IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case No CCT 79/08
In the matter between:
THABO MVUYELWA MBEKI Applicant
JACOB GEDLEYIHLEKISA ZUMA First Respondent
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS Second Respondent
A F F I D A V I T
I, the undersigned,
MICHAEL ANDREW THOMAS HULLEY
do hereby make oath and state:
I am a duly qualified, admitted and practising attorney. I practise under the name Hulley & Associates at 2nd Floor, Momentum House, corner Prince Alfred Street and Ordnance Road, Durban. I am the First Respondent's attorney. I am duly authorised to oppose this application. I refer to the First Respondent's confirmatory affidavit.
(a) I have been the attorney of record of the First Respondent/Accused, Mr J G Zuma, from very soon after 20 June 2005, the date on which he was informed that he was going to be criminally prosecuted for corruption. I have thus always been the Accused's attorney of record in the numerous litigation matters between him and the NPA (save that I did not appear for him on 29 June 2005 at his first appearance). I thus have personal knowledge of the litigation concerning various matters between the First Respondent and the NDPP since then and access to the court papers in those matters. Most of these averments relate to such papers and their contents.
(b) Where I deal with legal contentions, I have been advised accordingly.
(c) Certain of the facts herein are obviously within the knowledge of the First Respondent. He has confirmed such averments. I refer to his confirmatory affidavit.
(d) Save as may otherwise be stated herein or as may appear from the context, the facts herein deposed to are within my personal knowledge and belief.
(e) These papers were prepared in considerable haste and we apologise for any typing errors or prolixity.
At the outset, I summarise in broad outline the First Respondent's contentions advanced in opposition to the Applicant's application :
(a) The First Respondent disputes that a case has been made out for urgency or that the matter is urgent.
(b) The First Respondent disputes the Applicant's locus standi in judicio.
(c) The First Respondent disputes that it would be in the interests of justice for this Court to grant the Applicant direct access to this Court, or to grant the Applicant leave to appeal against the judgment of Nicholson J, or to grant the declaratory Orders sought by the Applicant.
(d) The First Respondent contends that the application is misconceived and bad in law, for reasons which will be dealt with in this affidavit and in argument, should this Court hear argument.
(e) The First Respondent contends that there is objective reason to believe (and it is not denied by the Applicant) that the Applicant must have known at all material times of the allegations and issues before Nicholson J, or at least the nature of those allegations and issues, and that the Applicant nevertheless deliberately elected not to seek leave to intervene or participate in any way in the proceedings before Nicholson J.
(f) The First Respondent also disputes the merits of the Applicant's case, such as they may be, on the grounds set out in this affidavit.
Before responding to the allegations set out in the Applicant's founding affidavit, I shall elaborate further on the First Respondent's contentions summarised above.
I first deal with the general substance and merits of the Applicant's claim for relief.
The Applicant's case on the papers appears to rest on the following propositions:-
(a) The learned Trial Judge, from the material before him, drew some inferences and arrived at some conclusions which redound to the discredit of the Applicant and infringed his dignity.
(b) These inferences and conclusions and the reasoning engaged in, should not have occurred in the absence of the Applicant as a party to the proceedings in the Court a quo; the Applicant should have been heard before such judicial reasoning was resorted to.
(c) The Applicant has locus to impugn those parts of the judgment which refer or relate to him in an adverse manner in the Constitutional Court, despite:
(i) There being no order or judgment adverse to the Applicant or binding on the Applicant.
(ii) The Applicant not being a party or a witness before the Court.
(iii) Direct access rarely being allowed.
It is the First Respondent's contention that the above propositions are all fundamentally flawed and that the converse indeed applies as will be demonstrated hereafter.
Pivotal to the Applicant's contentions is the assertion that he should have been a party before the Court in the Zuma matter (see paras 13 and 14 especially). The Applicant claims that he was denied the opportunity to state his case before the Court a quo. In considering the validity of this assertion it is necessary to consider the context of, and the background to, the Zuma matter.
When Zuma was first prosecuted in 2005, the matter was set down for trial on 31 August by special arrangement with the Judge President of the Natal Provincial Division. The State brought an application for the matter to be adjourned which was opposed by the Accused (Mr Zuma as Accused 1). Mr Zuma also brought an application for a permanent stay in response to the application for an adjournment. Affidavits were exchanged and the adjournment was argued first. The State's application for an adjournment was refused. When the State then refused to proceed with the matter, the Court struck the matter from the roll thereby rendering the permanent stay application academic.
The permanent stay application also contained allegations of abuse of process endangering the Accused's fair trial rights. One rubric dealt with the issue of political pressures, manipulations and influence playing a role in the prosecutorial decision making as to whether to institute a prosecution or not against Mr Zuma and in the manner the prosecution was being conducted.
Many of these averments were incorporated into the S179 application and quoted as historical material so as to sketch the context and background circumstances to the NPA's decisions to prosecute Mr Zuma (These allegations were targetted in the State's striking out application).
The permanent stay papers thus included allegations concerning the then President Mbeki and the need for him to provide testimony concerning certain aspects of the prosecution and the purported evidence against Mr Zuma. It was also clearly alleged that that there was a politically driven conspiracy or campaign to render Mr Zuma a political non-entity and effectively destroy Mr Zuma as a political leader and role player and the main rival of President Mbeki for the leadership of the ANC and the Country. It was clearly intimated that the prosecution process was being utilized in furtherance of this campaign and that President Mbeki was not only alive to this but that he at the very least did certain things which lent support to the prosecution process.
These averments were given wide, and to some extent, sensational coverage in the press. The mass media published these allegations persistently and extensively. (If this is disputed, some of the most relevant press articles will be put up - the abbreviated time limits imposed preclude the inclusion of these as an annexure hereto). There is and was little doubt that the President was fully aware of these averments involving him and his conduct as part of the anti-Zuma movement which affected Mr Zuma's prosecution and the manner thereof. I quote some of the issues raised in the permanent stay application:
I have further been advised that an investigation into an alleged offence is an exercise that requires an objective search for the truth in order to make a fair decision whether to prosecute the implicated person(s) or not. The mere fact of a prosecution is highly prejudicial to the accused and in my case it has certainly proved to be so. This approach implies that both facts pointing to guilt and facts pointing to innocence will be investigated and indeed the second category of facts must also be brought to the attention of the court and the Accused."
Unfortunately it is clear that the current investigation was not of that ilk nor was it intended to be such from the very outset. It was from the outset designed solely or mainly to destroy my reputation and political role playing ability. Hence the present delays and postponement sought to further more investigations of that nature and design. My conviction on any possible type of offence is being pursued at all costs and regardless of fairness and if a conviction now appears to be fraught with difficulty, the mere postponement of the matter with the charges hanging over me would suffice to irretrievably harm me as a political role player. I set out as concisely as possible the facts and circumstances on which I base this response. "
I have, from shortly after my appointment as Deputy President of the Republic of South Africa in 1999, been touted as a potential Presidential candidate when the current honourable President's second (and constitutionally final) term of office expires. These speculations and expectations have steadily gained momentum and, especially in the press, conjecture about me being the next President has, in the last year or two, been persistent and widespread. I annex hereto some press articles which demonstrate the aforesaid and mark these "D"."
Just as there are a number of ANC members, members of other parties and members of the public who have come out in support of me being the next President, so there are those in public and in government who are very much opposed to me being President and indeed some who wish me to have no role to play in the politics of this country. I have always made it clear that if the ANC desires me to fulfil that function and determines that I must do so, I will always serve its will. It is the organisation's prerogative to decide that. It is clear, however, that there are those who are vehemently opposed to this and that their disquiet seems to have increased with the open speculation in the press about the reported growing prospects of me being elected President. [If challenged, I shall put up the reports to this effect]. Indeed, I verily believe that the charges against me have been initiated and certainly fuelled by a political conspiracy to remove me as a role player in the ANC. My past record of service to the organisation made an indirect attempt to undermine me to achieve this, the feasible imperative.
I further point out that there is not a single State witness involved in the Arms Deal process who contends that I ever even remotely requested or suggested that he or she act in an improper manner in the process or that I tried to influence the process or its outcome in any way. If there is, I challenge the Prosecution to give details thereof. I indeed had just about nothing to do with the entire Arms Deal."
Honourable President Mbeki was in his position as President and leader of the Cabinet very much in control of the Arms Deal. He took an active interest and part in it. He met with various of the bidders and other interested parties. He has been scurrilously accused of being party to improprieties in this regard. I annex a recent report to this effect hereto, and mark it "J". I distance myself from these and condemn the accusations as false. However, he is a person who is ideally and obviously suited to depose to the absence of corruption in the award process. Once again, if he does so the prosecution must revisit and rethink the allegations that I was bribed to protect the French interests against exposure for corruption in the arms deal.
There is no statement from the President in the docket contents handed to us. Nor is he on the list of witnesses. I have every respect for the office of the President and the need to avoid embroiling the incumbent in litigation. I heed the admonitions of the Constitutional Court in this regard. It is thus the more unfortunate that the prosecution has seen fit not to approach the Presidency to eliminate these areas of accusation from the litigation."
The decision to prosecute me was announced by the NPA on 20 June 2005 and I was charged on 29 June 2005 with two counts of corruption which mirrored the corruption charges against Shaik."
Shortly before that (on or about Sunday, 6 June 2005), I was requested by the President, through others, to resign in the light of the Shaik judgment. The request at that time was hard to justify on any legal basis. The President then dismissed me. I annex hereto, marked "N1" the text of his announcement. He foresaw therein me having my "day in court"."
