IN THE HIGH COURT OF SOUTH AFRICA
NORTH GAUTENG HIGH COURT, PRETORIA
Case No. 19577/09
In the matter between:
DEMOCRATIC ALLIANCE - Applicant
THE ACTING NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS - First Respondent
THE HEAD OF THE DIRECTORATE OF SPECIAL OPERATIONS - Second Respondent
JACOB GEDLEYIHLEKISA ZUMA - Third Respondent
THIRD RESPONDENT'S AFFIDAVIT OPPOSING APPLICANT'S APPLICATION IN TERMS OF RULE 6(11)
I, the undersigned,
MICHAEL ANDREW THOMAS HULLEY
do hereby state under oath:
I am an attorney in practice at Hulley & Associates Inc. and I am the Third Respondent's attorney of record.
(a) The matters deposed to hereinafter are within my personal knowledge save where the context clearly indicates the contrary in which event I believe the averments to be true.
(b) Where I deal with legal issues, I have been advised accordingly.
(c) I have been the Third Respondent's attorney since June 2005 and I have been the instructing attorney in all the many disputes and Court cases between the NPA and the Third Respondent since then.
(d) I have also been the attorney involved in the making of representations on behalf of the Third Respondent to the NDPP which resulted in or at the very least significantly contributed to the NDPP's 2009 decision not to continue with the then pending prosecution against the Third Respondent. Myself and Senior and Junior Counsel were also those who prepared the oral representations presented.
(e) I also attended to the post decision negotiations and discussions with the NPA as to how to deal with the pending criminal and civil litigation and various Court Orders made in the past litigation between the parties which really was part of an ongoing process.
(f) I thus do have personal knowledge of the matters I depose to unlike those who deposed to the founding affidavits of the Applicant who clearly have no personal knowledge of the matters they depose to in relation to the aforesaid representations and the 2009 Decision and all the matters which informed this.
In so far as is necessary to state this, I make this affidavit with the Third Respondent's authority.
I have read the Applicant's main affidavit (see here) and the follow-up affidavit which raises one aspect of the relief sought as an issue to be decided first.
The Third Respondent resists the relief in the main application and the relief now in issue and to be determined first in terms of the Order made by this Court dated 9 June 2009.
I have thus read the founding affidavit delivered in support of the Applicant's application in terms of Rule 6(11) directing the first Respondent to deliver the record of the proceedings relating to the decision of the first Respondent to form the subject of the review application brought by the Applicant in this matter "excluding the written representations made on behalf of the Third Respondent to the First Respondent" and any consequential record which would breach any confidentiality attaching to the those representations. In other words, the Applicant now seeks, in its own words, a "reduced record".
As a result of the Order I shall not deal pertinently with the main affidavit nor with the individual paragraphs thereof in resisting the relief now sought in the follow up affidavit and Notice of Motion (however where it sets out the Applicant's case and the context thereof in respect of issues raised in this affidavit as to why the follow up application falls to be dismissed on grounds which mean the failure of the application as a whole, I have referred to such aspects of the main application).
I deal hereafter with the individual averments in the Record application in so far as is necessary - before I do that I firstly set out the main contentions and main supporting evidence as to why not only the Record application but also the review application should be dismissed on certain discrete grounds with costs on the attorney and own client scale. I have tried to do so as succinctly as possible and of course, this must be read in conjunction with my subsequent answers to the individual averments made by the Applicant.
I use headings hereafter in the body of the first part of this affidavit not to compartmentalise or restrict certain averments to such locations but to facilitate any cross-referencing.
The Third Respondent opposes the relief sought in the Notice of Motion of 27 May 2009 for the following reasons.
HISTORY OF THE LITIGATION:
In order to place the present litigation in its correct historical perspective and given content to matters I refer to hereafter, I set out a very brief summary of the main events in the saga of Mr Zuma's investigation by the Scorpions and his prosecution by the NPA.
The criminal prosecution of President Zuma which is the subject matter of the decision the Applicant seeks to impugn herein, has a long history.
I set out only some of the main aspects of the said history hereafter.
For purposes of this application such history can be divided into the following main decision making components:
(a) In 2001, at latest the NPA decided to investigate very closely the involvement of President Zuma and Schabir Shaik in the Arms Deal and with one another with the eye on possible criminal prosecution to be decided on. By November 2002 this information was in the public domain. The Applicant indeed made public statements about this issue seeking to make political gain from this.
(b) In August 2003, after an extremely lengthy and thorough investigation, the NPA decides not to prosecute the then Deputy President Zuma in a public announcement, adding the now infamous remark that a prima facie case, but not a winnable case against the Deputy President existed. This was done at a public media announcement by the then NDPP, Mr Ngcuka, and which was televised. Shaik was to be prosecuted. The NPA acknowledged that it would be extremely unfair and prejudicial to Deputy President Zuma to continue to hold the spectre of prosecution over him. (This is referred to as "the 2003 decision"). Again the Applicant commented on this, seeking to extract political gain from this.
(c) After Shaik was convicted, the NPA reconsidered the decision to prosecute Deputy President Zuma and the then NDPP Mr Pikoli decided on 20 July 2005 to prosecute him on the mirror charges to those preferred against Shaik (as bribee as opposed to bribor) (reference to this hereafter is made as "the 2005 decision"). Mr Zuma was thereafter indicted for trial with the agreed trial date for a trial of some 6 months, being 30 July 2006.
(d) During the second quarter of 2006, the NPA decided to seek a postponement of the trial which was opposed and resulted in the matter being struck from the roll when the State was refused a postponement and in turn refused to proceed with the matter.
