Since the Supreme Court of Appeal dismissed President Jacob Zuma’s bid to appeal against the High Court judgment which declared invalid the decision to drop charges of corruption, money laundering and racketeering against him, several false or only half-true claims have been made about the case. So, yet again, it is time to do some fact-checking.
Claim: President Zuma has a constitutional right to make representations to the National Prosecuting Authority (NPA) to drop the charges against him and the NPA has a duty to consider these representations.
False: Section 179(5)(d) of the Constitution states that the National Director of Public Prosecutions (NDPP) “may review a decision to prosecute or not to prosecute”, after (among other things) taking representations from the accused person. This is a discretionary power which the NDPP may exercise if he so wishes.
However, as the SCA held last week in the Zuma v DA judgment, the NDPP made the decision to charge Zuma, which means that he does not have the discretion under section 179(5)(d) to review and set aside his own decision to prosecute President Zuma.
However, the NDPP does have the discretion to review and set aside a decision to prosecute in terms of section 179(2). In the NDPP v Zuma case, the SCA held that section 179(2) of the Constitution: “… empowers the NPA to institute criminal proceedings, and to carry out ‘any necessary functions incidental to instituting criminal proceedings’. The power to make prosecutorial decisions and review them flows from this.”
(The judgment quoted above relates to one of the many case in which President Zuma turned to the courts to avoid his day in court. As the SCA wryly noted last week: “The litigation between the NDPP and Mr Zuma has a long and troubled history and the law reports are replete with judgments dealing with the matter.)
No accused person has a right to make representations to the NPA or to have the NDPP entertain these representations. However, President Zuma may request to make such representations and the NDPP, at his own discretion, may decide either to consider or not to consider such representations.
When the NDPP is called upon to decide whether to consider representations from President Zuma, he will have to be mindful that he is not permitted to consider representations about any alleged abuses by the prosecuting authority in the case. As the SCA explained last week:
“The submissions by the NPA… that when the prosecution itself believes that there has been an abuse of process, it could not be expected of them to prepare for a case on the basis that a court should later decide whether a stay of prosecution is justified. It was contended that, in those circumstances, it ought to be left to the discretion of the prosecuting authority to decide whether to continue with the prosecution. I disagree…. It is in the interest of the NPA, accused persons and the public’s confidence in the administration of justice that decisions concerning allegations of abuse of process be made by a trial court.”
Claim: Gwede Mantashe is quoted in City Press as saying: “No. The first thing will be whether the NPA decides to charge the president. Now you are putting the cart before the horse. The judgment says the NPA must decide. It has not decided yet.”
False: The SCA judgment did not say the NPA must decide over whether to charge President Zuma. It said exactly the opposite.
As I pointed out on Friday, the SCA yet again confirmed the long-standing constitutional principle that the invalidation of a decision returns the situation to what it was before the invalidated decision was taken. It is therefore as if the decision to drop charges against Zuma never happened. The original decision to charge Zuma is “revived” and there is now a legally valid decision by the NPA to charge him.
Apart from the fact that the SCA confirmed in its judgment that the decision revives the prosecution of President Zuma (something that counsel for President Zuma conceded during oral argument), there is another obvious reason why the statement is false. In the High Court judgment (in the case of Democratic Alliance v Acting National Director of Public Prosecutions & others) the court held that:
“Considering the situation in which he found himself, Mr Mpshe ignored the importance of the oath of office which demanded of him to act independently and without fear or favour. It is thus our view that the envisaged prosecution against Mr Zuma was not tainted by the allegations against Mr McCarthy. Mr Zuma should face the charges as outlined in the indictment.”
The NPA, in its heads of argument in the appeal of the above judgment before the SCA, submitted that the statement above that President Zuma should now face the charges outlined in the indictment was impermissible and infringed upon the doctrine of the separation of powers. The SCA dismissed the NPA appeal. This means the original High Court judgment (and the statement in it, quoted above) stands, and – in the absence of a further appeal – this statement limits the ability of the NPA to avoid prosecuting Zuma.