Insofar as there may be a suggestion that my dismissal was not induced by the charges brought against me as these post-dated the President's decision to dismiss me, this is simply wrong. The President, I believe, could not have made the decision to dismiss me simply because I was implicated in Shaik's conviction. I was not an accused and the Shaik trial's outcome was expected on the State's version. If there was to be no prosecution, how could my situation then ever be resolved? I can only surmise that the NDPP, Mr. Pikoli, briefed the Honourable President on the upcoming charges during the approximately 5 days the National Director was with President Mbeki during their visit to Chile immediately prior to my dismissal. It is after all inconceivable that the President would have instructed Mr. Pikoli to prosecute me - that is, after all, the only other inference. I challenge Mr. Pikoli to reveal the new evidence which caused him to change his mind prior to his visit to Chile and whether he informed the President of that. Insofar as there may be any dispute about Pikoli accompanying the President to Chile, I annex hereto, marked "N2", a copy of an article published in The Cape Times on 7 June 2005, headed "Mbeki to Decide on Zuma's Political Future"."
The bringing of the charges impacted extremely severely on me. I lost the Deputy Presidency. It clearly impacts severely on any employment opportunities - I am effectively unemployed and quite unemployable given the pending charges. It has cast a social pall over me; I am viewed with suspicion. I have been branded a corrupt criminal in the press, they being emboldened by the decision to prosecute me. My future political role and my eligibility as a candidate for the Presidency have been severely and negatively affected by the fact that I am an accused on corruption charges. It has placed a tremendous strain on me in my personal life."
(In the S179(5) application, the First Respondent noted that Mr Pikoli had denied any discussion at all between him and the President).
This is particularly disturbing on another level also which again points to the manner in which the Prosecution is being conducted and the rather reckless use of the judgment in Shaik's case.
In this regard I point particularly to the letter of 19 January 2001 which I signed. This letter played a pivotal role in the judgment of the court (per Squires J). It was held that:
"A far more reliable guide to Jacob Zuma's feelings about the SCOPA recommendations is to be found in the letter he signed, if he did not write it himself, of 19 January 2001 to Mr Gavin Woods, the chairman of SCOPA, who had asked for the issue of a Presidential proclamation to introduce the Special Investigation Unit into the inquiry and had been conspicuously urging it in the SCOPA meetings. That letter was to advise Woods of the President's decision not to issue the proclamation necessary to do this. Woods described this letter as unique in his experience of 11 years of letters from Members of the Executive. He said that in its hostility, sarcasm and untrue statements of several issues, it was like nothing he had ever received. While we are not in a position to say whether any of the statements or issues are untrue, one is bound to say that a reading of that letter confirms the rest of the assessment. It is almost as if the writer is taking a special delight in rubbing the collective nose of SCOPA, and Woods in particular, in the rejection of its recommendation. That is conspicuously not the attitude of someone who was supportive of the investigation being pursued by SCOPA. Moreover, this scathing and humiliating rebuke was made widely known to a number of other interested persons, including the contractors, some of whose conduct was perceived to justify the investigation that had been refused.""
What is particularly disturbing is the following paragraph in the indictment served on me:
" Protection against investigations pertaining to alleged irregularities in respect of the arms deal
93. In a letter dated 19 January 2001, written in his capacity as "Leader of Government Business" in Parliament, accused 1 addressed a long letter to Gavin Woods, then chairperson of the Parliamentary Standing Committee on Public Accounts. It included the contention that there was no need for the Heath Unit to be involved in any investigation of the arms deal."
In S v Shaik the indictment read:
"N. ZUMA'S REACTION TO THE INVESTIGATION OF THE ARMS DEAL
125. In a letter dated 19 January 2001, written in his capacity as "Leader of Government Business" in parliament, Zuma wrote to Gavin Woods, then chairperson of the Parliamentary Standing Committee on Public Accounts:
"Furthermore, we are convinced that [..] there is no need for the ‘Heath Unit' to be involved in any ‘investigation' of the defence acquisition.
We hope this strange manner of proceeding was not driven by a determination to find the Executive guilty at all costs, based on the assumption we have already mentioned, that the Executive is prone to corruption and dishonesty.""
The letter in question was not drafted or composed by myself or my office. It was word for word drafted by the President's office and forwarded to me with an instruction that I should sign it. I did comply. There can be little doubt that even the most superficial investigation must have revealed that to the prosecution. I can only infer that the Prosecution knew this at the outset and indeed also when it drafted the indictment in this case. It knew full well the indictment would be eagerly published in various formats by the press. It must have known that the passage in question, together with the exposition in the Shaik judgment would give the very clear impression that the composing and signature of that letter by me were exactly what I got paid for. It knew and knows that that is, in fact, false."
When the President, in early June 2005 (prior to his Chile visit) discussed the Shaik outcome with me, I pertinently pointed out to him that the Court in Shaik's case had been misinformed about the source and responsibility for the letter. He agreed with me and undertook to put things straight about the letter on his return. He did not do so and subsequently apologised for this to me."
What I say is correct - the honourable President himself has publicly pronounced this. I annex hereto but one newspaper report (which has never been contradicted, denounced or qualified despite the ease with which the President's office can do so and its obvious knowledge thereof) and mark it "Q"."
I specifically call on the Applicant to take issue with what I have stated herein if it does not agree with my exposition. If evidence to the contrary is not adduced the defence shall seek to have this recorded as an admission. In particular the Applicant should explain why it seeks to persist to base its case on a letter which it perfectly well knows was not composed by me and was signed by me on instruction. It again points to the major omission in the State's case if an objective investigation was done - a statement from the President. Providing evidence to prevent an injustice is a Constitutional obligation resting on all of us."
The President could not but have been aware of the contentions raised which related also to whether the President and Mr Pikoli had discussed whether Mr Zuma was going to be prosecuted or not, whether the dismissal of Mr Zuma was fair, whether President Mbeki's conduct put pressure on Mr Pikoli to prosecute Zuma, (designedly or otherwise) etc.
In those proceedings, Mr Zuma thus implored the Prosecution to obtain statements or other clarification from President Mbeki who was described as a cardinal and essential witness in the matter and the criminal prosecution. The Prosecution effectively ignored this.
The President could not but have been fully aware of these issues being raised in the papers. Despite this and obvious knowledge that both the adjournment and permanent stay issues had been set down for Argument before Msimang J on 2 September 2006, there was no attempt by the President to intervene in the matter, or to provide affidavits to the Court or any communication to the NPA to provide any information on any of the issues raised on the papers which clearly involved him.
The significant eagerness to be part of the process and/or to provide evidence and/or to inform the NPA and/or the Court of the true state of affairs, which seemingly underlie this application, was conspicuously absent then.
These same averments were repeated in the S179 application; indeed they were repeated in their historical context, of being raised in the permanent stay application. The later circumstances which indicated a continuation of political pressure, influence and/or manipulation by top Government of the Prosecution to encourage the prosecution of Mr Zuma, in December 2007, were testified to in addition.
It is important to appreciate why these issues were raised by Mr Zuma. What was effectively said was, that given the above circumstances and the previous and persistent allegations of political influence/meddling, the NPA, which was fully aware thereof, should have acted in an extra careful manner to ensure fairness to the Accused. If there was any doubt, given inter alia, the provisions of S179(5)(d) of the Constitution, the Code, the Policy and the Prosecution's duty to act fairly, whether a prior hearing/representations were required, the mere existence (as opposed to the objective truth), of the allegations of political conspiracy and meddling removed that. The First Respondent made the allegations of political interference based on the relevance thereof especially to the alternative basis for its attack on the validity of the December 2007 decision to prosecute Mr Zuma. In short, even if for some reason that decision fell outside the ambit of S179(5)(d), it still could not be lawfully taken without a prior hearing of the representations Mr Zuma sought to make. For the purposes of especially that case, it was not necessary to prove the truth of the allegations of a political conspiracy/influence - it sufficed to show that the surrounding circumstances to the decision included such allegations which were not rumours, but have been seriously made as a matter of fact. A prior hearing was imperative in these circumstances. That was the case advanced and argued before the Court below and which of course is not as such the subject matter of the present application. I quote the penultimate paragraph of the First Respondent's Founding Affidavit (par 163):
"Moreover, allegations of a political plot to ensure via my prosecution that I am disqualified from appointment as President of the ANC or the Republic of South Africa, or at least seriously hampered as a candidate for both presidencies, were made and advanced from June 2005 and before. In the litigation between myself and the NPA which has already occurred, I myself have contended that my prosecution was driven and maintained by political motives. Similar sentiments have been raised in numerous press articles. The relevance of this aspect does not for present purposes lie in the truth or correctness thereof now, but in the simple existence thereof."
The State's evidence as to the history of S179(5)(d) as being designed to prevent political meddling by the Government through the NDPP in prosecutorial decision making, strengthened the resolve of Mr Zuma to resist the State's striking out of the averments relating to political interference/meddling. These averments were germane to the main issues irrespective whether they were true or not. Indeed, Mr Zuma's case was that the actual objective truth of these averments was to be dealt with in the permanent stay / abuse of process application which was to be brought should the S179(5)(d) and associated challenge based on the request to make representations, fail.
The newspapers again gave extensive and persistent publicity to these allegations of political meddling. The office of the Presidency indeed have officials dealing on a full time basis with media reports and responding where appropriate.
The First Respondent gave due and proper Notice in terms of Uniform Rule 16A of the Constitutional issues raised in the matter; that gave an open invitation also to any party who considered that the litigation may impact on him or who had a contribution to make relevant to the issue being raised, to join in the litigation.
It was the Defence's contention that the issue could also be accommodated under S106(1)(h) of the Criminal Procedure Act however, this was a convenient manner for all parties to deal with the issue by way of application.
The filing of the application on 23 June 2008 was thus accompanied by a Uniform Rule 16A notice inviting submissions from any potential amicus curiae. A copy is annexed marked "A". It effectively invited any interested party who wished to place material and submissions, relevant to the proceedings, before the Court. Of course such a party would, if the factual contents of his affidavit were contentious, face a very real possibility that the matter would have to be dealt with on the basis of oral evidence.
