National Director of Public Prosecutions v Zuma

Jacob Gedleyihlekisa Zuma challenged the validity of decisions by the National Director of Public Prosecutions (NDPP) to indict him on charges including corruption and racketeering. Earlier, in 2003, the then NDPP (Ngcuka) had announced that Zuma would not be prosecuted, although his associate Schabir Shaik was. After Shaik’s conviction, subsequent NDPPs (Pikoli in 2005 and later Mpshe in 2007) decided to prosecute Zuma. Zuma applied to the High Court to set aside the later decision, arguing that it constituted a ‘review’ of the earlier Ngcuka decision and that, under s 179(5)(d) of the Constitution and principles of just administrative action, he should have been invited to make representations before the decision to prosecute was taken. Nicholson J in the Pietermaritzburg High Court upheld Zuma’s application and set aside the prosecution decision. The NDPP appealed to the Supreme Court of Appeal, and Thabo Mbeki and the Government sought to intervene.

The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order dismissing Zuma’s application and awarding costs against him, including costs on an attorney-and-client scale for certain applications. The application by Thabo Mbeki and the Government to intervene was dismissed.

This case is a leading authority on the constitutional position and independence of the National Prosecuting Authority, the interpretation of s 179(5)(d) of the Constitution, and the limits of judicial intervention in prosecutorial decision-making. It reaffirmed that prosecutorial decisions to institute criminal proceedings are generally not subject to administrative-law review and clarified the proper approach to factual disputes in motion proceedings. The judgment is also significant for its strong restatement of separation of powers and judicial restraint.