Even on the version provided by National Director of Public Prosecutions (NDPP) Shaun Abrahams, and Minister of Justice and Correctional Services Minister Michael Masutha, the meeting between the NDPP, President Jacob Zuma and three Cabinet ministers at the headquarters of the governing party one day before the Finance Minister was charged with fraud was highly problematic.
Minister Michael Masutha confirmed this week that he “invited” NDPP head Shaun Abrahams to attend a meeting at Luthuli House (the headquarters of the governing ANC). Present at the meeting were Masutha, President Jacob Zuma, State Security minister David Mahlobo and Minister of Social Development Bathabile Dlamini.
News reports indicate that the purpose of the meeting has been variously explained as being about discussing the “anarchy” caused by student protests around the country; discussing “the fast generating security situation taking place on our campuses”; for the minister to give clearance for the prosecution of arrested protesters; to report what is happening at the level of the criminal justice system and criminal matters in terms of the student protest; as well as to discuss the proposed new law on hate speech.
There are several reasons why it would be inappropriate for the NDPP to attend a meeting with an array of selected Cabinet ministers at the headquarters of the governing party to “discuss” any of the above issues or to seek permission to charge protesters.
Section 179(4) of the Constitution provides that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. As the Constitutional Court held in the First Certification Case:
“There is accordingly a constitutional guarantee of independence [of the NPA], and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts.”
At first there was some confusion about the nature of the independence of the NPA established by section 179 of the Constitution. This is because the Constitution on the one hand vests the prosecutorial responsibility in the NPA while, on the other, provides that the minister must exercise “final responsibility” over the institution.
But this confusion was (ironically) cleared up by the Supreme Court of Appeal (SCA) in the case of National Director of Public Prosecutions v Zuma where the SCA overturned the so called Nicholson judgment which had led to the removal of former President Thabo Mbeki from office.
The SCA noted that Nicholson had overstated the nature of the independence of the NPA “when it held without qualification that ‘there should be no relationship [between the NPA and] the Minister of Justice’”. It then explained what the nature of this relationship should be, given that the NPA is independent but that the Minister of Justice must exercise final responsibility over it:
“These provisions may appear to conflict but, as the Namibian Supreme Court held in relation to comparable provisions in its Constitution, they are not incompatible. It held … that although the minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.”
In terms of section 179(5) of the Constitution the NDPP must determine, with the concurrence of the Minister of Justice, and after consulting the Directors of Public Prosecutions, a prosecution policy, which must be observed in the prosecution process. All decisions about the prosecution of individuals (including protesting students who may have broken the law) must be guided by this prosecution policy.
Neither the minister nor the president is empowered to discuss policy issues around the handling of student protests with the NDPP. As prosecutors are required by the NPA Act to serve “impartially” and to exercise, carry out or perform their powers, duties and functions “in good faith and without fear, favour or prejudice” and subject only to the Constitution and the law, all prosecutorial decisions must be guided by the prosecution policy.
Decisions about how the NPA should deal with student protesters who are arrested by the police cannot be made at any secret meeting between the NDPP, the president, the Minister of Justice and other ministers with absolutely no legal authority over the NPA.
The NPA Act mandates the Minister of Justice to act as a go-between between the NDPP and the government. At the very least, the Minister of State Security and the Minister of Social Development had no business attending any meeting with the NDPP.
The Minister of Justice (and no other minister) is entitled to interact with the NDPP, but the nature of this interaction is circumscribed by the NPA Act. The Minister of Justice is thus empowered by section 33(2) of the NPA Act to request the NDPP to furnish the minister with information or a report with regard to any case, matter or subject dealt with by the or a Director in the exercise of their powers, the carrying out of their duties and the performance of their functions.
The NDPP is also required to:
It would therefore be appropriate for the NDPP to furnish the Minister of Justice with information about how many students have been charged because of their involvement in the ongoing student protests, what they are being charged with and why the decision to charge or not to charge individual protesters complied with the prosecution policy.
It would not be appropriate for the NDPP to have a general discussion about the student protest with various ministers (who are not legally entitled to engage with the NDPP about prosecutorial issues). If the meeting was aimed at influencing the NPA to take a harsher stance against student protesters – regardless of what might be required by the prosecution policy – this would also constitute inappropriate interference with the independence of the NPA.
Moreover, if the reports in The New Age and ANN7 are correct that the meeting was also aimed at allowing the Minister of Justice to “give clearance” for the prosecution of arrested students, this would constitute highly improper and unlawful interference in the work of the NPA. The NPA does not need (and may not seek) “clearance” from the Minister of Justice or anyone else in order to prosecute anyone and the minister would have no business granting such unlawful “clearance”.
It would also not be appropriate to discuss draft legislation on hate speech which does not at present impose any legal duties on the NPA regarding the prosecution of any person. (The NDPP is, of course, entitled to make a public submission to Parliament about the draft Bill on hate crimes and hate speech.)
To emphasise the independence of the NPA, the NPA Act also prohibits anyone from interfering “improperly” with the NPA in the performance of its duties and functions and anyone who does interfere is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 10 years or to both.
The fact that the meeting was held at the headquarters of the governing party and not at the office of the minister also raises serious concerns. As the Constitutional Court has stated on several occasions, independence requires both institutional safeguards to ensure that decisions of an independent body are not influenced by powerful individuals, and the avoidance of any behaviour by relevant parties that could reasonably create an apprehension of bias or non-independence.
In this regard the SCA has stated that “the NPA must not be led by political considerations and that ministerial responsibility over the NPA does not imply a right to interfere with a decision to prosecute”. This view of the NDPP was confirmed by the Constitutional Court in Democratic Alliance v President of South Africa and Others:
“The office must be non-political and non-partisan and is closely related to the function of the judiciary broadly to achieve justice and is located at the core of delivering criminal justice.”
When the NDPP goes to the headquarters of a political party to meet not only with the Minister of Justice (the designated person to interact with the NDPP) but also with some ministers with no authority to formally interact with the NDPP, it will create a reasonable apprehension of political interference in the work of the NPA. When this is done in secret on the day before the Finance Minister is charged with fraud, it sets off loud alarm bells.
Moreover, neither the NPA nor the Minister of Justice has categorically denied that the decision to prosecute the Minister of Finance was in fact discussed at the meeting. A spokesperson for the NDPP said that the decision to charge Minister Gordhan was “not the subject” of the meeting. Minister Masutha said “The meeting was not for that purpose. It would not have been necessary at all for us to call a meeting on a matter to discuss the matter that we had been aware of.”
Both parties therefore denied that the purpose or subject of the meeting was to discuss the charging of Minister Gordhan. Neither party denied that, in addition to dealing with the main purpose or subject of the meeting (allegedly the student protests), the NDPP also discussed the decision to charge Minister Gordhan at the meeting or before or after the meeting.
These non-denials may be a co-incidence. But in the absence of a categorical denial that the decision to charge Minister Gordhan was never mentioned or discussed at the meeting (or before the formal meeting started or after the meeting concluded), every reasonably well informed observer will surely suspect that the NDPP discussed the decision to charge Minister Gordhan with the president, two of the president’s closest allies and the Minister of Justice.
As I noted above, the NPA and the minister are required to take reasonable care not to create the perception of political interference in prosecutorial decisions taken by the NPA. Regrettably, this care was not taken in the present case. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.