(e) The NPA decided shortly thereafter to hold over the decision to prosecute the Deputy President until associated civil litigation regarding searches and seizures carried out by the NPA and the issue of a Letter of Request for evidence from Mauritius was finalised. This stance was conveyed in litigation papers, heads of argument to the SCA and other statements by the NDPP.
(f) On 28 December 2007, the NPA, through Mr L McCarthy, the Head of the DSO and Mr Mpshe, the then acting NDPP decided to again prosecute Mr Zuma ("the 2007 decision").
(g) During February 2009, Mr Zuma made representations to the NPA regarding the continuation of the prosecution against him and the NPA decided (in a decision ultimately made at NDPP level) to discontinue prosecution, announcing such decision on 6 April 2009 ("the 2009 decision").
I briefly summarise other and mainly the post 2009 decision events.
(a) The criminal case flowing from the 2007 decision is not duly set down and the parties resolve to use the trial date of 4 August 2008 to argue an application brought by Mr Zuma seeking to set aside the prosecution based on breaches of section 179(5)(d) of the Constitution of the Republic of South Africa 1996 (the Constitution).
(b) On 12 September 2008 the Trial Court upholds Mr Zuma's contention in the "Section 179(5) Application".
(c) On 12 January 2009 the SCA upholds an appeal therein and dismisses the application.
(d) Mr Zuma applies for leave to appeal to the Constitutional Court and 12 May 2009 is set aside as the date of hearing the application including the merits of the interpretation of s179(5).
(e) On 10 March 2009, Mr Zuma, through his legal representatives, makes written representations to the NDPP as to why the criminal prosecution against him should not continue.
(f) On 20 March 2009, Mr Zuma's legal representatives make oral submissions in respect of the aforesaid. (I refer generally to the making of both sets of submissions as the representation process.)
(f) On 6 April 2009, the NDPP announces that he has decided that the prosecution of Mr Zuma shall not proceed.
(g) On 7 April 2009, the criminal charges against Mr Zuma, are withdrawn by the NPA in the Durban and Coast Local Division before Tshabalala, Judge President.
(h) On 7 April 2009, the DA institutes the current review proceedings in the then Transvaal Provincial Division.
(i) Later in April 2009, the National Elections take place. The ruling African National Congress (ANC) party retains a very significant majority with almost 2 out of 3 of all votes.
(j) Shortly thereafter, Mr Zuma is elected as the President of the RSA by Parliament.
(k) On 9 May 2009, President Zuma is inaugurated as the President of the RSA. The status of the Third Respondent has thus changed significantly between 6 April 2009 and 9 May 2009.
LOCUS STANDI OF THE DEMOCRATIC ALLIANCE ("DA"):
The Third Respondent contends that the DA had and has no locus standi to bring the review application and consequently the ancillary Record application.
The Applicant is a political party with minority support in the country and it has brought this application in pursuance of its own political aims, in opposition to the majority political party (the ANC) in this country. I submit that this is manifestly the true purpose of the main application.
I respectfully submit that the Applicant has no locus standi to seek the relief its seeks, given that it does not have a direct and substantial interest in the sense of a legal interest cognisable in law.
The Third Respondent contends that the application brought was fatally defective and remains fatally defective in that the Applicant does not have locus standi to seek the relief therein.
It is clearly as a matter of law and principle, incumbent on the Applicant to allege locus and establish the basis thereof at the outset of the application. The need to fully address this requirement was all the more pressing for the reasons which follow.
It is clear that the Applicant is pursuing its own political agenda, in part to target and attack the dominant and ruling political party in the country of whom the Third Respondent is the leader (and President of the country).
The Applicant cannot and does not assert any injury or right peculiar to it which arises or is affected by the decision sought to be reviewed and set aside. In these circumstances, it would even lack locus standi to bring a private prosecution of the Third Respondent.
In so far as the Applicant appears to suggest that these proceedings are in the public interest, I specifically dispute that this is so and point out that the Applicant is incapable of acting in the public interest if it does not itself have any legal interest in the matter. In any event, I submit that the Applicant fails to meet the legal tests formulated for actions in the public interest. These matters will be dealt with in legal argument.
I submit further that these proceedings are manifestly not in the public interest given that the relief sought pertains to the decision not to prosecute the Third Respondent who is now the President of the country. The ultimate aim is to seek the prosecution of the President of the country. I am advised and submit that it is against our constitutional framework to charge and / or prosecute a sitting President. I return to the latter aspect later but these matters will be dealt with fully in legal argument.
I am advised and respectfully submit that in these circumstances, the Applicant does not have a sufficient legal interest in the relief it seeks in the main application. I elaborate on some of these issues.
The DA is a political party which always, since its formation, has been a minority and opposition party. Since its establishment its public comments have often expressed its sentiment that it is a self-appointed political watchdog as opposed to a party attuned to actually governing South Africa.
The last general elections has seen the emergence of Cope but the overall situation remained very much the same as before.
The DA has thus adopted a role in South African politics where it seeks to retain and / or broaden its voter support by undermining the ruling ANC party in every conceivable way and to seek to discover whatever negative aspects it can about National Government, the ANC generally and all prominent ANC members. In short, its approach is not to work towards solutions but to carpingly criticise Government, the ANC and prominent ANC politicians using whatever material they can obtain in this regard and then to procure maximum publicity for such adverse comments.
