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Urgent: We must clarify the constitutional status of prosecutors in the separation of powers


Loammi Wolf is a constitutional law specialist who runs the initiative Democracy for Peace.

Whether Jacob Zuma should stand trial for 783 counts of corruption, fraud and racketeering committed between 1999 and 2005 has been a matter of contestation in the courts for so long that the wood and the trees have merged. In the process, the credibility of the National Prosecuting Authority (NPA) has taken a hit below the waterline.

There are five principles that demarcate how the discretion to prosecute suspected criminals should be exercised:

  • The first is that prosecutors are bound by the principle of legality. In other words, the NPA is not allowed to exercise its powers in an arbitrary manner but must investigate and prosecute crimes in accordance with the law. The Constitution explicitly determines that the discretion to investigate and prosecute criminal offences must be exercised “without fear, favour or prejudice”.
  • The second principle is that criminal law applies generally, i.e. in the same way to everybody. Selective prosecutions are therefore strictly proscribed. This ties in closely with the fundamental right of equality before the law. Thus, nobody – not even the president – is above the law.
  • The third rule is that the prosecuting authority must institute criminal proceedings where there is a prima facie case. This means that, objectively on the basis of the facts, there must be a case to answer. Prima facie evidence does not need to be conclusive or irrefutable at the stage when criminal proceedings are instituted. It must only have enough merit once the criminal investigations are concluded in the sense of a reasonable prospect of success. If there is no case to answer, it would boil down to malicious prosecution.
  • Fourth, the prosecuting authority is not allowed to exercise the discretion to prosecute in a way that it would block access of victims of crime to the courts with unjustifiable nolle prosequis (dropping of charges). Section 34 of the Constitution guarantees their right to access to the courts, and the unjustifiable dropping of charges would accordingly infringe upon the rights of victims.
  • Finally, the prosecuting discretion must be exercised in a way that the NPA does not usurp judicial power. Since an unjustified nolle prosequi amounts to a non-judicial acquittal of an accused, it transgresses upon the constitutional separation of powers. Only a court may convict or acquit an accused.

All these principles have been compromised in the case of Jacob Zuma. It started with the unjustified nolle prosequi that Bulelani Ngcuka, then NDPP, entered in favour of Zuma in 2003. He infamously stated that he would only prosecute Zuma, then deputy president, if his president, Mbeki at the time, told him to do so. Schabir Shaik was then selectively prosecuted for the same bilateral crime of corruption and was convicted. (In prison Shaik miraculously turned “terminally ill” and was granted medical parole, but is often spotted playing golf; yet nobody cares to take his parole decision on review).

Meanwhile, the question of whether Zuma should be prosecuted has gone in an out of the courts with two interlocutory applications and related appeals since April 2009. The Gauteng High Court finally set aside the nolle prosequi of the then Acting NDPP, Advocate Mpshe, in March this year.

The court held that Mpshe disregarded, without giving reasons, the recommendation of the prosecution team that, even if the allegations that Advocate McCarthy colluded with the former NDPP Ngcuka about the timing of the prosecution were true, the decision to stop the prosecution was to be made by a court of law. The court cited the judgment of the Supreme Court of Appeal (SCA) in National Director of Public Prosecutions v Zuma (2009) in which it was held that:

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 Gauteng court concluded that Mpshe irrationally changed his mind after he listened to the “spy tapes” because he “was angry and felt betrayed”. Yet, he was already briefed about the contents of the tapes and nothing new transpired. He decided to discontinue the prosecution without informing the prosecution team or the Director of Public Prosecutions of KwaZula-Natal, who authorised the indictment. The court found that he kept it secret from them for six days and then dropped the bombshell at the now infamous press conference on April 6, 2009 shortly before the elections on April 22. Mpshe did not dispute that there was a prima facie case. This contention would hardly have been possible given the conviction of Schabir Shaik on charges of corruption in relation to the same factual matrix.