The most likely inference from the aforegoing is that the Applicant was fully aware of the issues raised by the First Respondent in the litigation.
The suspended NDPP, Mr Pikoli had further stated on oath to the Ginwala Commission, that the acting NDPP and the Government (with the parties specifically mentioned as involved on the Government side being Mr Mbeki and Ms Mabandla, the Minister of Justice and Constitutional Development) had a very close relationship, with the Government instructing Mr Mpshe how to deal with certain matters in the prosecution of Mr Selebi and Mr Mpshe acting in accordance therewith. I cite some of the relevant passages from Mr Pikoli's affidavit:
"130. As is evident from the affidavit of Ms Pillay, on 25 September 2007, Mr Mpshe held back a media statement prepared and agreed to by the National Deputies and himself. The reason given for holding back the media statement was that the Minister was unhappy with its contents, particularly the part stating that management of the NPA supported me."
"131. Even though Mr Mpshe suggests that he decided to appoint an independent panel, I submit that this was a decision made by Government and which was imposed on him. Why would Mr Mpshe see the need to appoint an independent panel, when he was party to the decision to prosecute Mr Selebi and on more than one occasion indicated that he believed that Mr Selebi had a case to meet? This is confirmed in the affidavits of Mr Gerrie Nel, Mr Mngwengwe and Ms Pillay."
(These were not cited in the S179(5) application because of the limited purpose for which the issue of political interference / manipulation was raised).
The NPA stated in the S179(5) application that since February 2006, they kept the Presidency informed of the Arms Deal investigation (of which the Zuma prosecution seems to be the main off-shoot).
The inference that the NPA, under the leadership of Mr Mpshe, had a close working relationship with, and also reported thoroughly on the Zuma case to the Presidency, is clear.
The contention is that, just as the Applicant was fully aware by August 2006 of the allegations the First Respondent made that his prosecution and the manner thereof were driven and/or influenced by political forces and/or considerations, he was fully aware of the similar averments made by the First Respondent in the S179(5) litigation.
The Applicant could have dealt therewith in a number of ways; he could have made an affidavit dealing with the issues involving him and presented it to the Court; he could even have sought to join as an amicus curiae or seek to join on any other basis. He chose not to do so.
The First Respondent, on the other hand, had considerable obstacles in seeking the Applicant's presence as a party. In the Permanent Stay papers, the First Respondent already stated these.
What the First Respondent said, in effect, was that Mr Mbeki's testimony would be valuable in a number of respects and that the NPA was ideally placed to obtain these in an orderly manner.
I also refer to various newspaper reports over the year speculating that the First Respondent would subpoena Mr Mbeki as a witness in the criminal proceedings in the wide sense. For obvious reasons relating to litigation rules, that eventuality was an entirely speculative one. However, these would have left Mr Mbeki in no doubt as to his involvement as a potential witness in these matters.
The Applicant's failure to provide the NDPP with countervailing evidence, or to join in the proceedings, was in contention, a deliberate one with knowledge that findings or reasoning which may in a general sense constitute adverse comment on Mr Mbeki or other persons in Government may result. Such conduct is completely in line with Mr Mbeki's conduct in dealing with such matters in the past.
I provide evidence of the aforesaid, citing just certain examples. The permanent stay proceedings before Msimang J raised these political interference issues squarely. There was an obvious risk that that Court would have to deal with these and indeed that oral evidence may have had to be resorted to.
Despite this no affidavit and no other form of intervention was forthcoming from the Applicant.
The Ginwala Commission resulted directly from the suspension of the NDPP (Mr Pikoli) by Mr Mbeki. Mr Mbeki's cardinal complaint in the matter now before the Court is the "findings" to the effect that he had influenced or sought to have influenced the prosecutorial process.
Mr Pikoli's attack on his suspension was that it was the actual and very culmination of the efforts of particularly Mr Mbeki and Minister Mabandla (the then Minister of Justice) to influence the decision whether to prosecute Mr Selebi or not and the manner of the Selebi investigation and prosecution. When Mr Pikoli did not heed all these demands and requests, he was suspended and Mr Mpshe on instructions, sought to undo some of the steps in the prosecution of Mr Pikoli. I set out only some of the relevant parts of Mr Pikoli's affidavit (paras 3 to 6):
"3. On 1 February 2005, I was appointed the National Director of Public Prosecution ("NDPP") by the President in terms of Section 10 of the National Prosecuting Authority Act ("NPA"), 1998 ("the NPA Act") as read with Section 179 of the Constitution. My appointment was for a 10 year term as contemplated in Section 12(1) of the NPA Act."
"4. On 23 September 2007 the President suspended me from office in terms of section 12(6) of the NPA Act and ordered an Enquiry into my fitness to hold office as NDPP. A copy of the letter from the President to me in regard to my suspension is attached hereto as annexure "VP1""
"5. The Government has since then advanced a variety of reasons for my suspension and the Enquiry into my fitness for office. The President's letter suspending me from office, advanced a number of reasons for that step. The Government's public explanations for the President's conduct advanced some of the same but also other reasons for the same step. In this Enquiry the Government has again advanced yet another set of accusations. There has indeed been a shift in its accusations from its original submissions to its supplementary submissions."
"6. The circumstances of my suspension, its history and its aftermath however made it absolutely clear that there was only one reason for my suspension and one reason alone. It was to put a spoke in the wheels of the investigation and prosecution of the national Commissioner to the South African Police Service ("SAPS"), Mr Jackie Mr Selebi ("Mr Selebi"). At the time of my suspension, warrants had been obtained to arrest Mr Selebi and to search his home and office. I was suspended to stop that process in its tracks. My suspension indeed had that effect."
In the detail, Mr Pikoli gave direct evidence of numerous meetings with the then President and the Minister and details of how they sought to influence him and the prosecution of Mr Selebi. Mr Pikoli goes further; he accused the Government and indeed Mr Mbeki of being untruthful about the reasons provided for his suspension by providing reasons which were false in the sense of not being the real reasons and being wholly silent as to the real reason.
These passages are not cited as proof of Mr Mbeki's behaviour. They are cited to demonstrate that despite the direct evidence of Pikoli of such behaviour and the very real risk of the very type of result which the Applicant now complains of, he saw fit not to testify in any form or format before the Commission.
The First Respondent has also sought to intervene in litigation in Mauritius concerning the production of certain original documents which the Prosecution seeks to obtain to adduce in the criminal trial of the First Respondent. At issue therein in respect of the issue of locus is very much the question whether the prosecution of the First Respondent is political in the sense that assistance in respect of a Letter of Request for the purpose of such a prosecution, may be refused in such an eventuality. The First Respondent then intends to bring an application reviewing the Mauritian agreement to provide such assistance. The First Respondent in those proceedings in a High Court in Mauritius stated that there was political pressure for him to be prosecuted.
Once again, despite the inferred awareness of these averments, given the communications between the NPA and the Government, and with the LOR and its fate dealt with by diplomatic channels as well, there was no attempt at all to gainsay these allegations through affidavit or other testimony from Mr Mbeki.
In the light hereof, the complaint that Mr Mbeki was not before the Court a quo as a party, appears to be hollow and an ex post facto reaction to an adverse finding which was intentionally risked.
The above evidence and material also demonstrates a fundamental problem with the form of the relief and the mode in which it is sought herein. If Mr Mbeki had filed an affidavit or sought to join as a party with the aim of negating the First Respondent's assertions of political interference, on the basis that they were clearly devoid of all merit, the above and additional evidence would have been filed and if needs be, oral evidence on the issues introduced would have been resorted to with the benefits of cross-examination on these issues.
The material before the Trial Court would then have been very different to what was before it in the Zuma matter. It would, given the nature of the dispute, have been very much the NPA and Mr Mbeki who would have been exposed to the risks of cross-examination.
It is contended that a party cannot have the rights and benefits of a litigant by joining in at the appeal time and at the same time escape the risks of being a litigant from the start. The Applicant seeks a final order effectively expunging all references to him and a variety of other persons in the judgment on the basis that he (and presumably whoever may have been at risk of an unkind statement in that judgment) was not before the Court. He thus avoids the risk of all findings implicating him, the risk of having to adduce evidence and the risk of being challenged in respect of such evidence. The only relief (and I dispute the entitlement thereto) that makes any sense is then to set such findings aside and refer it back to the Court a quo, declaring Mr Mbeki a party to the proceedings and giving the First Respondent leave to supplement its papers concerning the issue of political interference.
The contention is, however, that the Applicant deliberately decided not to join the dispute between the parties and took the risk of adverse comments appearing as part of the reasoning in the judgment.
The Applicant of course never took the risk of any order or judgment being made which operated against him or was binding on him. No such order or judgment was sought nor was such order or judgment made. He clearly was never a necessary party to the litigation in the sense this term is understood in South African Jurisprudence.
I now deal with the Applicant's contention that the Court made adverse findings against him in the form of positive and objective findings.
The Applicant, with respect, misconstrues the findings of the Trial Court. The Trial Court did not find as a matter of positive fact that the Applicant had influenced or sought to influence the Prosecution including the manner thereof. It is necessary to read the dicta in the judgments in the context of the litigation with reference to what the First Respondent's case was.
I digress to explain these.
The application was brought in the following circumstances. The indictment stipulating a trial date of 4 August 2008, was served on the First Respondent on 28 December 2007.
There is a specific process and procedure which is to be followed in the KZN Divisions in enrolling Criminal matters for trial. That practice and procedure was not followed in respect of the setting down of the trial. Consequently the matter of S v Zuma and others was never enrolled for trial in the KZN Division. This issue came to a head when the NPA wrote a letter to the representatives of the Accused complaining about their lack of response to the enrolment of the matter and copying this letter to the Honourable Judge President of the Natal Provincial Division.