One of the ANC politicians so targetted by the DA over the past 10 years, is the current President. I deal herewith later also, but it is pointed out that the DA has always vociferously criticised the Government for the high incidence of crime in South Africa Society. Despite this the DA has not once, to the best of my knowledge, apart from Mr Zuma's case, made representations to the NDPP as to whether the NPA should prosecute (or not) a particular individual even for the most heinous of offences. Certainly no publicity has been given to such representations if these were made on other occasions. This special action accompanied by great publicity and fanfair was reserved for Mr Zuma with the leader of the DA personally going to the NDPP'S Pretoria Headquarters and handing over the representations to the effect that Mr Zuma must be prosecuted. During the busiest time of the pre-election campaign, the DA's leader had time to spare to do this, accompanied of course by considerable press publicity. I annex copies of some of the Press articles reporting on this hereto and mark these "A". (These reports like all the press reports referred to reflect the press source and date of publication of the article.)
The day after the NDPP publicly announced the decision not to continue the prosecution of Mr Zuma, the review application was launched out of the Pretoria Court. It is clear from an analysis thereof, that the outline of the application must have been drafted prior to the announcement of such decision. That much is self-evident from the structure and wording of the main affidavit. Some of the passages had been amended and some inserted to present the format in which the main affidavit was filed but the structure and some of the passages indicate a pre-conception of the reasons for the decision which does not accord at all with the actual statement of the NDPP on 06 April 2009 and the answers of the NDPP at the press conference. Reference is made in particular to paragraph 82. Certainly the part of the affidavit dealing with the history of the matter had clearly been researched in advance for just such a contingency.
If this is disputed, there are obvious means of resolving such dispute.
The implications of an already drawn application prior to the NDPP's decision being announced and with no knowledge of the reasons therefor or of the content of the representations made, speaks eloquently and obviously to the motive for the application not being a desire to redress an improper decision directly affecting the DA. It speaks of a firm resolution to impeach any decision which does not continue the Zuma prosecution. Likewise the DA has displayed no interest in the prosecution of the Thint companies featuring as accused prior to the withdrawal of charges despite their being the parties on the State's own version, which were offering the bribe in order to safeguard their share of the Arms Deal. They have not been joined in these proceedings, a stance continued in, despite a Rule 30 notice addressed by Mr Zuma's legal representatives to the DA - a copy annexed marked "B". No response to this notice has been received.
I have thus been advised that the Applicant must have a direct and substantial interest in the subject matter of the proposed prosecution of Mr Zuma - as opposed to an interest in the consequences of a prosecution - in order to establish locus. The DA's founding papers do not establish such an interest. They are premised on the basis that the NPA's prosecutorial decisions are subject to review by a political party - that I have been advised, is not the case. I have further been advised that a person seeking to review the decision of the NPA not to prosecute, must at least have an interest in the subject matter of the Prosecution, tantamount to an interest which will suffice to entitle such a person to the institution of a private prosecution. It is contended that neither the DA nor the intervening party has such an interest. Full legal argument will be addressed on this aspect.
The Applicant, apart from snide remarks with an anti-Zuma slant which were designed to obtain political gain from that, did not participate in any manner in the decision making processes outlined until the representations being made by it and referred to in its review application, in respect of the 2009 decision.
In particular, the Applicant made no attempt whatsoever to review the 2003 decision not to prosecute the then Deputy President despite the Deputy President staying on in his position and the NPA then pronouncing that it has a prima facie case and proceeding against Mr Shaik. It did not even make representations.
The only prior interest it ever had displayed in the decision making process in the matter outlined above, was to seek to make political gain from the stigma criminal proceedings bring for the ruling party - the ANC - and for Mr Zuma as a leader of that party, and now the leader.
Given the aforesaid events and circumstances, the need to allege and demonstrate the Applicant's locus standi in the founding papers in respect of the relief sought herein, was and is self-evident. It has failed to do so.
It is respectfully pointed out that the Applicant effectively seeks to establish as a precedent the right of a political party to review a decision by the NPA to discontinue a prosecution and also obviously a decision not to prosecute a party herein. In short, the NPA effectively answers to all political parties in respect of decisions to prosecute or not and decisions to continue prosecutions or not. If the political party does not like the decision it has the right to bring review proceedings.
This is with respect a very disturbing proposition posing dire threats to the independence of the NPA and the separation of powers doctrine which is an intrinsic part of our Constitutional framework.
The capacity to review NPA decisions must for obvious jurisprudential reasons, be restricted to those who have a real and substantive interest in the subject matter of the decision - the alleged criminal conduct - and thus the outcome of the decision.
THE NATURE OF THE REPRESENTATIONS PROCESS:
The DA has claimed that it has locus to review the Mpshe decision because it had, under Section 179(5) of the Constitution, been allowed to make representations obviously in respect of a Section 179(5) review by the NDPP of the decision to prosecute Mr Zuma. Hence, the NDPP had itself, given the DA locus or such locus flows from its participation in the process.
I annex hereto the application for security launched in this matter (wherein the parties have come to an arrangement) and ask this Court to read as part of my affidavit herein my testimony in paragraphs 18 to 26 and also 29 thereof together with the annexures. I mark this "C".
I refer to the statements by Ms Zille, the leader of the DA to the effect that the (if not least "a") source of the DA's locus is that the NDPP allowed it to make representations (in terms of Section 179(5) of the Constitution).
Ms Zille, has stated on several occasions that this constituted an acknowledgment of the Applicant's legal interest in the matter as an interested party in terms of Section 179(5)(d) of the Constitution.
It is respectfully pointed out that this contention of the Applicant is deeply flawed both at the factual and jurisprudential level.
This understanding of the process in respect of which the DA made representations, and which premised the aforesaid claim for locus, is wholly mistaken.