The court found that Mpshe acted impulsively and irrationally, and did not properly consider the impact of such a far-reaching decision. The court castigated him and said that the discontinuing of the prosecution could be regarded as a breach of the principle of equality before the law and creates the impression that high-profile people get preferential treatment.

The court took note that enormous pressure was exerted upon the NPA by Zuma’s lawyers. During argument, counsel for Zuma stated that his client needed a response as he was soon due to be sworn in as president of the country. The court found that Mpshe was subjected to such pressure that he could not properly apply his mind to the implications of what he was about to do.

It is worthwhile to do a fast rewind at this point: In the run-up to the 2009 general elections a “brains trust” of legal and academic experts helped the ANC to devise a strategy to get its president off the hook – possibly by closing all investigations and prosecutions relating to the controversial arms deal for good.

These developments took place against the backdrop of the “triple play to save Zuma”. As part of the “political solution” that was sought for the legal woes of Zuma, it was even proposed that the ANC should use its two-thirds majority in Parliament to amend the Constitution to grant a sitting president amnesty from criminal prosecutions, or alternatively, that – should he be prosecuted and convicted while in office – he should use his presidential powers to pardon himself so that he could continue to lead. Such political tactics can hardly be reconciled with the notion of the rule of law and justice.

The brazenness of these strategies belies the fact that Zuma would have foregone becoming president of the country if the NPA continued with the prosecution. It also cast his breaches of the Constitution and the law in the Nkandla affair, which he claimed to have been “unintentional”, in a different light.

What is the most astonishing in the whole saga is why Zuma has chosen not to use the proper remedy if there were in fact political meddling in his case that could have thwarted a fair trial. The National Prosecuting Authority Act does not mandate prosecutors to drop charges in a criminal matter where there is a prima facie case, even if there was political meddling in the case.

It specifically created a remedy to be invoked in such circumstances. Section 41(1) of the Act makes it a criminal offence for any person or state organ to interfere in criminal prosecutions. The provision reads as follows:

Any person who contravenes the provisions of section 32 (1) (b) shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment.”

Section 32(1)(b) determines:

Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.”

Thus, if Zuma felt aggrieved that Ngcuka interfered on behalf of Mbeki in his criminal prosecution insofar as he might have tried to influence the head of the Scorpions, Leonard McCarthy, with regard to the timing of the prosecution, then Zuma should have laid criminal charges against them, which he did not do. And the question is: why?

The answer is relatively simple: The timing of the prosecution was not really material. Zuma wanted a permanent stay of prosecution because he knew he should be prosecuted since there was a strong prima facie case against him.

And this, the Gauteng High Court said, is not legally possible. The abuse of process doctrine that Mpshe relied on for his decision to withdraw the charges against Zuma can be invoked only by a court of law, not the prosecuting authority. In other words, Mpshe unconstitutionally usurped judicial power.

True to form, Zuma then applied for leave to appeal the judgment, which was rejected by the High Court in Pretoria in June 2016. The court found that there was no reasonable prospect of another court reaching a different conclusion and that no compelling reasons for appeal were raised.

Zuma then appealed the dismissal for leave to appeal to the SCA, and was granted 30 days to present additional arguments as to why he should be granted leave to appeal on October 12, 2016. It will be interesting to see what reasons Zuma’s legal counsel will present to the SCA to fend off his prosecution this time and whether the court will be willing to grant an appeal. The chances seem rather slim.

Meanwhile, the current NDPP, Advocate Shaun Abrahams, appealed the judgment directly to the Constitutional Court. In an order dated September 28, the Constitutional Court ruled that it would not hear the appeal against the High Court ruling at present. This was because of the pending SCA matter, where Zuma is appealing the dismissal of his application for leave to appeal the judgment.

One of the six reasons Abrahams stated for the appeal is that the Gauteng Court erred in finding that Mpshe had acted irrationally by not referring the complaint of abuse of process and the related allegations against Leonard McCarthy to court. Abrahams argued that the national director of prosecutions is best placed to make these decisions, not the courts.

