Democratic Alliance v The Acting National Director of Public Prosecutions and Others

In April 2009 the Acting National Director of Public Prosecutions (NDPP) decided to discontinue corruption charges against Jacob Zuma. The Democratic Alliance (DA), a registered political party and the official opposition, brought a review application in the North Gauteng High Court seeking to have the decision set aside as unconstitutional and unlawful. The DA also sought production of the record of decision under Rule 53. The NDPP and Zuma opposed the application, contending that the DA lacked locus standi, that the decision was not reviewable, and that the record could not be disclosed because it included confidential representations made by Zuma. Two further applicants, Richard Young and CCII Systems (Pty) Ltd, sought leave to intervene on the basis of their involvement in the arms procurement process. The High Court dismissed the DA’s standing, refused to compel production of the record, and rejected the intervention application. The DA, Young, and CCII appealed to the Supreme Court of Appeal.

The appeal by the Democratic Alliance was upheld with costs. The DA was found to have standing, the decision to discontinue the prosecution was held to be reviewable, and the NDPP was ordered to produce a reduced record of the decision within 14 days. The appeals by Richard Young and CCII Systems (Pty) Ltd were dismissed with costs. The High Court’s refusal of their intervention application remained in force.

This case is a leading authority on the constitutional reviewability of prosecutorial decisions in South Africa. It affirms that decisions by the NDPP, including decisions to discontinue prosecutions, are subject to legality review under the rule of law, even though they fall outside PAJA. The judgment also significantly broadens standing in matters implicating the rule of law, confirming that political parties may litigate in the public interest to ensure constitutional accountability of prosecutorial power.