The Judge President responded in a letter pointing out that the matter had not been properly enrolled and providing a date for a meeting between himself and all the parties.
At the meeting the Judge President informed the legal representatives that he knew nothing about the trial, in his capacity as Judge President, save reading in the newspapers from time to time of such an impending trial in August of 2008. The matter had never actually been brought to his attention in the prescribed and necessary way. Consequently the Criminal Trial Rolls had been prepared (which did not include S v Zuma) and Judges, Attorneys, Counsel, witnesses, Accused and the like had a roster of cases. There was no extra Court and extra Judge available for a six month plus trial. The Judge President's statement was confirmed by the representative from the DPP's offices, Advocate Engelbrecht.
Zuma's legal representatives indicated that they would nevertheless be willing to raise as a preliminary issue, the S179(5)(d) issue, which in any event, would be raised in initio litis, on 4 August 2008 if a Judge could be made available for a couple of days. The Judge President indicated that he could assist and it was so agreed and recorded by the Judge President as per his letter/minute of the meeting.
The S179(5) proceedings were launched and the Prosecution brought an application to strike out the averments of political interference despite the content of paragraph 163 that the truth of the averments is not wherein their main relevance lay, and persisted in this application. This was what was argued as well in respect of the main issues - there was no need to go any further for the existence of the allegations of conspiracy could hardly have been denied. That was until the Prosecution sought to preclude reliance on this aspect by seeking in their substantive application to strike out these allegations as vexatious, scandalous and irrelevant, and doggedly clinging to that stance. The Court's proper adjudication of that application is what led to the statements concerning the Applicant which he complains about herein.
It is also extremely important that the issue whether Judge Nicholson went outside his mandate in dealing fully with these averments, be placed in perspective.
The Judge had adjourned a dispute which arose between the parties as to the manner of continuation of the criminal proceedings in the event of a judgment adverse to Mr Zuma in the S179 application, to Friday in the event of the parties being unable to come to an agreement. The legal representatives of the NPA and Mr Zuma then came to a written agreement obviating the need for an argument in Court. They approached the Judge in Chambers to inform him accordingly and request him to make the agreement an Order of the Court by Consent. As is often customary, only Counsel went to see the Judge, Mr Zuma represented by Advocate KJ Kemp SC and Advocate A Gabriel, and the Prosecution by Advocate Downer SC and Advocate Steynberg (all these Counsel appeared amongst others at the S179 application).
The Judge made the Consent Order and a discussion about certain issues regarding the S179 application regarding the venue, press coverage etc. followed. The Judge also indicated some issues (not the applications to strike out) which were of concern to him, some of which were resolved, and it was agreed that should he require further argument on an issue, he would ask both sets of Counsel to provide additional submissions. The Judge also enquired that since Senior Counsel who addressed him (Advocates Trengrove and Kemp) dealt with the striking out applications in a very cursory manner in oral argument (which is correct) and were seemingly content to allow these to melt into the background, what he is to make of these - to adopt the same approach or to fully canvass them. The response from Mr Zuma's side was that they would be quite content with a low key approach. The State's response was that these were very serious matters, the averments of political interference etc. were harmful to the Prosecution and that the Court has to deal with the issues. Mr Zuma's representatives then stated that the First Respondent's averments and arguments are on record and the Court must then decide the matter. In short, Counsel agreed settlement between them of these applications was not possible. The learned Judge then in response said that he has no choice but to thoroughly go into these matters and decide the applications. This was the gist of the report made to me by Counsel immediately after the meeting.
In this context the full investigation of the findings and the reasonings of the learned Judge in respect of the Prosecution's application to strike out, were not unnecessary - these were required from him. I further point out that Mr Zuma's Counsel of course reported back to me as the instructing attorney what was discussed pertaining to the case - whilst I and they, have always respected confidential interchanges, the above issues were not of that nature and not intended as such by any party, and the NPA has indeed already referred to what transpired in Chambers in their application for leave to appeal.
The above is the recollection of Counsel and indeed my own (based on their report) of what transpired in Chambers between the Judge and the respective Counsel. Whilst confident of our recollection there is an important facet and qualification. There are very clear customs and principles which govern such interchanges in practice; these are designed to maintain the dignity of the Judiciary and the integrity of the judicial process which rely, inter alia, on the usefulness of such discussions between the representatives and the Bench. Thus while we are confident that what is conveyed above correctly reflects what was said, the recollection of the Judge for obvious reasons, is invariably accepted as the correct version of what transpired. The Judge will most likely record his recollection in the application for leave to appeal and the First Respondent will accept and respect that recordal.
It follows that the learned Trial Judge at the behest of the State had to consider and decide two distinct aspects concerning the allegations made by the First Respondent:
(a) Were these allegations relevant to the subject matter of the disputes raised in the papers? and if so:
(b) Were these allegations, even if relevant, nevertheless still vexatious, scandalous, etc. in the sense that these had no merit at all and clearly should never even have been raised at all.
The onus to establish lack of relevance or vexatiousness in respect of the striking out of these allegations as sought by the NPA, was on the NPA.
The averments made were clearly relevant. Given the NPA's evidence that the mischief S179(5)(d) was designed to combat was political interference in prosecutorial decisions utilizing the office of the "new" all-embracing NDPP as the single apex official, and the manner in which it was contended the NDPP should have reacted to the request to make representations, the contrary is hardly open to question or so the argument ran.
In respect of the second enquiry the First Respondent's case was that, indeed, the mere existence of allegations of a political conspiracy or influence sufficed to negate the existence of vexatiousness. The allegations of a political conspiracy appeared in the press and were aired by a variety of persons (of course the First Respondent also made such statements and persisted in these). The mere fact that such allegations existed and had been aired in the press clearly had an impact on the decision whether the First Respondent should be given a hearing and whether the failure to do so was a deliberate stratagem. Obviously any Prosecution Authority which is concerned about its projected constitutional duties and public perception of compliance therewith and the requirements of the Code and Policy, would have considered the mere existence of these allegations of political manipulation as a factor which would significantly weigh in favour of the First Respondent being given an opportunity to make representations.
As a further investigation as to the lack or presence of vexatiousness, the Trial Court indeed considered whether the facts and circumstances testified to, displayed some merit. It carefully considered the circumstances and other matters deposed to and decided that there appeared to be merit in the First Respondent's averments of political interference in his prosecution. It could thus not strike out the allegations which led to the findings which the Applicant now seeks to impugn, and the State's application to strike out was dismissed. The Court found no more than that in its judgment - that there are such circumstances and facts which give sufficient credence to the First Respondent's averments of political interference that these allegations cannot be struck out. That the Court a quo had to embark on an investigation of the merits of the allegations of political interference is, with respect, obvious on even a very superficial jurisprudential analysis. Even cost orders cannot stand in the air. The NPA's persistence in pursuing its substantive striking out application directly brought this about.
What the Applicant indeed really seems to complain about is that the press, the public and some malicious persons would understand the dicta in the judgment as a final pronouncement that Mr Mbeki is guilty beyond doubt of politically interfering with and influencing the Prosecution (and manner thereof) of Jacob Zuma. With great respect, the fact that some people may misread a judgment or twist its meaning does not give a person, especially one who is not a party to the litigation, the right to appeal or review parts of the reasoning in the judgment, especially where the orders or judgments sought and granted, do not affect such a person directly.
The Applicant complains that because of the "findings" and references to him in the judgment, he was asked to resign from his post as President, and he complied. This seems, for a number of reasons, to be an irrelevant or non-established consideration:
(a) The Applicant did not have to resign; he could have refused. It was then for the ANC to consider whether to remove him despite his desire to remain in his post until his second term runs out between April and July 2009. Whilst it is commendable that the Applicant heeded the wishes of his party as to his resignation, that virtue cannot be elevated into locus standi to bring the present litigation.
(b) It is not so that the Applicant was asked to resign simply because the Presiding Judge made some adverse comments regarding Mr Mbeki's role in the prosecution of Mr Zuma, the First Respondent. The Applicant only had a short time left in the Presidency - he was due to vacate it in the first half of next year. His attempt to remain as the leader of the ANC for a third term which ended in his defeat at Polokwane in December 2007, reportedly evoked strong feelings in many senior members to the effect that the Applicant must go as President as soon as feasible. There were public calls for his resignation prior to the Judgment.
(c) The Applicant has also, in the past, by the manner in which he dealt with matters of policy and those whom he discerned as threats to his position, engendered strong feelings. His views and positions on HIV are but one example.
In short, the First Respondent acknowledges that the Applicant has in many respects, done excellent things as the President. He has, however, like all persons, also done things which are questionable, the cumulative effect of which caused the ANC to expedite his leaving office.
It is thus not correct that the Applicant was dismissed simply because of the statements in the Nicholson judgment. It is not denied that certain statements in the Judgment may well have provided those who have sought the early termination of the Applicant's Presidency with an opportunity to address that issue. What must be remembered is that the accusations of political meddling did not come from the Trial Judge; they came from the leader of the ANC and the Applicant's political rival for that position, the First Respondent, who firmly and honestly believes that the prosecution process against him was encouraged by those opposed to him as a means to prevent him from playing a meaningful leadership role in the ANC. Many persons were unhappy about how the Applicant dealt with Mr Zuma in this regard. The very appearance of the First Respondent in Court and the issues raised by him, focused attention on these accusations. It is an obvious strategic overstatement to allege that the Applicant was asked to resign solely because of what was said in the Nicholson judgment.
It is indeed ironic that the Applicant does even now not recognize the unfairness to Mr Zuma of dismissing him from the office of Deputy President in 2005. That dismissal was justified in terms thereof solely with reference to the statements in the judgment in S v Shaik by Squires J which imputed corrupt actions to Mr Zuma in the latter's absence.