The statement made by the High Court seems to be in tension with the general principle – set out in the previous section – that prosecutors have a discretion “to make prosecutorial decisions and [to] review them”. The NPA might argue that the High Court was therefore wrong to state that Mr Zuma should now face charges, but then it would have to appeal the judgment. Or the NPA might argue that while Mr Zuma must now face charges, this is subject to any new developments in the case that would justify the NDPP to again drop the charges which (until such time) remain valid and in place.
Claim: City Press reported that NPA sources claimed that the original prosecutor, Billy Downer, would be removed from the case because he had a conflict of interest. This is because he wrote an affidavit in support of the case to have the dropping of charges set aside.
Downer might be removed from the case for other reasons, but he is NOT conflicted: A conflict of interest arises where there is a conflict between, on the one hand, what a person is required to do in his or her official capacity (as a board member, as a CEO, as a member of a tender board, as a minister, or as the President), and, on the other hand, his or her personal financial or other interests.
For example, if a tender board member is required to decide in an impartial manner (based on the tender documents) to whom to award a tender, and one of the applicants for the tender is her husband, son, or lover, then the tender board member is conflicted. Similarly if the President has to appoint a commission of inquiry into corruption which he himself is alleged to be involved in, the president is conflicted.
You are not conflicted if you have a vested interest in doing your job properly in accordance with the law. A judge who states that she will always act in an impartial manner regardless of who appears before her is not conflicted because that judge merely confirms what legal and ethical obligation she is bound by.
As the SCA judgment has now made absolutely clear, the NPA should not have dropped the charges against President Zuma. The NPA has a duty to prosecute President Zuma. Part of Billy Downer’s job was to lead that prosecution. He wrote an affidavit in which he correctly supported the argument that the NPA should not have dropped the charges. So, in effect, he confirmed that he has a vested interest in doing what the law requires him to do: to prosecute people against whom the NPA has constructed a “watertight” case.
Claim: The NDPP will again drop the charges against President Zuma (of course, he would need to review and set aside the NDDP’s original decision to charge Zuma) as the case has been fatally weakened because a pivotal KPMG report was produced by someone whose credibility has been seriously dented by that person’s involvement in the SARS fiasco.
Partly true and partly false: It is correct that the evidence against President Zuma includes a report drafted by Johan van der Walt from KPMG. It is also correct that Van der Walt’s credibility has been seriously tainted by his involvement in the withdrawn KPMG report on the non-existent “rogue unit”. It is further almost certainly correct that if Van der Walt were to testify in President Zuma’s trial, the defence would attempt to destroy any credibility he has left in order to weaken the state’s case. It would therefore be risky for the prosecution to put Van der Walt on the stand during Zuma’s trial.
Interestingly enough, Van der Walt’s credibility was also attacked during the Schabir Shaik trail. But judge Hilary Squires found that Van der Walt had been an impartial witness – a finding that neither the SCA nor the Constitutional Court interfered with. Squires held that Van der Walt:
“[S]imply described chapter and verse, in extraordinary detail, the evidence that he culled from the mass of documents given to him to investigate… The suggestion in his cross-examination that he might be biased against the accused because of his long since national service as a policeman in the fraud investigation department, and the fact that his investigation efforts were paid by the state, can be safely dismissed as entirely without merit.”
But this is not really of legal consequence in the case under discussion. Far more important is the fact that any credible prosecutor will easily deal with the potential problem arising from the fact that the credibility of the person who drafted the KPMG report is now in doubt. A credible and impartial prosecutor, wishing to secure a conviction and worried about Van der Walt’s credibility, will probably commission another report drafted by an untainted person, which could then be used to support the prosecution.
It would therefore be rather difficult for the NPA to argue that it could not prosecute President Zuma because the credibility of the person who drafted the original forensic report has now come under attack.
If the purpose of the prosecuting authority is to provide the court with the best possible evidence to ensure that those guilty of crime are convicted, it would be irrational for the NDPP to drop charges against an accused merely because the NPA would have to commission another person to draw up a report from the available evidence to secure a conviction.
It would be a bit like me telling the Dean that I could not teach a course because I had accidentally deleted my PowerPoint slides. The Dean will look at me in horror at my irrational claim, and will rightly tell me: “Make new slides or teach without them.” 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.
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