court.
The SCA made the following order regarding the production of this “reduced record”:
the first respondent [NPA] is directed to produce and lodge with the Registrar of this Court the record of the decision [to drop charges against Zuma]. Such record shall exclude the written representations made on behalf of the third respondent [Zuma] and any consequent memorandum or report prepared in response thereto or oral representations if the production thereof would breach any confidentiality attaching to the representations (the reduced record). The reduced record shall consist of the documents and materials relevant to the review, including the documents before the first respondent when making the decision and any documents informing such decision.
When the former acting National Director of Public Prosecutions, Mokotedi Mpshe, announced that the NPA was dropping the charges against President Zuma, he indicated that the representations submitted by the legal representatives of Mr Zuma (as he then was) pertained to the following issues: the substantive merits of the case against Zuma; the argument that Zuma would not receive a fair trial; the practical implications and considerations of continued prosecution; and policy aspects militating against prosecution.
Mpshe made it clear that the NPA “could not find anything with regard to the first three grounds that militate against a continuation of the prosecution”, meaning that the NPA believed it had a winnable case against Zuma and that Zuma would be able to receive a fair trial. The NPA will have to produce the record and the documents which led it to this conclusion.
This means that the documents setting out the strength of the corruption case against Zuma will have to be produced along with legal memorandums dealing with allegations that Zuma would not be able to receive a fair trail because of the way in which the then Scorpions conducted the case. These documents, if made public, could be extremely embarrassing to the President as it might remind South Africans of the fact that a strong prima facie case of corruption exists against President Zuma, a case which he has never answered despite claims at the time that he wanted to clear his name.
But the NPA will also have to furnish other documents which might embarrass former President Mbeki and others who might have plotted against Zuma. This is because the reasons given for the dropping of the criminal charges against Mr Zuma (as he then was), centred on the alleged abuse of the process and as Mpshe’s statement made clear this turned on allegations that there was some manipulation inside the NPA regarding the timing of bringing charges against Zuma.
The NPA decided to drop the charges against Zuma after listening to the recordings of various phone conversations between the head of the Scorpions and other role players. Although Mpshe’s statement is coy on this issue, it appears as if Zuma’s lawyers provided the NPA with these recordings. However, crucially, it appears from Mpshe’s statement that it was not these recordings provided by Zuma’s lawyers on which it relied to drop the charges against Zuma. The following extract from Mpshe’s statement is pivotal:
Although the recordings sounded authentic, the NPA decided to approach agencies that have a legal mandate to intercept telephone calls with a view to ascertaining whether they may have legally obtained recordings of the same conversations.
The National Intelligence Agency (NIA) confirmed to the NPA that it indeed had legally obtained recordings of many of the same conversations which were obtained during the course of its investigation into the circumstances surrounding the production and leaking of the Browse Mole report.
NIA indicated that it was able to share these legally with the NPA for the purposes of the investigation and for reaching a decision in this matter. Thus the NPA was able to make transcripts of the relevant portions of the recordings for this purpose and NIA has declassified these transcripts as they are not directly relevant to its own investigation. The NPA is thus confident that its decision is based on information that was intercepted legally and obtained legally by the NPA.
The transcripts contain material that was of vital importance in the NPA reaching its decision, and the NPA has decided to make its contents public as it believes it is in the public interest to do so. The transcripts have been declassified, the NPA believes that there is no legal impediment to its doing so.
Despite this passage, the NPA never made public all the transcripts in its possession. There are at least 28 different phone calls referred to in the NPA statement. Rather Mpshe’s statement included selected extracts from these transcripts to justify the conclusion that there was an abuse of process which fatally tainted the prosecution. The NPA will now have to provide all the transcripts which, one assumes, will finally be made public.
The extracts provided by the NPA at the time suggested that the major players were in regular contact with then President Mbeki. For example, the following extract from the NPA document refers to the following telephone conversation between Leonard McCarthy (LM) and Bulelani Ngcuka (the comments on the left are the explanatory comments provided by the NPA):
||There is regular reference to the need to meet or discuss with “the man”, “the other fellow” or “guy” or “he”. In calls 17, 21, 25, 26, 28 it is clear that it is the President. In most other cases it is not clear who is meant.|
To complicate matters further, Bart Ford, a senior commissioner at the CCMA ruled in a separate matter relating to the unfair dismissal application of a former Deputy Head of the Special Investigative Unit that these recordings were illegally obtained and could not be used in the arbitration hearing. It is unclear whether these recordings are the original recordings provided by President Zuma’ and his lawyers (which would suggest that the original recordings were illegally obtained and that our President and/or his lawyer committed a crime) or whether they refer to those allegedly secured from the NIA. In any case, the decision of the CCMA is of course not binding on the High Court, but if the recordings were indeed illegally obtained that would cast some doubt on the decision by the NPA.
So we wait with bated breath for the NPA to produce the “reduced record”. This will not only help everyone to evaluate the strength of the criminal case against President Zuma, it will also give some indication of whether the decision of the NPA to drop the charges against Zuma was legally sound or whether it might have been based on illegally obtained recordings made by lawless members of the intelligence services.