We place on record that Mr Zuma had, prior to 23 August 2003, specifically invited/challenged Mr Ngcuka, the then NDPP, to charge Mr Zuma if the State had a case against him; Mr Zuma sought no favours and said so. The last such challenge came no less than 2 days before Mr Ngcuka's 23 August 2003 announcement. Despite that and the public announcement of a prima facie case against Mr Zuma, Mr Ngcuka flanked by Minister Maduna announced to the world that Mr Zuma was not to be charged with Mr Shaik. Despite this prima facie case, the Prosecution was not sure enough of winning. This was a decision he (and by reason of obvious inference) Mr Maduna both knew would result in a high profile trial where the State would push for findings that Mr Zuma was part and parcel of a corrupt relationship with Mr Shaik where Mr Zuma did certain favours for Mr Shaik in exchange for financial support and that Mr Zuma was party to a bribery arrangement between Mr Shaik, Mr Zuma and Thint where for R500,000.00 per year Mr Zuma would protect Thint from any fall out from the Arms Deal and promote Thint's general commercial interests. The State expected to obtain such a judgment (hence the decision to prosecute Mr Shaik).
When the expected verdict was delivered, Zuma was effectively clearly found guilty in his absence, a verdict diametrically opposite to what was expected or feared should he have been a party to the proceedings. Based on those findings against Zuma, expected in his absence, and unexpected in his presence, after the State had ensured his absence from the proceedings, the then President Mbeki dismissed him as the Deputy President based on the findings, expected as they were.
The very intolerable result Mr Mbeki complains about, is exactly what he visited upon Mr Zuma - according to him he had studied the Shaik judgment, taken advice on it, and decided despite this being appealed and Mr Zuma not being a party, to summarily dismiss him as the Deputy President. This when Mr Zuma protesting his innocence, on the 5th of June 2005, before Mr Mbeki studied the judgment, had resisted a request from Mr Zuma to resign.
There is of course a marked difference; Mr Zuma was deliberately excluded from a judicial process which those in control thereof expected would taint him severely - he had no right to participate as a party - Mr Mbeki had every right to do so (especially given the Rule 16A notice).
The additional point is that if the Applicant is correct, Mr Zuma would be entitled to approach this Court on the same non-joinder basis to set aside all negative references to him in Court judgments. That cannot be.
I now deal with the main contentions of the Applicant regarding his right to launch these proceedings.
The current application is, with respect, an extra-ordinary one for which there is no precedent. It violates or cuts across several basic principles of law which serve to preclude the basic legal system from falling into chaos.
If the relief the Applicant seeks is feasible, it means that given the right to equality, that the First Respondent is entitled to seek the expungement of all references to him in the Shaik judgments in Shaik's criminal trial (DCLD & SCA), the judgment on application for leave to appeal to this Court and the three judgments relating to the asset forfeiture applications. Thus the First Respondent would be entitled to have the statements of Squires J in respect of 19 January 2001 letter (set out elsewhere) expunged as a matter of urgency (presumably after due notice to President Mbeki as a party for the Judicial strictures would then relate to him or does he seek a review from this Court to do so once it has granted Mr Zuma such urgent relief).
One also presumes that Mr Zuma may then even seek an interim interdict precluding the NDPP from deciding whether to prosecute him or not. That is not how the First Respondent and his legal advisors understood the South African legal system but if they were incorrect, the necessary corrective litigation will follow.
The principle is that provided no binding findings or orders are made against a person, Judges can endorse propositions that a person is probably a criminal and guilty of the most serious crimes impacting very severely on his reputation without that person have any locus to complain about it. If the malicious persons Mr Mbeki refers to ever seek to bring him to justice, then he will have every opportunity to expose the findings and remarks in the Nicholson judgment as the alleged mis-statements he claims they are.
It is a well established principle that findings and orders in a Court case only have legal effect and binding force as between the parties before the Court. This is indeed a vital, embracing and necessary element of the justice system to function effectively. This proposition was very much present in the mind of the Judge in the Court a quo, hence his quotation of the dictum in R v Lee, 1952 (2) SA 67 (T).
The multitude of Appeals and reviews which will spring from a recognition of such relief being available to non parties in respect of reasons and obiter dicta in the Judgments of Courts, promises to be legion. A simple reference to who the Applicant considers can appeal the reasons of the Court a quo, calls for at least 20 persons to have been joined.
It is respectfully pointed out that it is an every day occurrence that Judges make adverse remarks about persons other than the parties - witnesses are described as not credible, mendacious, unreliable etc. They may well give their side of the story and in that sense they may be heard but they are not represented as such and they are not in control of the litigation.
Judges frequently make remarks about persons who are not parties or witnesses. The simple illustration is that of A suing B for damages - the Judge finds that C who ran across the road or another motorist who swerved in front of B is the one really to blame without C being joined or being a witness. Indeed, the very principle that a victim may sue any of a number of joint wrongdoers or one of successive wrongdoers, creates the potential for a non-party and non-witness to be fingered in the evidence and the judgment as the proverbial bad apple.
It goes even further than that - is a Judge who listened attentively to an argument of Counsel and on further reflection found it ludicrous and said so in his Judgment, now subject to review or appeal by the Counsel whose dignity is offended by the opinion that his argument is wholly without merit?
I now turn to deal seriatim with the contents of the Applicant's founding affidavit.
AD PARAGRAPH 1:
I dispute that the contents of the Applicant's founding affidavit are true and correct in all respects. The disputes are dealt with in this affidavit.
AD PARAGRAPH 2:
(a) I note the allegations in this paragraph.
(b) The First Respondent denies that the Applicant has locus standi in judicio to bring this application in his "personal capacity". The First Respondent contends that, quite apart from the other difficulties which the Applicant faces in purporting to attack the judgment of Nicholson J, none of the comments of Nicholson J of which the Applicant complains relate to the Applicant in his "personal capacity".
(c) It is correct that as at the date of launching this application (22 September 2008) the Applicant was the President of the Republic of South Africa and Head of the National Executive. The relevant chronology in this regard is, briefly, as follows:
(i) The judgment of Nicholson J was handed down on Friday 12 September 2008.
(ii) On Saturday 20 September 2008 the National Executive Committee of the African National Congress announced its decision to recall the Applicant as President of the Republic.
(iii) On Sunday 21 September 2008 the Applicant deposed to his founding affidavit (as per the date of commissioning thereof) and announced in a televised address to the nation that he had handed a letter to the Speaker of Parliament tendering his resignation as President with effect from a date to be decided upon by the National Assembly.
(iv) On Monday 22 September 2008 the application was launched and the papers were served on the First Respondent, despite the fact that the Applicant had already resigned from a date to be determined by the National Assembly.
(v) The date of the Applicant's resignation determined by the National Assembly was Thursday 25 September 2008.
(d) The First Respondent therefore contends that while the Applicant remained President of the Republic until a date determined by the National Assembly, the Applicant had already resigned from that position when this application was launched. There was no question that his resignation would be accepted and his continued occupation of the office of President after Sunday 21 September 2008 was only as a result of the necessity of attending to the formalities of electing and swearing in the incoming President. In the circumstances, the First Respondent disputes that the Applicant has locus standi in judicio as the President of the Republic or the Head of the National Executive.
(e) The First Respondent denies that this application is in the public interest, for reasons which will be dealt with later in this affidavit.
(f) I do not understand what the Applicant means by his assertion that the National Executive took a "formal decision in principle" to appeal the judgment of Nicholson J. The Applicant does not explain what he means by this assertion, and he does not put up any documentation in support thereof, including the Minutes of any Cabinet meeting on which he may rely. As far as I am aware, neither the former National Executive, nor any member thereof, has taken any steps to "appeal" the judgment of Nicholson J.
(g) In the circumstances, the First Respondent does not admit the allegations in the concluding sentence of paragraph 2.
AD PARAGRAPH 3:
The submissions of law made by the Applicant are disputed on grounds which are set out in this affidavit and which will be dealt with in argument, should this Court hear argument.
AD PARAGRAPHS 4 AND 5:
The Applicant purported to suspend the National Director of Public Prosecutions on or about 23 September 2007. The suspension is the subject of a formal Commission of Inquiry, the outcome of which has not yet been published. I believe the Applicant appointed Mr. Mpshe as Acting National Director of Public Prosecutions on or about 23 September 2007.
AD PARAGRAPH 6:
(a) The First Respondent disputes that the Applicant makes out a case for direct access to this Court, or a case for urgency, and the First Respondent disputes that the Applicant is entitled to seek leave to appeal against the judgment of Nicholson J. These matters are dealt with in detail elsewhere in this affidavit.
(b) While the Applicant does not specify the "certain findings" of Nicholson J against which he seeks leave to appeal (the contents of the judgment of Nicholson J to which the Applicant refers later in his affidavit will be dealt with in turn below), the First Respondent contends that those portions of Nicholson J's judgment to which the Applicant refers do not constitute "findings", but constitute reasons which, for the most part, form part of the ratio decidendi of the judgment, or constitute inferences properly drawn from facts which were either common cause or not in dispute or parts of his reasoning pertaining to the strike out application of the State.
(c) The "findings" which the Applicant purports to "deny" (without elaboration) flow from one of the core principles on which the judgment is premised, viz. the independence of the Second Respondent, as Head of the National Prosecuting Authority, from political interference in the performance of its powers, functions and duties. This is central to the judgment of Nicholson J.
(d) In any event, the "findings" which the Applicant "denies" in his affidavit do not constitute judgments or Orders which have any final or definitive effect. They are therefore not appealable by any person, including the Applicant.
AD PARAGRAPH 7:
(a) The First Respondent disputes that the Applicant makes out any case for the relief sought in this application. This matter has been dealt with fully elsewhere in this affidavit.