(a) The representations made by Mr Zuma and which resulted in the 2009 Mpshe decision, were not made in terms of a Section 179(5) process, nor were these considered in terms thereof. Nor were these intended by Mr Zuma or the NDPP to be such.
(b) The representations were made pursuant to the NPA practice of receiving representations from Accused (or likely soon to be Accused) persons an opportunity to put forward grounds why they should not be prosecuted or the prosecution continued. This practice which predates such Policy, is specifically recognised in the "Prosecution Policy" and commented on in leading works on Criminal Procedure. It is not the specific and special process recognised by Section 179(5).
(c) I confirm as the legal representative of Mr Zuma who interacted with the NPA in respect of the process of the 2009 representations actually made, that these were not made in terms of Section 179(5)(d) - on the contrary it was made very clear that these were not made in terms of that Section and that was accepted by the NPA. In Mr Ngcuka's statement of 23 August 2003, he made it clear that an "accused" person was entitled to make representations and that the NPA was obliged to consider these, in respect of any prosecution or intended prosecution. This is a general practice of the NPA which stands separately and on a different footing to the special provisions of Section 179(5)(d) which deals with a very specific set of circumstances. Indeed, the NPA had during the litigation between Mr Zuma and the NPA, as to the ambit of Section 179(5)(d), specifically invited Mr Zuma to avail himself of this separate practice. That was what was in effect, and also expressly done subsequently whilst Mr Zuma in the somewhat parallel proceedings in time pursued his rights in terms of Section 179(5)(d).
(d) If the DA had taken the time to peruse the application papers in the Section 179(5)(d) matter serving before the Constitutional Court, it would have readily realised the obvious fact that the Representation Process was not an exercise in terms of Section 179(5)(d).
(e) If the Applicant had thus done its homework rather than rush to court to have its papers issued, it would have realised that Mr Zuma's representations were not made or considered in terms of Section 179(5)(d). This much would have been obviously apparent from Mr Zuma's application for leave to appeal to the Constitutional Court against the finding by the Supreme Court of Appeal that the decision of December 2007 by the NPA was not covered by the provisions of Section 179(5)(d).
(f) In that application it was stated as follows on behalf of Mr Zuma in respect of a suggestion in the NPA's papers that the representation process may have rendered the appeal process academic (paragraphs 7 - 16 of the Reply) therein:
This is a disconcerting and disturbing contention. The making of the representations referred to was premised on that exercise not affecting the issue before this Court. The deponent must be aware that the manner in which the NDPP's contention of no practical relevance was presented, would induce a distorted perception of the current representation process.
The representations and their contents are clearly confidential; the Applicant respects that confidence. It will, however, not breach such confidence to point out to the Court that the representations were premised on these constituting a discrete process unaffected by this application to this Court.
I quote the opening paragraph of the representations which merely explain the basis on which these have been presented and accepted by the NDPP.
"(a) These are written representations put before the NDPP on behalf of J G Zuma (the Supplicant or Accused) in respect of the continuation of Criminal Proceedings against him in terms of the indictment filed with the Registrar of the Natal Provincial Division on 23 June 2008.
(b) These representations are presented in terms of a time table and process agreed between the NPA and the Supplicant and have been negotiated between the parties in discussions between their legal representatives which commenced prior to the decision handed down by Nicholson J in September 2008.
(c) These representations deal with both the merits of the charges and the policy factors which govern a decision to prosecute and maintain a prosecution. These representations are presented without abandoning any contention in favour of the Supplicant which is justiceable in a Court of law (and they are premised on a different basis than the Section 179(5)(d) representations and discrete from that application).
(d) These representations are obviously confidential ..."
The basis of the arrangement in this regard is also set out in a letter written by me on ***, a copy of which is attached marked "A". Given the aforesaid, it is unclear why the NDPP seeks to rely on those representations in support of the argument that this application will be rendered academic.
I can also add without breaching the confidentiality of the process, that this same basis was expressly adopted in the oral representations which have been presented to the NDPP so far.
The same result follows from the fact that the NDPP and the Applicant have agreed a time table for the current process without any regard to the outcome of this application, for the very reason that the current representations were and are based on entirely different premises than any representations which may ensue as a possible result of a successful appeal to this Court.
At the level of principle I firstly point out that the substantive relief sought in the application does not include a mandamus or any other reference to the right or opportunity to make representations. What was in issue was the validity / legality of the decisions to prosecute Mr Zuma and the consequential relief of the setting aside of the implementation of the decision represented by the indictment. If any such decision was invalid, it remains invalid. The validity or not of the decisions to prosecute and the subsequent prosecutions have a significant impact on future litigation between the parties. What the NDPP wants is to have the result in the SCA to stand as the final result, for such result has a very real impact on any future litigation between the parties.
I respectfully point out, without disclosing the content, manner and process of the current representations, that a successful Section 179(5)(d) appeal before the Constitutional Court will very significantly affect the facts which will serve as the basis of the decision to prosecute or not. Moreover, that outcome will have as a result, that the decision to be made in response to the representations, would be whether to change the 2003 decision not to prosecute, as opposed to changing the 2007 decision to prosecute. The difference in outcome in the absence of a compelling case for change, is obvious.
Nor does the issue of representations necessarily even arise as a consequence of an adverse decision to the NDPP in the proposed appeal. The NDPP may well decide not to review Mr Ngcuka's decision given all that have occurred since - in that event the issue of representations may not even arise."
(g) I pause to mention that there are importance differences between Section 179(5)(d) representations and the failure to afford an opportunity for these and the general practice of receiving and considering representations from accused persons. What is important in this matter is that the representation process which resulted in the 2009 decision the Applicant seeks to impugn, was not a process or decision in terms of Section 179(5)(d).
