It is not often that the prosecuting authority will fight tooth and nail not to have to prosecute somebody whom its own prosecutors have consistently said would be found guilty of various crimes if he were ever to be prosecuted. But ever since acting NDPP, Mokotedi Mpshe, decided to drop all criminal charges against Jacob Zuma, this is exactly what the NPA has continued to do.
It is unclear why the NPA is so anxious not to charge President Jacob Zuma, given that the offences that President Zuma stands accused of are extremely serious and given that the NPA prosecutors intimately involved in the investigation (those who actually make decisions based on facts and law) have always maintained that they have a winnable case against the President.
Unless there are pressing legal grounds for an appeal, the perception would therefore invariably arise that the decision to appeal the judgment that would force the NPA to prosecute President Zuma is not based on purely legal considerations. It is for this reason that it is important to assess whether there are sound legal reasons advanced by the NDPP for the possible appeal.
The NDPP wishes to challenge the judgment on six different grounds. The problem is that many of the grounds raised are legally vague (and obviously overlap) and, at first blush, none of them appear to raise pressing legal issues.
First, the NDPP wishes to appeal on the ground that the High Court erred when it found that the acting NDPP acted irrationally when he did not refer the complaint of abuse of process and the related allegations against Mr McCarthy to court to decide whether the abuse was so egregious that it required putting a stop to the prosecution. The NDPP argues that he acted rationally when he decided not to prosecute Mr Zuma because he decided that it was not in the public interest to prosecute Mr Zuma.
There are two problems with this line of reasoning which may create difficulties for the NDPP on appeal.
First, the NDPP is appealing to the Supreme Court of Appeal (SCA) – and not the Constitutional Court. But the SCA has already made very strong statements on the manner in which allegation of abuse of process should be dealt with. In NDPP v Zuma (ironically the judgment in which the SCA overturned the ridiculous Nicholson judgment) the SCA held as follows:
“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… The motive behind the prosecution is irrelevant because … the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal. The same applies to prosecutions… In the absence of evidence that the prosecution of Mr Zuma was not intended to obtain a conviction the reliance on this line of authority is misplaced as was the focus on motive.”
The NDPP would therefore have to convince the SCA that the NPA has a broad discretion to decide not to prosecute somebody – even when the “abuse of process” would not in any way taint the lawfulness of the prosecution.
In effect the NDPP is arguing that even though the court has said that the kind of alleged interference in the Zuma case did not in any way taint the lawfulness of the prosecution, the NDPP nevertheless had a broad discretion not to charge the President for what is said to be reasons of “public interest”.
The NDPP would thus have to convince the SCA that the NPA has an almost unlimited discretion not to prosecute a suspect as long as the NPA believed it was not “in the public interest” to do so.
As the “public interest” is a malleable concept (one could just as easily argue that prosecuting a senior politician for serious corruption, bribery, fraud and money laundering is very much in “the public interest”) this argument will be difficult to sustain in the light of the established SCA precedent that clearly state the minor allegations of manipulation of the date when a suspect was to be indicted (and which had no effect on his political fortunes) would not render the prosecution in any way unlawful.
Second, the NDPP is silent about the reason why the High Court found that the decision to drop the charges against Mr Zuma were irrational. The High Court found that it was irrational for the NDPP to drop charges against Mr Zuma on the basis of “alleged abuse of process” because the decision “rested on legally untested allegations which were unrelated to the trial process and the charges”. This finding remain uncontested.
The Constitutional Court has stated in several judgments (including Albutt v Centre for the Study of Violence and Reconciliation and Others and DA v President of the Republic of South Africa) that in order to decide whether a decision is rational the court must make a valuation of a relationship between means and ends. A court must ask whether there is a rational relationship, connection or link between the means employed to achieve a particular purpose on the one hand and the purpose or end itself.
Here the NDPP relied on untested allegations to drop the charges, allegedly to safeguard the integrity and independence of the NPA. But as the High Court found, the NPA failed to test the allegations of interference. Moreover, the acting NDPP provided at least three contradictory versions to the court about who took the decision about the date for the indictment of Mr Zuma.
If the ultimate purpose of dropping the charges was to safeguard the integrity of the NPA one would think that the process followed would be to first interrogate the evidence, hear all sides of the story and then to decide whether dropping the charges would safeguard the integrity of the NPA. (Of course, we also now know that the decision had exactly the opposite effect than what was alleged to have been intended. Only paid spin doctors and very, very loyal loyalists will now argue that the NPA is a fearless body that never makes decisions based on political considerations.)