(b) Save as aforesaid, the First Respondent denies the allegations in paragraph 7, for reasons which have been dealt with elsewhere in this affidavit. The First Respondent further contends that, in any event, Nicholson J made no "findings" of any nature at all concerning the Applicant in his personal capacity.
AD PARAGRAPHS 8 TO 11 (INCLUSIVE):
(a) The First Respondent sought declaratory relief before Nicholson J that the decisions taken by the Second Respondent in June 2005 and December 2007 to prosecute the First Respondent were invalid, together with an Order setting aside as invalid the indictment served on the First Respondent on 28 December 2007 pursuant to the second of those decisions.
(b) The First Respondent's right of action was firstly founded on the Second Respondent's breach of the Second Respondent's duty in terms of Section 179 (5) (d) of the Constitution (repeated in Section 22 (2) of the National Prosecuting Authority Act, No. 32 of 1998) to arrange and allow the First Respondent to make representations to the Second Respondent before the Second Respondent reviewed a decision taken in August 2003 by the National Prosecuting Authority not to prosecute the First Respondent. It was secondly founded on the NPA's failure to grant it a prior hearing after the First Respondent had specifically requested a hearing in October 2007.
(c) The Applicant dealt in his founding affidavit with the relevant background and history of the matter, including the history of the prosecution against him, and relied, inter alia, on the case that he had consistently made that the history of the prosecution, and the conduct of the prosecution, were beset by political interference, ultimately from the office of the Applicant. In the circumstances, the First Respondent contended that there was particular reason for the NPA to uphold its constitutional duty, and the First Respondent's corresponding right, to allow the First Respondent a hearing before reversing its prior decision not to prosecute the First Respondent. The case made out by the First Respondent was that not only had the Second Respondent failed to comply with its constitutional duty to allow the First Respondent a hearing, but the Second Respondent had done so deliberately and egregiously. These considerations were also very much applicable to the manner in which the NPA negated the specific October 2007 request to be heard.
(d) The Second Respondent delivered lengthy and detailed affidavits dealing with the history of the matter, the history of the legislative provisions in question and their predecessors, the purpose of the legislative provisions and the proper interpretation thereof. The Second Respondent disputed the First Respondent's averments that there was any political interference in the prosecution or the conduct thereof.
(e) In addition to delivering substantial answering affidavits, the Second Respondent launched an application to strike out portions of the contents of the First Respondent's founding affidavit which were said to be "scandalous", "vexatious" and "irrelevant". The primary thrust of the strike out application was against the First Respondent's case that he was "a victim of a political conspiracy" (to use the words of the Second Respondent). The motive ascribed by the First Respondent to political interference in the prosecution was to deny the First Respondent the opportunity to participate in a leadership role in the African National Congress. The Applicant was the President of the African National Congress until December 2007 when the First Respondent won a landslide victory over him at Polokwane.
(f) The Second Respondent went further and endeavoured to make out a case that not only should the allegations of which it complained be struck out, but that a punitive costs Order should be made against the First Respondent because such allegations had become a consistent feature of the litigation between the First and Second Respondents and were fuelling a "growing perception" that the First Respondent could not "have a fair trial". The "perception" referred to was plainly a public perception of which the Applicant could not have been unaware. I point out that in the light of the contents of Second Respondent's strike out application, the Applicant can hardly contend that he was unaware of the fact that the First Respondent had consistently contended that the First Respondent's prosecution was bedevilled by political interference and ulterior motive, and that he did so again in his papers before Nicholson J.
(g) These were then the issues which Nicholson J was called upon to decide. He decided them in favour of the First Respondent. The ratio for his judgment that it was necessary for him to decide allegations concerning "political meddling in the prosecution process" appears, in particular, at paragraphs  and  and .
(h) Save as aforesaid, the First Respondent disputes the allegations in paragraphs 8 to 11 of the Applicant's founding affidavit.
AD PARAGRAPH 12:
(a) The First Respondent does not concede that the "findings" referred to in the Applicant's founding affidavit, of which the Applicant complains, were made obiter. The First Respondent contends that the "findings" of which the Applicant complains must be read in the context of the judgment as a whole, and that the "findings" are integral to the ratio decidendi of the judgment on the strike out applications. The Applicant does not attack the Order of the Court - he restricts his attack to the "findings" of which he complains in particular. The First Respondent contends that it is neither permissible, nor is it in the interests of justice, that a judgment of a Court, binding between the parties to that judgment, be effectively undermined by allowing a stranger to that judgment to seek to impugn its reasoning but not directly its outcome.
(b) The First Respondent further disputes that the "findings" of which the Applicant complains were restricted to the striking out application or to the application of the amicus, in that the allegations of political intermeddling / interference existed were also relevant to the main relief.
AD PARAGRAPHS 13 AND 14:
The Applicant was not a necessary party to the litigation. The judgments or orders do not bind him, nor do they directly affect him. Whether the First Respondent's prosecution was invalid or whether the NPA failed to convince the Judge that the averments in issue were vexatious - does not operate as res judicata; in law they say nothing about the First Respondent. I have already explained why the Judge had to consider these issues given the strike out application. I further point out that while the proceedings may have been classified as civil, they were very much associated with criminal proceedings where there is little room for intervention by third parties.
AD PARAGRAPHS 15 AND 16:
(a) In paragraph 15 the Applicant lists various "findings" of which he complains and proceeds, in paragraph 16, to utter a bald denial concerning their correctness.
(b) There are three central problems with this approach :
(i) Some of the "findings" are incorrectly recorded or incorrectly referenced, or are recited incompletely or out of context, necessitating my dealing therewith below.
(ii) The Applicant fails to make any allegation of fact concerning what he considers the correct position to have been. It is therefore not possible to fathom precisely what the nature and grounds of the Applicant's complaint might be.
(iii) The bald denial is, in most cases, unsustainable and indefensible and therefore falls to be rejected on the papers as they stand.
AD PARAGRAPH 15.1:
(a) The quotation is incomplete and therefore misleading. For the purpose of the record and the convenience of the Court, the relevant dictum is set out below in full.
(b) After referring to the well known principle of law that a judgment in civil or criminal proceedings does not constitute evidence, nor is it binding, against persons who were not party to those proceedings [a principle which the Applicant appears to overlook in these proceedings], Nicholson J held the following at  :
"At common law, had the Applicant been an ordinary employee and not Deputy President or a Cabinet Minister, it would have been illegal for the President to have taken into account the judgment of Mr. Shaik in dismissing the Applicant. According to Section 90 (2) of the Constitution, however, the President appoints the Deputy President and Cabinet Ministers, assigns their powers and functions, and may dismiss them. Even though the President's decision was unfair and unjust, given the fact that the Applicant was not given a chance to defend himself in a Court of law, it was not an illegal act given his power to hire and fire his Deputy or Cabinet Ministers, at his will".
(c) The Applicant does not say what his complaint is in respect of the aforequoted dictum. The First Respondent contends that it is indisputable that the First Respondent was in fact not given a chance to defend himself when the Applicant dismissed him as Deputy President in June 2005.
AD PARAGRAPH 15.2:
(a) The reference in the third line to the "Second Respondent" is incorrect. The dictum referred to appears at paragraph  of the judgment and makes specific reference to the Applicant. The dictum in question reads as follows:
"He [i.e. the First Respondent] would not, obviously, be privy to the oral or written instructions that the executive may have given to the prosecuting authority".
(b) It is difficult to understand precisely what the Applicant complains of in this regard. The First Respondent respectfully contends that the dictum is incontrovertible.
AD PARAGRAPH 15.3:
(a) It is correct that Nicholson J referred to a political struggle and rivalry between the First Respondent and the Applicant. The fact is notorious. What Nicholson J said in this regard was as follows at  :
"The titanic political struggle between the Applicant and the President is no concern of the Court unless it impacts on issues to be decided in this application. The rivalry of the Applicant and the President is hardly open to question and the polarisation of the country into opposing camps before and after Polokwane is well known. The President of this country is restricted to two terms of office by operation of the Constitution and his campaign to seek the leadership of the ANC was hotly contested by the Applicant".
(b) The First Respondent contends that the dictum of Nicholson J at  (to the effect that the Applicant's decision to stand as party leader was controversial and not in accordance with the Westminster system we espouse in this country) is also incontrovertible. Neither the nature of the Applicant's complaint, nor the grounds thereof, are specified.
AD PARAGRAPH 15.4:
(a) At paragraphs  to  Nicholson J grappled with the intractable problem of Mr. Ngcuka's use of the adjective "unstinging" (sic) at the media briefing convened by Messrs. Maduna and Ngcuka on 23 August 2003. Nicholson J found that whether Mr. Ngcuka meant to use the word "unstinting", or whether he meant that Mr. Maduna's support was "generous", then, in either event, the statement was perplexing because Mr. Maduna, as the then Minister of Justice and Constitutional Development, had no role of any nature whatsoever to play in the decision as to whether or not the First Respondent was to be prosecuted.
(b) In the circumstances, Nicholson J's use of the words "generous support" was simply a reflection of what Mr. Ngcuka must have intended to convey to the world on 23 August 2003.
(c) The First Respondent respectfully submits that Nicholson J drew a correct and relevant inference from the common cause facts. His conclusion that any political interference in the decision whether or not to prosecute the First Respondent was unlawful, with respect, is beyond question. The conclusion is expressly founded on the provisions of Section 179 of the Constitution and the judgment of Bertelsmann and Preller, J.J. in State v. Yengeni and the inference was drawn on the basis of well established principles of law. Neither the nature of the Applicant's complaint nor the grounds thereof are discernible from his affidavit.
AD PARAGRAPH 15.5:
(a) The First Respondent respectfully contends that Nicholson J was correct on both the law (the constitutional requirement that the NDPP be completely independent of political interference) and the inference he drew from the proved facts (i.e. that the then Minister of Justice and Constitutional Development had, at the very lowest, played a not insignificant part in the decision to withdraw charges against Thint in the Shaik matter.
