Zuma v Democratic Alliance; ANDPP v Democratic Alliance

In 2007, criminal charges including racketeering, corruption, money laundering and fraud were instituted against Jacob Zuma (at the time, not yet President). On 1 April 2009, the Acting National Director of Public Prosecutions (ANDPP), Mr Mokotedi Mpshe, decided to discontinue the prosecution. Mr Mpshe's decision was purportedly made in terms of s 179(5)(d) of the Constitution, which allows an NDPP to review decisions by Directors of Public Prosecutions. The decision was based primarily on allegations that Mr Leonard McCarthy, Head of the Directorate of Special Operations, had manipulated the timing of the service of the indictment for political purposes related to the ANC's Polokwane conference in December 2007. Mr Mpshe relied on intercepted telephone recordings between McCarthy and other political figures, including former NDPP Bulelani Ngcuka and Minister Ronnie Kasrils. These recordings allegedly showed a political conspiracy. The Democratic Alliance (DA) challenged the decision to discontinue the prosecution. The Gauteng High Court found the decision to be irrational and set it aside. Both Mr Zuma and the ANDPP applied for leave to appeal to the Supreme Court of Appeal.

• Whether the decision by the Acting National Director of Public Prosecutions (ANDPP) to discontinue the prosecution of Mr Zuma was rational
• Whether the ANDPP could rely on s 179(5)(d) of the Constitution to review his own earlier decision to prosecute
• Whether allegations of abuse of process by a prosecutor justify discontinuation of a prosecution outside of a judicial determination
• Whether the separation of powers was infringed by the High Court directing that Mr Zuma should face charges
• The scope of rationality review in administrative law
• The proper approach to allegations of prosecutorial impropriety and ulterior motive

The applications for leave to appeal were granted. The appeals were dismissed with costs, including costs of three counsel. The National Prosecuting Authority and Mr Zuma were ordered to pay costs jointly and severally, the one paying the other to be absolved. The effect was to confirm the High Court's order setting aside the decision to discontinue the prosecution, thereby reviving the prosecution of Mr Zuma on the charges in the 2007 indictment.

The binding legal principles established are: (1) Section 179(5)(d) of the Constitution empowers the National Director of Public Prosecutions to review decisions to prosecute or not prosecute made by Directors of Public Prosecutions, but does not permit an NDPP to review his or her own decision. (2) Where a decision-maker deliberately invokes an inapposite constitutional or statutory provision as the basis for a decision, the decision cannot be saved by the existence of alternative powers under different provisions - the principle in Harris applies. (3) Rationality review of prosecutorial decisions requires both rational process and rational outcome - there must be a rational connection between the means employed (discontinuing a prosecution) and the stated purpose (preserving integrity of the NPA). (4) A prosecution is not wrongful merely because it may have been brought for an improper purpose or with a bad motive - it is only wrongful if, in addition, reasonable and probable grounds for prosecution are absent. The motive is irrelevant where the merits are sound. (5) Allegations of abuse of prosecutorial process should be determined by trial courts through applications for stays of prosecution, not resolved extra-judicially by prosecutors discontinuing prosecutions. (6) Rationality review requires consideration of all relevant material - failure to consider material facts undermines rationality. (7) The deliberate exclusion of those with relevant expertise and knowledge (such as the prosecution team) from decision-making processes can constitute irrationality.

The Court made several important obiter observations: (1) It expressed concern about different law enforcement agencies apparently spying on each other, and about how Mr Zuma's legal representatives obtained classified intercepted communications from the National Intelligence Agency - the legality of this possession was questioned and the Court suggested it warrants investigation. (2) The Court noted with disapproval the poor quality of Mr Hofmeyr's affidavit, which was based on conjecture, supposition, rumour and phrases like "as far as I am concerned" and "I believe" rather than admissible facts. The Court stated this approach was "wholly unsatisfactory" for an experienced litigator. (3) The Court criticized the NPA's litigation conduct, noting that current NPA counsel distanced themselves from the affidavits filed on behalf of the NPA. (4) The Court commented that it was "difficult to understand why the present regime at the NPA considered that the decision to terminate the prosecution could be defended." (5) The judgment noted Mr Zuma's counsel's indication that Mr Zuma would continue to use all available processes to resist prosecution - but stated "these are issues we are not required to address." (6) The Court expressed concern about the contradictory versions provided by the NPA about who made various decisions, and about Mr Mpshe's admission that he had lied to senior prosecutor Downer. (7) The Court observed that T.S. Eliot's words about "the recurrent end of the unending" aptly described the ongoing litigation saga, doubting whether even this decision would end the contestations. (8) The Court noted that minutes into argument, both the NPA and Mr Zuma conceded the decision was flawed, raising questions about why they had defended it until that point.

This case is a landmark judgment on prosecutorial independence, the limits of prosecutorial discretion, and the application of rationality review to decisions by the National Prosecuting Authority. It establishes that: (1) An NDPP cannot use s 179(5)(d) to review his or her own decision to prosecute - that provision is limited to reviewing decisions of Directors of Public Prosecutions; (2) Decisions to discontinue prosecutions must be rational - there must be a rational connection between the means employed and the stated purpose; (3) Allegations of prosecutorial abuse of process should be determined by trial courts, not resolved by prosecutors discontinuing prosecutions extra-judicially; (4) An improper motive for prosecution (or for timing of an indictment) does not invalidate a prosecution where there are good merits and reasonable grounds to prosecute; (5) When an administrative decision is based on invocation of an inapposite legal provision, it cannot be saved by arguing that power existed under a different provision - the decision-maker must consciously exercise the correct power. The judgment is also significant for its strong criticism of the manner in which the NPA conducted the litigation, particularly the affidavit by Mr Hofmeyr based on conjecture and supposition. The case demonstrates the courts' willingness to scrutinize prosecutorial decisions while respecting the independence of the NPA, and clarifies that such independence does not immunize irrational decisions from review. The judgment has ongoing political and legal significance as it revived the corruption prosecution against a sitting President (though Mr Zuma has indicated intention to resist prosecution through available legal processes).