DA lodges court application against the NPA for contempt of court
The National Prosecuting Authority has disregarded an order of the Supreme Court of Appeal (SCA), by failing to provide the Democratic Alliance with the record of decision relating to the dropping of corruption charges against President Jacob Zuma.
This record is essential in the DA's case which seeks to establish whether the decision to withdraw charges against Jacob Zuma in 2009 was rational and legally motivated, or not.
In a judgment handed down on 20 March 2012, the SCA ordered the National Director of Public Prosecution (NDPP) to produce a record of all of the documents, recordings, materials and evidence that led to the withdrawal of criminal charges against President Zuma. The NDPP was given a deadline of 14 days from the date of the judgment.
As of today, 18 July - some four months since the judgment was handed down - the order has not been complied with. Consequently, the NPA is in contempt of the Supreme Court of Appeals.
As far as we can tell it is unprecedented for the NPA to be in contempt of court. It is untenable that an institution of state, constitutionally mandated to uphold the law without fear or favour, has blatantly defied an order of the Supreme Court of Appeal. This is unacceptable, unconstitutional and illegal.
We can announce today that we have instructed our lawyers to lodge the appropriate application with the Gauteng North High Court to compel the NPA to comply with the order of the Supreme Court, and to produce the record of decision.
The DA informed the NPA on the 29th of June that we would take all necessary action to ensure compliance with the order of the SCA. We have given them another 18 days grace since then, with no response yet received.
The first correspondence, containing documents, we received from the State Attorney was two days after the court's deadline of 10 April 2012. The documents that were provided to us were mainly the same documents that the DA had forwarded to the NPA arguing why the prosecution should continue, before the charges were dropped.
The documents had no relation to the evidence before the NPA that might have caused them to withdraw the charges against President Zuma. They also, crucially, excluded the transcripts of the infamous spy tapes, which the NPA had claimed were the basis of the decision to discontinue the prosecution. At that stage, the NPA asked us for more time to consult with President Zuma's legal team (see correspondence here).
Since then the State Attorney, on behalf of the NPA, has dodged, ducked and dived, but has still not produced the complete reduced record of decision, as described in the judgment. This record includes all documents, tape recordings, memoranda and other materials. The SCA only excluded the confidential representations that President Zuma made to the NPA at the time the charges were dropped, and any confidential responses thereto.
That the NPA has been determined to delay executing a court order, even to the point of being in contempt of court, raises several questions. Is the failure to produce the record an indication that there is in fact no record to produce? Is it possible that there are no internal NPA memoranda, reports or minutes of meetings in which this watershed decision was taken, because there were no such meetings? Is it possible that there was no rational basis on which this crucial decision was taken? Was it therefore taken on political grounds and is the NPA party to placing someone above the law just because he holds high political office?
This is a critical matter affecting every South African as it goes to the heart of our constitutional democracy and our defence of freedom under the law. These are indeed the freedoms that we celebrate today on President Nelson Mandela's birthday.
Statement issued by Helen Zille, Democratic Alliance leader, July 18 2012
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