The argument begs the question: Implicit to it is that the NPA has an unrestrained discretion to decide whom to prosecute and whom not. However, this will throw the principle of legality totally overboard and legitimise arbitrary prosecutions.

In principle, the prosecuting authority is constitutionally obliged to prosecute in prima facie cases. Three constitutional provisions spell out limits to the discretion not to prosecute: first, section 9 guarantees equality before the law and prohibits selective prosecutions; second, section 34 guarantees access to the courts for victims and this may not be illegally blocked by the prosecutors; and finally, section 35 guarantees any accused a fair trial so that the rights of an accused are properly protected.

Not to prosecute where there is a prima facie case would also infringe upon the constitutional separation of powers because it amounts to a non-judicial acquittal. If there was political meddling in a case, the law explicitly prescribes the legal route to remedy that in section 41 of the National Prosecuting Authority Act. The judiciary, and not the prosecuting authority, is the designated legal organ to address a complaint of abuse of process. To claim otherwise negates the law in force.

Advocate Abrahams’ understanding of the principle of legality and the constitutional scope of the prosecuting discretion are serious cause for concern, especially in the light of his eagerness to appeal the Gauteng High Court’s judgment, ostensibly to protect Zuma from prosecution, while he is pressing unfounded charges for the prosecution of the finance minister for fraud and theft where there is not even the ghost of a prima facie case.

A question that intrigued many people in 2009 was: How did the spy tapes get into the hands of Michael Hulley, Zuma’s attorney and were they legally obtained?

The Interception and Monitoring Prohibition Act places enormous obstacles in the way of government agencies that may legally monitor telecommunications lines. Only an assistant commissioner of police, a major-general of the South African National Defence Force (SANDF) or a chief director of Intelligence Services may approach a judge to request permission to monitor a telecommunications line. Permission may only be granted for crimes that are being committed over a long period of time, or if they are committed on an organised or regular basis. The only exceptions to these rules are crimes committed under the Drugs and Drug Trafficking Act, or crimes that may harm the economy. Clearly prosecutors may not be spied on.

Reportedly, the tapes were intercepted as part of a crime intelligence operation that targeted the NPA. The operation that inter alia intercepted telephone communications of prosecutors Leonard McCarthy and Gerrie Nel was approved by former crime intelligence boss Mulangi Mphego. It was alleged that he also leaked the documents to Zuma’s attorney. Mphego was subsequently prosecuted by Gerrie Nel for the obstruction of the administration of justice. However, the-then NDPP Menzi Simelane removed Nel as the prosecutor, and the case was struck off the roll when the magistrate refused to give the new prosecuting team more time.

What this sorry saga has shown is that there is a definite need for the Constitutional Court to clearly demarcate criminal investigations, which should be prosecution-led, from ordinary police activities that fall in the domain of executive power and which are regulated by administrative law.

There is also an urgent need to clarify the constitutional status of prosecutors in the separation of powers. The constitutional state model does not only differ from the Westminster system insofar as it requires a written constitution with a bill of rights to protect the people against an abuse of state power.

It is also underpinned by a different kind of separation of powers and has two organs in the third branch of state power, viz. the judiciary and the prosecuting authority. The separation of powers is based on the kind of functions the various organs perform. The prosecution of criminal offences falls under the rubric of administration of justice and is not based on executing administrative action, which has its foundation in executive power.

Historically, the original separation of powers conceived of by Montesquieu (i.e. legislature, executive and judiciary) was refined in the mid-19th century to split the office of the investigating judge into two separate offices with prosecutors investigating crime and presenting the case in court and neutral judges delivering an unbiased judgment.

South Africa has failed to make this shift although nothing stands in the way of it in terms of Chapter 8 of the Constitution. Thus, the NPA is currently caught in a dark cloud not entirely of its own making. DM

Loammi Wolf is a constitutional law specialist who runs the initiative Democracy for Peace.


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