(h) At the jurisprudential level, it is contended that the fact that the NDPP agreed to receive and then considered representations from the Applicant, in no way provides a basis for the Applicant to obtain a capacity to review which it otherwise would not have. The reasoning to the contrary constitutes a clear legal non sequitur. Full argument will be presented on this aspect.
(i) The NPA was clearly at liberty to obtain and / or receive information, evidence, argument, advice, etc from whomever it saw fit, in coming to its conclusion whether to continue with the prosecution against Mr Zuma. It is clear that it did interact with numerous parties in arriving at its decision. That does not give any of these parties standing to review the decision - full legal argument will be addressed on this issue.
(j) The purpose of the Section 179(5)(d) application was not to seek an opportunity to make representations to the NDPP; not even in terms of Section 179(5). Such relief was not sought as part of the Orders therein. The purpose of that application was to declare the December 2007 (Mpshe and McCarthy) in so far relevant and the June 2005 (Pikoli) NPA decisions to prosecute Mr Zuma unlawful and thus of no force and effect. That would have left the lawful status quo as being the 2003 decision (McCarthy and Ngcuka) of the NPA not to prosecute Mr Zuma; a decision about which Mr Zuma had already then complained, had been unnecessarily delayed. Hence any trial post any new 2009 decision (whether representations were made or not in that respect), would have been targeted on the basis of undue delay (from pre 2003 to 2009 (2010). It was indeed common cause with the NPA that a permanent stay application on behalf of Mr Zuma would have followed on the Section 179(5)(d) application if any prosecution was still pending or re-instituted.
(k) Further, even if representations were to be made, clearly it is far more advantageous to argue to the NDPP that he must not change the decision (the 2003 decision) not to prosecute than to persuade him to deviate from previous decisions to prosecute.
(l) Mr Zuma was thus very careful in making the representations in the representation process, to make it very clear that these had nothing to do with the Section 179(5) application and to premise both the appeal process before the Constitutional Court and the Representation Process on this distinction.
It follows that the Applicant's claim to derive locus from the provisions of Section 179(5)(d) is misguided, the Representation Process was not one under Section 179(5).
Moreover, it does not appear as if the NDPP dealt with the request by the DA to make representations in terms of Section 179(5)(d) - he never expressly stated this nor did he seek the DA's representations. I have in any event been advised that the NDPP cannot unilaterally change the character of the Representation Process from what that truly was and which was the agreed basis with Mr Zuma's representatives on which such representations were made.
In this respect it is also relevant to elucidate another aspect which may have misled the Applicant. It was widely reported in the press that the ANC made representations in favour of the prosecution of Mr Zuma not proceeding. This is correct save for one very important qualification - the ANC decided to give its views and to support the prosecution not being continued. As Mr Zuma was effectively the elected President of the ANC, his representatives advised the ANC that such contentions as it sees fit to advance, must be formulated by the ANC in consultation with its separate legal representatives to avoid these contentions being minimised as that of Mr Zuma and his representatives simply wearing a different cap. After formulation these were presented as part of Mr Zuma's representations, as were also representations of a number of other individuals and entities providing supporting contentions. Only Mr Zuma's representatives addressed the NPA on these representations and the various facets of the representations; neither the ANC nor their legal representatives did - for whilst their work guaranteed the authenticity of such contentions, the only party making representations to the NDPP was Mr Zuma.
I accordingly submit that the application for a reduced record ought to be dismissed on this basis alone and submit that it ought to be dismissed consequent upon the employment of three Counsel.
SECOND POINT IN LIMINE: THE DECISION SOUGHT TO BE REVIEWED IS NOT REVIEWABLE
As has been pertinently pointed out by the State Attorney in this matter, representing the first and second Respondents, a preliminary ruling will be sought on the issue of whether the decision to be reviewed and set aside in the main application is in fact capable of being reviewed and set aside. If it is not, then there is no need for the production of a record or a reduced.
The Representation Process was directed to persuade the NDPP not to continue with the criminal prosecution of Mr Zuma. I have been advised that such a process in itself does not yield to judicial review - any decision in the context of actual litigation between the parties is not susceptible to a review of the kind brought by the Applicant and certainly not on the grounds raised in the founding affidavit. In the context of pending litigation, one considers a multitude of factors such as the probabilities of eventual success which calls for judgment calls in respect of what each can prove or not, the protection of the identity of witnesses and their interests and the effect of the trial on them and their testimony; the length of the trial and the costs thereof and a plethora of other factors such as even the identity and during the trial, the reactions of the Judge. It is simply unrealistic to suggest other than that evaluation of the litigation is a constant process dependent on value judgments which can different greatly and legitimately taking into account a myriad of factors including the aforesaid. I consider myself qualified to express such an opinion having been involved in High Court litigation for more than a decade.
The nature of the process of representations must also be considered:
(a) It is not in the form or format of a mini-hearing. There is no leading of evidence, no cross-examination etc. It is far more akin to one party proposing a settlement and giving the reasons for that. Representations are not exchanged - they are normally confidential.
(b) The representations were made in respect of the impending criminal proceedings. It was a process whereby the impact of these on such proceedings was being considered. This involves a very different mind set and value judgments than an administrative hearing.
(c) The process involved two parties who were litigating with each other - it was not a process whereby one party sits in some judgment of another party - there is a different dynamic at work.
Litigation also demands actual here and now decisions which require the parties to be kept to these. One cannot "settle" a matter and then get told later, "I have made a wrong decision because I incorrectly assessed the risks of continued litigation". Full legal argument will be addressed on these issues.
