Statement: All eyes on the National Prosecuting Authority

29 April 2016

The Centre for Constitutional Rights (CFCR) welcomes the judgment handed down by the Pretoria High Court (the High Court) in Democratic Alliance v Acting NDPP and Others. A full bench of the High Court has reached a judgment that a decision taken in 2009‚ by the then Acting National Director of Public Prosecutions, Mokotedi Mpshe, to drop 783 charges against the President, Mr Zuma, was irrational and should be reviewed and set aside. The charges relate to the Arms Deal, in which his financial adviser, Mr Schabir Shaik, was found guilty of corruption and was sentenced to 15 years’ imprisonment.

The judgment is an affirmation of three key principles.

Firstly - in line with the notion of equality as enshrined in the Constitution - no one, regardless of rank, should be above the law. That the President may very well stand trial for corruption charges is hardly ideal for any nation - but that is the precise value of equality before the law - no one should be above the law.

Secondly, the decision underpins the principle of legality as a mechanism to ensure that the state, its organs and its officials do not consider themselves to be above the law in the exercise of their functions but remain subject to it. Despite the fact that the National Prosecuting Authority (NPA) is an organisation whose independence is a core institutional value - its decisions must still be underpinned by legality and rationality. There should always be a rational link between the means employed to achieve a particular purpose on the one hand and the purpose itself. Any exercise of public power should always be underpinned by principles of legality. This means that in the face of overwhelming evidence suggesting wrongdoing, the NPA will be hard-pressed to find reasons not to lay charges.

Third - the decision affirms the supremacy of the Constitution in so far as proscribing all conduct or law inconsistent with its provisions. The Constitution provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. This means that decisions taken by organs of state are subject to review, both in terms of the Promotion of Administrative Justice Act, and on grounds of legality and irrationality.

Unless the President lodges an appeal via the Supreme Court of Appeal or even by directly approaching the Constitutional Court, the decision of the North Gauteng High Court will stand.

It should be borne in mind that the decision does not stipulate that the original charges against him must be reinstated, as that decision lies with the NPA. Instead the decision reiterates the fact that when the NPA considers whether to charge the President, the decision should be taken with due regard to principles of legality and rationality. In those circumstances, it will be extremely difficult for the NPA to justify a decision not to reinstate the charges. Above all, even if the case was spearheaded by the official opposition party - the issues on hand transcend party politics. South Africa is entitled to a Presidency which “obeys, observes, upholds and maintains the Constitution and all other laws of the Republic”.

By Phephelaphi Dube: Legal Officer; Centre for Constitutional Rights