(b) The Applicant avers that Nicholson J found that "the Applicant was aware of this "presumably" unlawful conduct and agreed therewith".
(c) What Nicholson J did was to proceed to pose the question "Is it possible that Mr. Maduna was on a frolic of his own or acting on instructions?" Nicholson J answered that question by concluding: "It seems very improbable that in so important a matter as one involving the Deputy President (his political superior) a mere Minister would get involved without the President knowing and agreeing". (See ).
AD PARAGRAPH 15.6:
(a) The First Respondent respectfully contends that the conclusion of Nicholson J that the meetings between the NPA and the Director-General in the Presidency from about February 2006 could only have related to matters concerning the prosecution of the First Respondent, is correct. No factual ground is established for attacking that conclusion.
(b) The conclusion of Nicholson J is, if anything, reinforced by the fact that the Applicant has put up a confirmatory affidavit by the Director-General in the Presidency. The Director-General does not even deal with this aspect of the matter, still less deny that the conclusion of which the Applicant complains is incorrect. In the circumstances, the conclusion that the meetings indeed concerned the prosecution of the First Respondent is inescapable.
AD PARAGRAPH 15.7:
(a) The First Respondent respectfully contends that any denial by the Applicant of the facts stated by Nicholson J in this paragraph is unsustainable. There was indeed no attempt by Mr. Pikoli to deal with the allegation of the blatant interference by the Minister. There was indeed no refutation that the Selebi warrants were cancelled by Mr. Mpshe after political interference and that Pikoli was suspended because he refused to do so. In the circumstances, it is difficult to criticise the inference drawn by Nicholson J that there was indeed political interference at the time Mr. Mpshe was contemplating charging the Applicant and that there is reason to believe that the decision to prosecute Mr. Selebi was not palatable to the Applicant, but the decision to prosecute the First Respondent was.
(b) Again, neither the nature nor the grounds of the Applicant's complaint in this regard is discernible from his affidavit.
AD PARAGRAPH 15.8:
(a) I have already dealt with Nicholson J's conclusions regarding political interference by members of the Cabinet and the President's responsibility therefor.
(b) What Nicholson J said in his judgment at  was simply "It seems very improbable" that the President would not know of and agree with a cabinet member's actions concerning the Deputy President.
(c) Again, neither the nature of the Applicant's complaint, nor the grounds therefor, are apparent from his affidavit.
AD PARAGRAPH 15.9:
(a) In the interests of completeness, and therefore accuracy, I set out in full for the convenience of this Court the relevant dictum of Nicholson J at  :
"There is a distressing pattern in the behaviour which I have set out above indicative of political interference, pressure or influence. It commences with the `political leadership' given by Minister Maduna to Mr. Ngcuka, when he declined to prosecute the Applicant, to his communications and meetings with Thint representatives and the other matters to which I have alluded. Given the rules of evidence the Court is forced to accept the inference which is the least favourable to the party's cause who had peculiar knowledge of the true facts. It is certainly more egregious than the `hint or suggestion' of political interference referred to in the Yengeni matter. It is a matter of grave concern that this process has taken place in the new South Africa given the ravages it caused under the apartheid order".
(b) Again, the nature and grounds of the Applicant's complaint about this dictum are unstated. Despite the dictum, the Applicant evidently remains reluctant to place his version before the Court, despite the fact that it is he who has peculiar knowledge of the true facts.
AD PARAGRAPH 16:
(a) I have already dealt with the Applicant's bald denial advanced in this paragraph. The First Respondent respectfully contends that the denial is untenable and, in any event, unsubstantiated by placing what the Applicant contends are the true facts before this Court.
(b) The First Respondent denies, as has been stated above, that any of the "findings" of Nicholson J relate to the Applicant in his personal capacity, and therefore that any of the "findings" could have been prejudicial to the Applicant in his personal capacity. If they were, the Applicant has a perfectly sufficient remedy in delict (including proceedings for defamation or injuria) against any person, including Nicholson J, whom the Applicant may consider has defamed him.
(c) The First Respondent further disputes that the "findings" of Nicholson J have been prejudicial to the office of the President. No evidence is presented in support of this conclusion (unsubstantiated by any factual allegation concerning the nature of the prejudice or how it was caused) and the First Respondent respectfully contends that it is untenable.
(d) Insofar as the Applicant's contentions concerning prejudice to the National Executive and the Cabinet member(s) responsible for the administration of justice, are concerned, the First Respondent respectfully disputes that there is any prejudice to the National Executive, nor any evidence thereof presented by the Applicant in this application. Furthermore, the Applicant does not purport to bring this application on behalf of the National Executive or the Cabinet member(s) responsible for the administration of justice. The allegations are therefore irrelevant.
(e) The Applicant proclaims that he is wholly innocent of any political or other meddling or manipulation in respect of the prosecution process relating to Mr Zuma. I assume that this is a general statement made on the basis that if the Applicant had indeed admitted the same, there could be not even a suggestion of an appeal or a review. I understand the Applicant's case to be that it is not necessary to debate the actual merits thereof in respect of this application. That seems to follow from the general denial made whereas there were specific facts and circumstances relied upon in the S179(5) papers, which the Applicant did not deal with herein. Nor has the Applicant sought to introduce the record of proceedings. I accept this approach on the basis that the nature of this application does not require the blame or complicity in this regard of the Applicant to be established. If I misunderstood this and the Applicant relies on his protestation of innocence as specific evidence of the incorrectness of the findings impugned, then the Applicant must state this as the First Respondent takes issue with the general protestation and will then fully address this issue on affidavit.
AD PARAGRAPH 17:
(a) I have already referred to the remedies that a person, including the Applicant, has in the event that he considers himself injured in his good name, reputation and his right to human dignity. His remedy lies in delict, not approaching this Court for direct access for the relief which the Applicant seeks.
(b) The Applicant is not without remedy as well. If he considers the findings made to be defamatory he can sue the Judge for defamation; those findings the Applicant has characterized as vexatious and scandalous - if he is correct, he has a case for defamation.
(c) Moreover, those findings are based to some extent on the averments made by the First Respondent; there is nothing stopping the Applicant from clearing his name by successfully suing the First Respondent for the vexatious and scandalous allegations made, if so advised.
(d) That would be a far more effective way of negating the harm the Applicant complains of.
(e) The Applicant can further seek to complain to the JSC about the conduct of the Judge in the Court a quo if he considers that it transgressed the parameters of Constitutional conduct. That would at the very least give the Judge a fair opportunity in an appropriate forum to defend himself; the suggestion that he should be a party to this application seems wholly without merit.
(f) The First Respondent respectfully contends that Nicholson J was duty bound to do so and to confront unconstitutional executive action in accordance with the judgment of this Court In re: Certification of the Constitution of the RSA 1996 (4) S.A. 744 (Judgment at  to ). However, the issue of the Applicant's office is incidental to this. Interference with the prosecution is unlawful for any one; the litigation before Nicholson J had nothing to do with a mandamus enforcing positive conduct in accordance with the Constitution.
AD PARAGRAPH 18:
The First Respondent admits the allegations in paragraph 18.
AD PARAGRAPH 19:
(a) The Applicant's reference to Section 167 (4) (c) of the Constitution makes no sense. The application before Nicholson J was not an application envisaged in Section 80 or Section 122 of the Constitution.
(b) If the Applicant intended to rely on the provisions of Section 167 (4) (e) of the Constitution (and this can only be an assumption on the part of the First Respondent), the First Respondent respectfully contends that such reliance would be misplaced. Nicholson J was primarily not asked to decide that Parliament or the President had failed to fulfil a constitutional obligation - Nicholson J was asked to decide that the Second Respondent had failed to fulfil his constitutional duties in terms of Section 179 (5) of the Constitution. In that process and prompted by the State's strike out application, Nicholson J (correctly, with respect) addressed the issue of whether or not allegations of unconstitutional executive interference in the prosecution was a figment of the First Respondent's imagination, and came to the conclusion that there was indeed reason to allege that there had been such interference. Nicholson J's conclusion in that regard is not binding on the Applicant or on the National Executive, for reasons with which I have dealt above.
AD PARAGRAPH 20:
I have dealt elsewhere in this affidavit with the allegations in paragraph 20. Save as may be consistent therewith, I deny the allegations in this paragraph.
AD PARAGRAPH 21:
(a) Ms. Mabandla is no longer the Minister of Justice and Constitutional Development.
(b) The Applicant does not purport to bring this application on behalf of Ms. Mabandla or Mr. Maduna.
(c) As far as I am aware, neither Ms. Mabandla nor Mr. Maduna have taken any steps to approach this Court or any other Court arising out of the judgment of Nicholson J.
AD PARAGRAPH 22:
The First Respondent disputes the allegations in this paragraph, for reasons which have been dealt with elsewhere in this affidavit.
THE APPLICANT'S STANDING
AD PARAGRAPH 23:
I deny that the Applicant has standing in his personal capacity to approach this Court to "clear his name" and deny further that he may approach this Court directly which I deal with below. I deny that the Applicant has any standing in any of the other capacities claimed. The Applicant knew when he lodged this application that he had tendered his resignation and knew that it would be accepted. There is thus no basis on which the Applicant can continue to claim standing as Head of the National Executive or on behalf of the Executive as this stage. As matters presently stand, the Applicant cannot be said to be pursuing the interests of the current National Executive or the President of this country.
I deny that the Applicant has standing, in these circumstances, to approach this Court in the public interest. The relief that the Applicant essentially seeks is directed at himself and former members of the Cabinet who are not parties to these proceedings. It is entirely unclear how it could be said that such relief will further the public interest and I deny that it will do so.
AD PARAGRAPHS 24 TO 25:
I submit that it is clearly not in the public interests nor in the interests of justice for the Applicant to be granted direct access to this Court.