The Prosecution of Mr Zuma by the NDPP has come to an end. That was the clear tenor of the Representation Process and subsequent Agreements between the parties. Thus the Section 179(5)(d) appeal proceedings before the Constitutional Court were terminated by Agreement. Those proceedings were, of course, of considerable importance to Mr Zuma in the face of a continued prosecution as I have earlier explained. What now happens to that? Even if the NPA and Mr Zuma agree to abandon the various judgments they obtained in their favour, does the Section 179(5) application start afresh and what would be the Court's attitude to that? Mr Zuma still contends that the interpretation of Section 179(5) advanced on his behalf, is the correct one. What about all the costs orders which have been compromised (as has been done) in the light of the 2009 decision?
The fact of the matter is that the charges against Mr Zuma were withdrawn against Mr Zuma and the Thint accused, in Durban, in Court, before Tshabalala JP on 8 April 2009. The Accused had no objection to this process which as the Judge President remarked was unlike run-of-the-mill withdrawals, and had the mark of finality about it. The State, represented by one of its usual Counsel, did not seek to correct this in any aspect.
The applications now before the Court should thus fail because the decision sought to be impugned is not reviewable. Full legal argument on this aspect will be addressed to the Court.
ABUSE OF PROCESS / DELAY:
The enormity of what the DA seeks to achieve in this application, particularly the injustice and unfairness to Mr Zuma, should not be overlooked. He has been investigated with all his documents, bank accounts and private conduct being exposed to scrutiny since 2001, a well-considered NPA decision not to prosecute him made in 2003, a decision to prosecute him taken in 2005 which came to naught when the case was struck from the roll when the Prosecution in August 2006 unsuccessfully sought a postponement, a December 2007 decision to prosecute him followed by a March 2009 decision not to continue with such prosecution in respect of essentially the same core charges and the same core evidence. The Applicant now seeks to review the 2009 decision so that another decision must be taken to prosecute Mr Zuma in 2010 and some future date. I have summarised the aforesaid simply so that the true effect of the persecution lying at the heart of this application can be appreciated.
On 23 August 2003, the NDPP announced the decision not to prosecute Mr Zuma on the corruption charges. A copy of that decision is annexed hereto and marked "D".
This decision was met with public howls of protest from the DA. No attempt was, however, made by the DA to review that decision on the basis that a proper decision requires Mr Zuma's prosecution. If ever there was a time for such a call, it was at that time when Mr Shaik was to be prosecuted for the mirror image conduct, from a bribor-bribee perspective, for such corruption.
After the charges against Mr Zuma faltered in September 2006, when the Trial Judge struck the matter from the Roll, the office of the NDPP frequently indicated that the decision whether to charge Mr Zuma again, was being considered by the NDPP. Yet again, the DA sought no opportunity to make representations despite it being widely reported in the newspapers that Mr Zuma had requested such an opportunity. No such request to make representations was ever announced by the DA.
It is of course significant that the 2003 NPA decision, despite resolving not to prosecute Mr Zuma, left a cloud of suspicion over him due to the uncalled for pronouncement of Mr Ngcuka that there was a prima facie case against Mr Zuma. This was then thought by many to have tainted him so that no significant political leadership role and certainly not the Presidency of the ANC and / or the RSA, would be open to him.
Similarly in 2007, the NPA decision making process culminated with the run-up to the Polokwane ANC leadership elections with the Press predicting a fair likelihood of President Mbeki being retained as President.
The Representations made by the DA in this matter were made in the period immediately prior to the National Elections of 22 April 2009; so too the application launched herein. The DA was at that stage pitted in a bitter election campaign against the ANC led by Mr Zuma.
It will be contended that this entire application is an abuse of process - it is not being brought due to any interest in the subject matter of the prosecutions against Mr Zuma, but solely in order to gain political ground on the ANC.
THE REQUEST FOR THE REDUCED RECORD:
(a) It is important to establish firstly what exactly comprises the disputed Record. It is submitted that the impugned decision cannot be seen separately from the context which broadly informed it. There is a history between Mr Zuma and the NPA that stretches back to 2003. There is a history of intense litigation in respect of a variety of disputes all linked to the criminal prosecution of Mr Zuma. I provide the Court with some details:
(i) The NPA provided Mr Zuma's representatives with some 4 million documents in electronic format as documents which may be relevant to the Criminal Trial.
(ii) The Expert Reports expected to be relied on by the State runs into 100s of pages with the immediate support documentation thereto some 10,000 pages.
(iii) The Statements of a 100 plus witnesses.
(b) The State's application for a postponement met with a counter-application for a stay of prosecution (sans heads of argument, oral argument of some 2 days, Judgment) the matter comprised some 4000 pages.
(c) Litigation extending to the Constitutional Court in respect of search and seizures and Letters of Request running in total to 1000's of pages.
Many of the documents which may form part of the Reduced Record are documents which, with respect, the NPA cannot simply give access to, no matter who should choose to review its decision not to continue the prosecution of Mr Zuma.
I point out that many of the documents which pertain to the prosecution of Mr Zuma are documents seized from a very large number of individuals including Mr Zuma, Mr Shaik, Mr Zuma's family and others such as his attorneys. These documents were seized in terms of various warrants of search and seizure, some of which have been set aside. The search for and seizure of such documents constitutes a gross violation of privacy which is only justified for the limited purpose of investigation and prosecution by the SAPS and in this case the then DSO of the NPA under specific albeit draconian provisions of the NPAA.