Moreover, it is not easy to argue that the process followed was rational, given the fact that the NPA never pursued the person (Mr McCarthy) who was alleged to have tried to influence the timing of the indictment of Mr Zuma. Surely, if it was serious about its credibility it would have launched an investigation against the person who was alleged to have attempted to abuse the process process.
The NPA also seeks to appeal the High Court judgment because it allegedly constitutes an inappropriate transgression of the separation of powers doctrine and impermissibly intrudes on decisions to be made by the executive. Instead the court should have found that the prosecution was impermissibly tainted by the alleged interference into the decision to indict Mr Zuma on a specific day. There are four problems with this argument.
First, the SCA judgment in NDPP v Zuma already found that such an alleged interference would not taint the lawfulness of the prosecution.
Second, the SCA held in National Director of Public Prosecutions and Others v Freedom Under Law that a decision not to prosecute can be reviewed by a court for rationality. In the latter case the court affirmed that this principle “acts as a safety net to give the court some degree of control over” the exercise of public power (like a decision not to prosecute) which does not amount to administrative action.
Third, the Constitutional Court in Democratic Alliance v President of South Africa and Others rejected the argument that the application of the rationality standard by a court would interfere with the separation of powers doctrine.
It is, said the Constitutional Court:
“difficult to conceive how the separation of powers can be said to be undermined by the rationality enquiry. The only possible connection might be that rationality has a different meaning and content if separation of powers is involved than otherwise. In other words, the question whether the means adopted are rationally related to the ends in executive decision-making cases somehow involves a lower threshold than in relation to precisely the same decision involving the same process in the administrative context. This is wrong.”
Lastly, the Constitutional Court has confirmed that the NPA is not part of the executive, but independent from it. It is a rather telling Freudian slip that the leave to appeal application argues that the prosecutorial function falls within the domain of the executive because this is not only legally wrong, but misconstrues the nature of the required independence of the NPA.
A third argument raised in the leave to appeal application is that the NDPP has a far reaching discretion to decide whether to prosecute someone or not, that this discretion is his alone to exercise “provided he is not mala fide” (in other words, provided he does not act in bad faith).
Although there is pressing circumstantial evidence that the NDPP did exercise his discretion not to prosecute in bad faith, that is neither here nor there. The test for whether the exercise of public power by the NDPP is lawful is not merely whether the NDPP acted in bad faith. The test is whether the NDPP acted rationally.
Of course acting in bad faith would be irrational, but even if he did not act in bad faith, his decision could still be irrational because, for example, there is no rational link between the process followed to come to the decision and the purpose for which the decision was made.
I can think of quite a few Constitutional Court judgments which have confirmed that the exercise of such public power goes beyond the question of whether it was exercised in bad faith and encompasses the question of whether the decision was rational. Let me mention a few of these Constitutional Court judgments here which, if the NPA reasoning is to be followed, would have to be overturned by the SCA (who does not have the power to overturn judgments of the Constitutional Court).
- Affordable Medicines Trust and Others v Minister of Health and Others 2005 (6) BCLR 529 (CC);
- Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others 2000 (3) BCLR 241 (CC);
- President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (10) BCLR 1059 (CC);
- Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1998 (12) BCLR 1458 (CC);
- Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (CCT 59/2004)  ZACC 14; 2006 (8) BCLR 872 (CC); 2006 (2) SA 311 (CC) (30 September 2005);
- Masetlha v President of the Republic of South Africa and Another  ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (CC);
- Albutt v Centre for the Study of Violence and Reconciliation and Others 2010 (5) BCLR 391 (CC);
- Democratic Alliance v President of South Africa and Others (CCT 122/11)  ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012).
Predicting the outcome of an appeal – especially before the papers are filed and the case is argued in court – is a difficult thing to do. In most cases there is at least some possibility that either side might win the appeal (especially if people use their own money and not tax payers money to fund the appeal) because litigants who pay for their lawyers seldom appeal without any chance of success. It is therefore usually best avoided to predict the outcome of an appeal.
However, in this case I will make an exception and predict that the NPA will not succeed with its appeal before the SCA. Given the fact that the legal precedent is so heavily stacked against the NPA and given what the SCA has previously said about the charges against President Zuma, I suspect the NPA has about as much chance of winning the appeal before the SCA than I have of scoring the winning goal for Bafana Bafana in the Soccer World Cup final.
But one can dream, I guess. DM