National Director of Public Prosecutions v Zuma

Jacob Zuma, former Deputy President of South Africa, was the subject of multiple prosecutorial decisions. In August 2003, NDPP Ngcuka announced he would prosecute Schabir Shaik for corruption but not prosecute Zuma, stating there was a prima facie case against Zuma but prospects of success were not strong enough. After Shaik's conviction in June 2005, President Mbeki dismissed Zuma as Deputy President. NDPP Pikoli then decided to indict Zuma on June 20, 2005. The matter came before Msimang J in 2006 who struck the case from the roll when the prosecution was not ready to proceed. On December 27, 2007, acting NDPP Mpshe decided to indict Zuma again with an expanded 87-page indictment containing 18 main counts including racketeering, corruption, money laundering, tax evasion and fraud. Zuma applied to set aside the indictment, arguing he should have been invited to make representations before the decisions to prosecute, relying on s 179(5)(d) of the Constitution and legitimate expectation. Nicholson J set aside the Mpshe decision. The NDPP appealed.

• Whether s 179(5)(d) of the Constitution requires the NDPP to consult with an accused person before reviewing the NDPP's own prior decision not to prosecute
• Whether Zuma had a legitimate expectation to be invited to make representations before the decision to prosecute was made
• Whether findings on political meddling and motivation for prosecution were appropriate in motion proceedings on procedural grounds
• The proper approach to resolving disputes of fact in motion proceedings
• The limits of the judicial function and when courts may make findings against persons not party to proceedings
• Whether a decision to prosecute is reviewable as administrative action under PAJA

The appeal was upheld with costs including costs of three counsel. Paragraphs 1-4 of the High Court order were set aside and replaced with an order dismissing Zuma's application with costs, ordering Zuma to pay costs on the attorney and client scale for the respondent's striking out application, and dismissing Zuma's striking out application with costs on attorney and client scale. The application by Mbeki and the Government to intervene was dismissed.

Section 179(5)(d) of the Constitution applies only when the NDPP reviews a decision made by a Director of Public Prosecutions or subordinate prosecutor, not when the NDPP reconsiders his or her own prior decision. The provision is an 'apex function' dealing with the NDPP's control over DPPs. The power to make and reconsider prosecutorial decisions flows from s 179(2) of the Constitution, not from s 179(5)(d). A legitimate expectation can only be based on a practice or clear and unambiguous representation by the administrator, not on self-created expectations based on the applicant's own perceptions. Decisions to prosecute are not administrative action reviewable under PAJA. In motion proceedings, courts must apply the Plascon-Evans rule and cannot decide cases on probabilities without rejecting the respondent's version as implausible or untenable. Courts must confine themselves to deciding the issues properly before them and may not make findings on matters not in issue or against persons not called upon to defend themselves.

The Court made extensive obiter comments criticizing the High Court's approach: (1) Courts should not express personal political views in judgments or make findings on purely political questions such as the propriety of the President's dismissal of the Deputy President. (2) The independence of the judiciary depends on respecting the limits of judicial power. (3) Even if a prosecution is brought for an improper purpose, it is not wrongful unless reasonable and probable grounds for prosecuting are absent. The motive behind a prosecution is generally irrelevant. (4) The fact that one party to an alleged corrupt relationship is found guilty does not mean the other party is also guilty, as intention must be decided separately for each party. (5) The Constitutional framework recognizes both prosecutorial independence and ministerial responsibility over the NPA, which are not incompatible. The Minister may not instruct the NPA to prosecute or not prosecute, but is entitled to be kept informed of prosecutions of public interest. (6) Courts should not impose an onus on a respondent to prove a negative in motion proceedings. (7) The more serious an allegation or its consequences, the stronger must be the evidence before a court will find it established. (8) A party cannot base a case on irrelevant allegations about political conspiracy when the legal issue is simply whether a procedural requirement was met.

This judgment is significant for clarifying the interpretation of s 179(5)(d) of the Constitution regarding the NDPP's review powers and the procedural requirements for prosecution decisions. It establishes that the consultation and representation requirements apply only to the NDPP's review of decisions by subordinate DPPs, not to reconsideration of the NDPP's own decisions. The judgment reinforces that decisions to prosecute are not subject to administrative law review under PAJA. It provides important guidance on the limits of judicial power, emphasizing that courts must confine themselves to the issues properly before them and not make findings on political matters or against persons not party to proceedings. The judgment reaffirms principles for deciding factual disputes in motion proceedings (the Plascon-Evans rule) and emphasizes that motion proceedings cannot be used to resolve probabilities. It also addresses the doctrine of legitimate expectation in the prosecutorial context. The case had major political ramifications, occurring during a period of significant political transition in South Africa, though the Court emphasized it was deciding legal issues, not political ones.