The access to and use of such material by the NPAA is limited in terms of the NPAA and the unauthorised use or dissemination of such material is a criminal offence punishable by imprisonment of up to 15 years (Section 43 of the NPAA). It is contended that the bringing of a review application cannot render these provisions and the clear intent which underlie them nugatory nor can it in effect negate the strict requirements which the Courts set for an invasion of privacy by means of a search and seizure warrant for the limited purpose of the warrant. Full legal argument will be addressed on these issues but I point out that a considerable portion of the 4 million documents provided by the State to the Defence were documents obtained through search and seizure warrants, and in the raids on Zuma and his family some 93,000 documents were seized.
In view of the Applicant's stance on it's right to receive all of the Record, I draw attention to some of the salient legal provisions relevant hereto.
The Prosecution Policy provides:
"Prosecutors are not allowed to participate in public discussion of cases still before the Court because this may infringe the rule against comment on pending cases and may violate the privacy of those involved."
The Code provides as follows:
"4.2 Prosecutors should, furthermore:
(b) refrain from making inappropriate media statements and other public communications or comments, about cases which are still pending or cases in which the time for appeal has not expired;"
Prosecutors shall keep matters in their possession confidential unless obliged to disclose them.
The NPAA provides as follows (S41(6) and 41(7):
"41 Offences and penalties
(6) Notwithstanding any other law, no person shall without the permission of the National Director or a person authorised in writing by the National Director disclose to any other person-
(a) any information which came to his or her knowledge in the performance of his or her functions in terms of this Act or any other law;
(b) the contents of any book or document or any other item in the possession of the prosecuting authority; or
(c) the record of any evidence given at an investigation as contemplated in section 28 (1),
(i) for the purpose of performing his or her functions in terms of this Act or any other law; or
(ii) when required to do so by order of a court of law.
(7) Any person who contravenes subsection (6) shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 15 years or to both such fine and such imprisonment."
Section 10 of the Constitution provides:
"10 Human dignity
Everyone has inherent dignity and the right to have their dignity respected and protected."
Section 14 of the Constitution provides:
Everyone has the right to privacy, which includes the right not to have-
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed."
Section 35(3)(h) reads that:
"(3) Every accused person has a right to a fair trial, which includes the right- ...
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;"
In respect of the seized documents the fact of their seizure under statutory provisions which allowed this for a particularly limited purpose, is highly significant. It is inappropriate to conflate the evidence gathering process which goes with criminal prosecutions with a Record of decision without recognition hereof.
The averments of abuse are also, in particular, relevant to the Record application. The Review can simply not succeed without the Applicant impugning it on the basis that the NDPP's decision was still irrational or inspired by improper motive, even given the contents of the representations made by Mr Zuma. These representations obviously played a very significant role (at the very least) in the decision not to continue the prosecution - the text of the 6 April 2009 announcement makes this much very clear. The receipt of the Reduced Record simply does not advance and cannot advance the case in the Review Application to success. The most likely inference from this is that the Applicant is intent on obtaining the material the NPA has in connection with the Arms Deal and to use such material for political gain by imputing criminal or at least improper conduct to the ANC and important persons within the ANC. I cannot otherwise understand what rational purpose can be served by the production of a "reduced" Record.
The DA has long since targeted the Arms Deal as a transaction which can serve to smear the ANC and its leaders. In fact, most minority parties have done so once more prompted largely by partisan political aims and support gathering motives. The DA has been vociferous in intimating that bribery and corruption were rife on the part of the ANC. If required or disputed, I shall cause press reports of statements from the DA and / or its leadership to be put up which demonstrate the correctness of these contentions - I have read these reports in the Press. So far the DA has not provided any concrete evidence to back up these accusations and imputations. It may well see the current application as an opportunity to do so; I do not know what other explanation there is for its decision to seek production of the Record sans the Representations which placed the Record in some instances, in perspective.
However, given that the Applicant is obviously driven by its political agenda and aims, I submit that these proceedings constitute an abuse of court process and are impermissible for that reason. The dominant purpose of this application is not to seek the reversal of the decision not to prosecute the Third Respondent but to score political support amongst the Applicant's supporters under the guise of acting in the public interest. I am advised that in these circumstances, our courts have a duty not to permit such proceedings to continue and respectfully submit that this Court ought to dismiss these proceedings on that basis alone.
PROSECUTION OF AN INCUMBENT PRESIDENT:
It will further be contended that Review brought is an academic exercise which will and cannot have any practical effect.
This contention is based firstly on the fact that it is simply not legally feasible to turn back the clock especially given that the charges have been withdrawn, the NPA and Mr Zuma having terminated associated litigation and Mr Zuma's inauguration as President of South Africa.
Mr Zuma was inaugurated as President of the RSA on 9 May 2009. His term expires in 2014. He is eligible for another term - whether he will serve another term or not is obviously premature to comment on.
The President of the RSA is under the current Constitutional Regime, an Executive President. He is, through democratic process, the elected Head of the State and acts as such. He is the party who ultimately deals with foreign Heads of State , is heavily involved in international interchanges and who is the Head of the armed forces. Reference will be made in argument to, inter alia, the provisions of section 83, 84, 85, 201(2), 202(1), 203, 209(2) and 231(1) the Constitution (quoting these will just add unnecessary paper to this answer).
I have been advised that the incumbent State President, like the President of the United States, cannot be charged with criminal conduct (or continue to be prosecuted) during his incumbency. Charges can only be brought if he is successfully impeached in terms of the Constitution or after his term of office ends. The President is presently 66 years old.
