Democratic Alliance v The Acting National Director of Public Prosecutions

In April 2009, the Acting National Director of Public Prosecutions (NDPP), Mr Mokotedi Mpshe, decided to discontinue corruption charges against Jacob Zuma (who later became President of South Africa). The Democratic Alliance (DA), a registered political party and official opposition, sought to review this decision. The DA requested the record of the decision under Rule 53 of the Uniform Rules. The prosecution authorities refused to provide the record, claiming it contained confidential representations made by Mr Zuma on a without prejudice basis. The NDPP indicated it would challenge: (1) the DA's locus standi; and (2) the reviewability of the decision to discontinue prosecution. Two other parties, Richard Young and CCII Systems (Pty) Ltd, applied to intervene as applicants. CCII had been an unsuccessful bidder in the arms procurement process and alleged its deselection occurred in questionable circumstances. The North Gauteng High Court dismissed the DA's application for the record and refused the intervention application, finding the DA lacked standing and that the decision was not reviewable. The DA and the intervening parties appealed.

• Whether a decision by the NDPP to discontinue a prosecution is subject to judicial review
• Whether the DA has locus standi to bring a review application challenging the decision to discontinue prosecution
• Whether the NDPP is required to produce the record of its decision (excluding confidential representations)
• Whether Mr Young and CCII Systems have standing to intervene in the review application
• The scope of constitutional review of exercises of public power under the rule of law principle in section 1(c) of the Constitution
• The applicability of section 38 of the Constitution (enforcement of Bill of Rights) to the review application
• Whether Uniform Rule 53 applies to decisions that fall outside the definition of 'administrative action' in PAJA

The appeal by the first appellant (DA) was upheld with costs, including costs of two counsel. The first and third respondents were ordered to pay these costs jointly and severally. The appeal by the second and third appellants (Young and CCII) was dismissed with costs. The court substituted the High Court's order, directing: (1) The respondents' objection to the DA's standing is dismissed; (2) The decision of 6 April 2009 to discontinue prosecution is subject to review; (3) The NDPP must produce and lodge a reduced record (excluding Zuma's representations and consequent memoranda) consisting of all documents and materials relevant to the review within 14 days; (4) The first and third respondents must pay the DA's costs jointly and severally, including costs of two counsel.

The binding legal principles established are: (1) A decision by the National Director of Public Prosecutions to discontinue a criminal prosecution constitutes an exercise of public power that is subject to judicial review on the basis of compliance with the rule of law and constitutional principles, notwithstanding its exclusion from the definition of 'administrative action' in PAJA; (2) A registered political party participating in Parliament has locus standi to bring a review application in the public interest and in its own interest to challenge decisions by constitutional institutions like the NPA, given the party's obligation to uphold constitutional values and the rule of law; (3) Courts have the power, whether under Uniform Rule 53 or their inherent jurisdiction under section 173 of the Constitution, to compel production of the record of a reviewable decision (excluding legitimately confidential material) to enable meaningful constitutional review; (4) All exercises of public power, whether classified as administrative action or not, must comply with the Constitution, including the principle of legality derived from the rule of law under section 1(c) of the Constitution; (5) Standing under section 38 of the Constitution should be interpreted broadly to enable enforcement of constitutional rights, particularly where institutions integral to democracy are involved.

The Court made several important non-binding observations: (1) The extent or scope of judicial review of prosecutorial decisions was not determined, as this was a matter for the High Court hearing the actual review application; (2) The value of a 'reduced record' (without the accused's representations) would depend on the circumstances of each case and would be assessed by the reviewing court; (3) Courts should be slow to allow piecemeal litigation and should prefer procedures that avoid prolonged litigation without adjudication of merits; (4) 'Floodgates' arguments against liberal standing are generally not persuasive, especially in constitutional matters - courts can control frivolous litigation through costs orders, and if cases are well-founded there is no objection to multiple parties seeking justice; (5) The costs principles in Biowatch Trust (regarding public interest litigants) do not apply to parties who opportunistically intervene without a genuine constitutional interest; (6) The rule of law is 'a concept that we, as a nation, must cherish, nurture and protect' and 'our best guarantee against tyranny'; (7) Political parties representing constituents effectively represent the public in Parliament and have a legitimate role in ensuring governmental compliance with constitutional prescripts.

This is a landmark case on constitutional review of prosecutorial decisions and public interest standing in South Africa. It affirms that: (1) Decisions to discontinue prosecutions by the NDPP are subject to judicial review based on constitutional principles, particularly the rule of law under section 1(c), even if excluded from PAJA's definition of 'administrative action'; (2) Political parties have standing to challenge governmental decisions in the public interest, especially regarding institutions integral to the rule of law like the NPA; (3) The courts have inherent power and constitutional duty to review all exercises of public power for compliance with the Constitution; (4) Records of reviewable decisions are compellable to enable meaningful judicial review, subject to legitimate confidentiality claims; (5) The Constitution has fundamentally changed the landscape of judicial review from the apartheid era, embedding broader standing rules and mandatory constitutional compliance. The case reinforces accountability and the principle that no one, including the President, is above the law.