The Second Respondent has indicated that it intends to appeal and delivered its application for leave to appeal on 30 September 2008. Mr. Zuma intends to oppose that application. The relief that the Applicant seeks in these proceedings will inevitably have the effect of interfering in those pending proceedings and related appeal and will prejudicially affect the parties to those pending proceedings by at least pre-empting the outcome of that pending appellate process. In these circumstances, I respectfully submit that it cannot be in the interests of justice for this Court to deal with the issues the Applicant wants it to deal with as they are clearly going to be considered by other Courts.
What the Applicant effectively seeks before this Court is to interfere with the administration of justice in and the functioning of those other Courts.
Mr. Zuma is already on record as having stated that he may, at the relevant stage, in a permanent stay application, raise pertinently the truth of the allegations that the Applicant finds offensive.
I respectfully submit that any pronouncement by this Court, at this stage, on these issues, in the absence of a full and proper hearing of all facts and all parties, will affect those proceedings which may ultimately affect the fairness of Mr. Zuma's criminal trial.
The Second Respondent has said that it will supplement its papers in these proceedings once it files its application for leave to appeal. In any event, it has already stated and its grounds of appeal include many of the matters that the Applicant finds offensive in the judgment. To permit substantially similar issues to be raised in this forum, without a proper ventilation of the issues, can in my submission simply not be said to be in the interests of justice.
AD PARAGRAPH 26:
The Second Respondent has already indicated its position in this regard and given the view it takes of the matter, I submit that it would not be in the interests of justice to grant this application on the basis that what is sought relates to the Applicant in his past official capacity or former members of the National Executive. It is to be noted that those former members of the National Executive that the Applicant refers to are not parties to this application. In any event, it is entirely unclear from the parties before the Court, what the attitude of the new National Executive is to these proceedings.
AD PARAGRAPH 27:
I do not dispute this analysis. There are very sound reasons why such appeals are not allowed.
AD PARAGRAPH 28:
This Court has in itself, endorsed the position with respect to appeals which must be against judgments and orders and not against comments made in the course of the judgment or solely on the basis of the reasons for such judgment. I submit that there are cogent reasons for not permitting appeals made on the basis solely of reasons where these are unconnected to an appeal against the substantive order by a Court. I dealt previously with the potential for chaos in the administration of justice if appeals were to be entertained on the basis that the Applicant proposes to do so in this application. Matters are complicated in this instance because of the pending appellate process. I respectfully submit that in these circumstances this Court ought not to depart from that well-established body of law relating to what is appealable and what is not.
In any event, I submit that what the Applicant seeks in the alternative, is effectively an opportunity to review the judgment of a Judge of the High Court, which is impermissible in our law. I am unable readily to discern any provision in the Constitution that would permit this and the Applicant points to none.
AD PARAGRAPH 29:
I dispute these allegations.
AD PARAGRAPH 30:
I accept that in the High Court rescission or variation can only be in respect of a judgment or order but deny that the Applicant is left permanently without judicial remedies. The present challenge is in any event wholly premature.
The Applicant cannot, in the circumstances, be said to be without any remedy and I respectfully submit ought not to be allowed to seek assistance from this Court when it would be at the expense of and prejudicial to the parties to the litigation.
AD PARAGRAPH 31:
I dispute that the so-called "findings" are irregular. I demonstrated earlier that the context in which those "findings" must be interpreted. I dealt earlier with the reasons for the recalling of the Applicant by the National Executive of the African National Congress.
The fact that comments are being offered in the public and in the media about the Applicant, which the Applicant does not like, does not elevate the judgment to one which can be said to be "irregular". It is a matter of public record that the Applicant, both during and after his tenure as the President received adverse commentary both from members of the public and in the media on matters, such as his stance on HIV/AIDS, which have nothing to do with the judgment. That is a consequence of standing for and accepting public office.
AD PARAGRAPH 32:
I dispute these allegations. The Applicant's essential complaint is directed at the adverse commentary he is receiving from the public and the media which cannot in and of itself mean that it is in the interests of justice for this Court to grant the Applicant the relief he seeks. To the contrary, I submit that the interests of justice would in any event be better served by allowing the pending appellate process to take its course. It is not in the interests of justice and the justice system to allow challenges to the reasoning and findings of a Court in the process thereof.
AD PARAGRAPH 33:
I dispute these allegations. I dealt previously with the many opportunities and avenues presented for the Applicant and former members of the Executive to deliver evidence in pending proceedings or to intervene or to respond to the 16A Notice.
Oral evidence may well be necessary if the Applicant seeks to assert, as a fact, to be determined in these proceedings that he is wholly innocent of any political or other interference in the prosecution of Mr. Zuma.
AD PARAGRAPHS 34 TO 37:
I dispute that there is any urgency in these proceedings; indeed if anything they are premature.
The Applicant has already resigned as President and there is a pending appellate process.
I specifically deny that any of the Applicant's constitutional rights have been violated and given that he is no longer the Head of the National Executive, there appears to be no basis on why the Applicant ought to be afforded preferential treatment over normal Court processes and procedures.
I do not understand what is meant by the allegation that "there is a real possibility that persons with malicious intent could act on it "to the detriment of the Office of the President of the Republic of South Africa, Members of the National Executive and to me personally ...". This is speculation unsupported by any factual basis.
I dealt previously with the fact that this Court does not have the views of the current National Executive before it.
I deal with the supplementary affidavit:
AD PARAGRAPH 2:
There is no application by the Cabinet before this Court.
The Cabinet which took the Resolution referred to, is no longer in existence as the Deponent states. There is now a new Cabinet under a new President. There has been no application for leave to appeal by such a Cabinet or by the previous Cabinet and no indication at all that the new President and/or Cabinet has resolved to launch such an appeal.
The Applicant is only entitled to bring this application in his personal capacity. On what basis he can bring the application in the public interest, is not clear - whilst the Presidency's views may have some claim to be representative of the public interest, it is not at all clear how the Applicant can as an individual stake such a claim. If so there are undoubtedly numerous other parties who would seek to oppose his application vigorously in the public interest.
AD PARAGRAPH 3:
I note that the Applicant assumes that he may, as of right, supplement his founding affidavit. Be that as it may, the relevance of the constitutional principle of separation of the powers of one to the present issue, is disputed.
AD PARAGRAPH 4:
The Applicant complains about the Judge a quo transgressing upon the separation of powers doctrine. This objection firstly focuses on the remarks made by the learned Judge in respect of the desirability of the appointment of a Commission to investigate the entire Arms Deal. These remarks were not prompted by anything the First or Second Respondents argued - they were prompted by the statements made by the Applicant for admission as an Amicus Curiae in his application. These remarks were wholly obiter and not relevant as between the two Respondents herein and the First Respondent has no interest at the factual level whether this Court sets aside such remarks or not. The First Respondent does however have very serious reservations about such a challenge at all being entertained and thus recognized as open.
It is clear that the Judge nowhere in making such remarks transgressed on the doctrine of the separation of powers. All he said is that whilst the idea of the Amicus Curiae to call for a Commission of Inquiry into the Arms Deal has merit, it is not within his powers, much as he may have found the idea appealing, to order such a Commission. If anything that clearly constitutes judicial recognition of the Presidential prerogative in appointing a Commission of Inquiry. Judges frequently express dismay about their inability to assist a litigant; it is recognized by all right thinking members as society for what it is - simply an expression of opinion. If ever such obiter remarks could attract review or appeal process, the sheer impracticality would clog the appeal process even further and offend the very rationale of provisions such as Section 21A of the Supreme Court Act 59 of 1959 which aims to alleviate the burden on Appeal Courts by eliminating at the outset appeals which can only result in academic success in relation to the reversal of the orders made.
AD PARAGRAPH 5:
This paragraph constitutes carping, and with respect, unfounded criticism of the judgment.
AD PARAGRAPHS 6 - 12:
A statement in the judgment is isolated and then attacked on the basis that it gives the wrong impression. It is not clear to whom it will give such a wrong impression. The Applicant, with respect, fails to adhere to the first rule of construction - interpretation is an exercise to establish the meaning of words in a particular context. In context the statement meant that there should be no relationship between the Minister and the NDPP in that the sense that they should not discuss and allow input from the Minister as to what prosecutorial decisions whether to prosecute or not should be taken, and how such processes should be implemented. There is nothing wrong with such a general sentiment; indeed it accords great respect to the separation of powers doctrine. If the Applicant means by the statements in paragraph 12 that Mr Zuma accepted his decision to dismiss him in the sense that he did not seek to challenge it in a Court of law or tried to lead a political Palace revolution to reverse it, he is correct. If he means by that that Zuma consented to it or regarded it as proper or as fair or just, that is wholly taken issue with. Mr Zuma regarded his dismissal as unjust and unfair and he in no way consented to it - indeed he refused to resign when requested to do so by the Applicant on those very grounds and asserted his innocence. In short, Mr Zuma resisted his dismissal in so far as it was feasible for him to do so.
The First Respondent, for the Record, takes issue with the statement that the Applicant exercised the power to dismiss him "properly and responsibly" or that what passed between them constituted "consulting".
With respect, very few people would be persuaded by reading the statement in context, that the learned Judge sought thereby to negate the statutory provisions the Applicant refers to, and the suggestion to that effect is somewhat mischievous.
AD PARAGRAPH 13:
This is a reiteration of the main complaint.
I submit that the application ought to be dismissed with costs, including those consequent upon the employment of three counsel.
I HEREBY CERTIFY that the deponent has acknowledged that he/she knows and understands the contents of this affidavit which was signed and sworn to before me at on this the day of 2008, the provisions of the Regulations contained in Government Gazette Notice R35 dated 14 March 1980 having been duly complied with.
COMMISSIONER OF OATHS