Full legal argument on this aspect and why such a prosecution will be unconstitutional will be addressed to the Court at the hearing hereof. It suffices to say that a prosecution of an incumbent President will, inter alia, offend the doctrine of separation of powers by seriously interfering with the Executive and thereby subverting the entire constitutional framework. Moreover, it is simply inconceivable that a National Director of Prosecutions would exercise his prosecutorial discretion so as to indict a sitting President in the light of these considerations. That power is vested elsewhere, that is, in Parliament, which is the only body vested with power over the President.
I point out that consultations with his legal representatives proved to difficult to arrange for Mr Zuma, given the demands on his time in the run-up to the Polokwane elections, more so in the run-up to the General Elections and extremely difficult now as a result of the very rigorous demands of the Presidency, especially for a President who actually himself interacts with the public. It is simply not feasible to deal with a complete trial wherein the State provided the Defence with some 4 million documents in electronic format as part of its discovery obligations and which will run for more than 6 months (preparation time left aside) and for Mr Zuma to be the President.
These considerations are linked also with the principle that the law will not allow a legal act to be voided if the consequences thereof result in far greater harm than the strict enforcement of the requirements of that legal Act. The dire consequences of what the applicant seeks, speak for themselves, especially in view of the 2010 World Cup, the economic recession and the need for all to address these issues responsibly.
I will now deal with the affidavit in support of the relief sought in notice of motion dated 27 May 2009. My responses must be read as qualified by what I have already stated hereinbefore. I deal with these averments in as concise a manner as feasible.
RESPONSE TO FOUNDING AFFIDAVIT: NOTICE OF MOTION: 27 MAY 2009
AD PARAGRAPHS 1 TO 4
I note the contents of these paragraphs.
AD PARAGRAPH 5
I respectfully dispute that for present purposes, it is not necessary to deal either with the Applicant's locus standi and the reviewability of the decision sought to be overturned in the main application and submit that it would be appropriate for these matters to be dealt with at the outset so as to prevent lengthy and expensive proceedings which may ultimately not be necessary. In this regard, the Third Respondent makes common cause with the first and second Respondent as it relates to the necessity and desirability of dealing with these two issues prior to the hearing of the main application. The other issues raised hereinbefore are also to be addressed.
AD PARAGRAPH 6 TO 10
I note the contents of these paragraphs.
AD PARAGRAPH 11
I dispute the contents of paragraph 11 and point out that it is clear from annexure "A" to the deponents affidavit that the attitude of the first and second Respondents in these proceedings is that the questions of the Applicant's locus standi and the reviewability of the decision must be dealt with upfront and prior to the delivery of any record in the matter, whether court ordered or otherwise. The Third Respondent makes common cause with that and the issues of abuse and the viability of any review given that the President of the RSA is sought to be targeted.
AD PARAGRAPHS 11 TO 22
I dispute the submissions made in these paragraphs and submit that the Applicant is not entitled to the relief it seeks in respect of the Reduced Record.
It is significant that the Applicant was advised on 24 April 2009 of the position adopted by the State Attorney, representing the first and second Respondents. That notwithstanding, the Applicant has not sought to compel the delivery of the record, as it is entitled in terms of the Rules to do, but has instead decided to seek access to a reduced record.
In so doing, it has deliberately elected not to deal with the issues raised by the State Attorney regarding its locus standi and the reviewability of the decision itself. Accordingly, it was not the failure to lodge the record that resulted in the main application not being ripe for hearing on 9 June 2009. The parties have in any event since then reached agreement on the future conduct of these proceedings.
The Third Respondent has not filed any affidavits in the main application because it delivered two notices in terms of Rule 30(2)(b) which went unanswered, including a notice and an application in terms of Rule 47 for security for costs, which security was belatedly agreed upon on certain terms. I respectfully submit that the Applicant has itself delayed the proceedings in this matter.
I reiterate that the Applicant cannot complain of any prejudice either as a litigant or otherwise in the absence of resolution on its locus standi in these proceedings and the reviewability in the wide sense of the decision that it seeks to set aside as well as whether this application is an abuse of process. Even in respect of any wrong done to Parliament, not only are there internal remedies which the Applicant should have addressed, but the Applicant is not Parliament.
I specifically take issue with the fact that what is termed "the negotiation privilege" ceases to apply once settlement in a matter has been reached. I am advised and submit that this is not the position in law.
Furthermore, the Applicant does not indicate precisely what it means by the reduced record and its reasons for contending that they do not fall within the privilege and the confidential basis on which they were received and why these documents in the reduced record which would not be affected by the duty of confidence and privilege. I respectfully submit that all of the records pertaining to the decision to withdraw the prosecution against the Third Respondent are inextricably interlinked with those duties and accordingly submit that no reduced record will be permissible. I have already referred to these issues before.
Furthermore, it is equally clear from the letter from the State Attorney of 24 April 2009 that it itself considered that there is nothing in the record which remains unaffected by the duties of privilege and confidence. It is to be noted that section 37(1)(a) of the Promotion of Access to Information Act 2 of 2000 imposes a duty on the first Respondent to refuse access to a record if such disclosure would constitute an action for breach of a duty of confidence owed to a third party such as the Third Respondent. As I have indicated, it is not only the Third Respondent's position which is to be considered.
The Third Respondent has not contended that there is any basis for lodging the reduced record because it was not asked to consent to this. For the reasons set out herein, the Third Respondent will not consent to the lodging of reduced record and contends that there is in fact no meaningful reduced record unaffected by the duty of confidence and privilege.
I respectfully submit that the Applicant is not entitled to the relief it seeks and that the application ought to be dismissed with costs, including those consequent upon the employment of three Counsel
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