Jacob Gedleyihlekisa Zuma v Democratic Alliance; Acting National Director of Public Prosecutions v Democratic Alliance

In April 2009 the Acting National Director of Public Prosecutions (ANDPP), Mr Mokotedi Mpshe, decided to discontinue the prosecution of Mr Jacob Zuma on serious charges including corruption, racketeering, fraud and money laundering. The decision followed written and oral representations made by Mr Zuma under s 179(5)(d) of the Constitution, which relied heavily on allegations of a political conspiracy within the NPA and on intercepted telephone recordings implicating senior officials, particularly Mr Leonard McCarthy. The prosecution team consistently maintained that the case against Mr Zuma was strong and untainted, and that any alleged prosecutorial impropriety should be dealt with by a trial court. The Democratic Alliance challenged the 2009 decision in the Gauteng Division of the High Court, which reviewed and set aside the decision as irrational. Mr Zuma and the NPA appealed to the Supreme Court of Appeal.

The applications for leave to appeal were granted, but the appeals were dismissed with costs. The decision of the High Court reviewing and setting aside the 2009 discontinuation of the prosecution was confirmed, with costs ordered jointly and severally against the NPA and Mr Zuma.

The case is a leading authority on the application of the principle of legality to prosecutorial decisions and confirms that decisions of the National Prosecuting Authority are subject to judicial review for rationality. It reinforces prosecutorial independence while making clear that alleged political interference does not, without more, justify abandoning a prosecution where the merits remain strong.