In April 2009, shortly before the general elections, the then acting director of the NPA, Mokotedi Mpshe, and his deputy, Willie Hofmeyr, decided to enter a nolle prosequi in the pending criminal prosecution of Jacob Zuma, the president of the ANC. The DA then brought a lawsuit to review the legality of the dropping of charges against Zuma. The North Gauteng High Court recently passed judgment in the matter. Some aspects of the judgment deserve closer scrutiny.
To recapitulate the facts briefly: In January 2009, the Supreme Court of Appeal made the way free for the corruption trial against Zuma to be pursued in the KwaZulu-Natal High Court with the judgment in National Director of Public Prosecutions v Zuma 2009 2 SA 277 (SCA).
In that case, Zuma’s legal counsel argued that section 33 of the Bill of Rights should apply to a review of the 2003 decision of Bulelani Ngcuka, who headed the NPA at the time, not to prosecute him. Consequently, they argued, the decision by Vusi Pikoli to review the nolle prosequi in terms of section 179(5)(d) of the Constitution was subject to administrative justice under article 33 of the Bill of Rights. Pikoli should thus first have consulted with Zuma before reopening the case because the latter had a legitimate expectation to rely on the previous decision by Ngcuka not to prosecute him. The court rejected the claim and ruled that the doctrine of legitimate expectation is applicable to matters regulated by administrative law and cannot be invoked with regard to discretionary powers relating to prosecutions, because the latter is regulated by criminal law.
The Supreme Court of Appeal also found that the trial court failed to comply with basic rules of procedure when Nicholson J presumed that there was political meddling in the prosecution even though this was not proved. The court further held that the motive behind a prosecution is irrelevant insofar as a crime had been committed that ought to be prosecuted. The court concluded that it was difficult to see, in the light of the Shaik judgment, how the prosecution could have failed to prosecute Zuma in the first place. Corruption is a reciprocal crime, which always involves at least two parties.
The court further ruled that the judgment of Nicholson J was erroneous insofar as it confused the standards for a prima facie case that merits prosecution with the prima facie standard, which is required to discharge the onus of proof during a criminal trial. The court reiterated that prima facie evidence does not need to be conclusive or irrefutable at the stage when criminal proceedings are instituted. It must only have enough merit once the criminal investigations are concluded “in the sense of reasonable prospects of success”. Whether the prosecutors are able to discharge the onus of proof in court depends on the evidence presented under cross-examination. Only if they can establish a prima facie case during the trial, which is strong enough to discharge the burden of proof, will the accused be required to rebut it by raising a reasonable doubt.
Although Zuma applied for leave to appeal to the Constitutional Court to set aside the decision of the Supreme Court of Appeal on the merits of its interpretation of section 179(5) of the Constitution, the hearing was only scheduled for May 12 2009. Time was therefore running out for the ANC to decide whether Zuma should be the party’s presidential candidate in the elections of April 22. The Damocles sword of his corruption trial, which was scheduled for August 16 2009 in the KwaZulu-Natal High Court, was thus still hanging over his head.
A special ANC committee engaged in negotiations with Hofmeyr to find a political solution to save Zuma from his legal woes. An unidentified spy then secretly passed on recordings of telephone conversations between Ngcuka and Scorpion’s head Leonard McCarthy, which were bugged during 2007, to Zuma’s legal counsel. The contents of the conversations centred on the timing of Zuma’s trial. Mpshe and Hofmeyr then construed the (illegally?) bugged conversations as an abuse of power to justify the dropping of charges against Zuma. However, in terms of section 32 read with section 41 of the National Prosecuting Authority Act of 1998, the meddling in criminal proceedings is an offense in its own right, which should have been prosecuted separately.
Despite strong opposition by the prosecutors in the case, Mpshe instructed them to withdraw the corruption case against Zuma in the KwaZulu-Natal High Court. The charge sheet of Zuma disclosed that between 25 October 25 1995 and July 1 2005 he or his family received 783 payments totalling R4 072 500 from Shaik or his companies. This was the basis upon which the Supreme Court of Appeal relied for its conclusion that Zuma ought to have been prosecuted together with Shaik.
In effect Mpshe and Hofmeyr overruled a binding decision of the Supreme Court of Appeal in contravention of section 165(5) of the Constitution. It is not clear why the presiding judge in the KwaZulu-Natal court did not query the legality of the prosecuting authority’s power to enter a nolle prosequi in a prima facie case. What is even more conspicuous is that the prosecuting authority and the court in which the charges were withdrawn made no attempt to ascertain the legality of spying on the prosecuting authority.
At the centre of the current dispute to review the nolle prosequi is the demarcation of the powers of the prosecuting authority vis-a-vis the judiciary, and the location of prosecutors in the constitutional system’s separation of powers. The role of judges and prosecutors in a constitutional state is different than in Westminster systems. Although South Africa switched to the constitutional state model in 1994, the Westminster criminal justice model has been perpetuated.
The Westminster criminal justice system does not make a clear distinction between criminal justice and executive state administration. Historically prosecutors formed part of the executive branch in Great Britain and most countries of the Commonwealth because criminal prosecutions were originally conducted by the police. Meanwhile legally trained prosecutors take criminal matters to court. Criminal investigations and the decision whether or not to prosecute, however, are still in the hands of the police and in some of the countries, including the UK, the police may still prosecute in minor cases.
In order to curtail undue executive influence on criminal prosecutions, most countries which follow Westminster criminal justice model depart from varying degrees of “functional independence” for prosecutors. The problem is, however, that they are still part of the executive and thus the relationship between the minister of justice and the director of public prosecutions is one of internal hierarchic executive control. This blurs the boundaries between state organs that are responsible for invoking criminal law and administrative law respectively.
The prosecution model which evolved in Continental Europe during and in the aftermath of the Napoleonic conquests is completely different. Here the office of the state prosecutors was split off from the judiciary. As these states slowly developed into modern constitutional states, the prosecutors evolved as the de facto second organ of the third branch of state power. Apart from France, which still follows the inquisitory approach, most of the other states have a well-balanced mixture of inquisitory and accusatory elements in criminal justice.
All these countries have a bill of rights, which guarantees fair trails and access to the courts, just like it guarantees fair and just administrative action. These rights are fundamental rights accruing to individuals and legal persons, which clearly delineate the scope of power of state organs in this regard. Fundamental rights are not anti-state but offer a framework on how state organs should exercise their powers.
This is also the way the bill of rights functions in South Africa. It makes a clear distinction between powers relating to administrative justice (section 33) and those relating to criminal justice (sections 34 and 35). Administrative justice regulates the exercise of power by an organ of the executive power when it takes administrative action with a direct external effect vis-a-vis an individual or legal person. The administrative-law relationship is usually of a vertical nature with a state organ wielding power and being able to enforce that in terms of administrative law eg taxation, zoning law etc.
Fundamental rights relating to criminal justice regulate the manner in which the prosecutors and judiciary should exercise the powers conferred upon them in terms of criminal law. The criminal-law relationship is a public-law relationship just like the administrative-law relationship but concerns a different branch of state power. Unlike the vertical administrative-law relationship, it is of a triangular nature with the presiding judge holding the scales of justice while the prosecution faces an accused to prosecute an alleged crime in the public interest.
The Bill of Rights binds all state power (section 8 of the 1996 Constitution) and the Constitution reigns as the supreme law (section 2). It lays the foundation for a clear distinction between the state organs that are responsible for invoking powers in terms of criminal law and administrative law respectively. Chapter 8 grouped the judiciary and the prosecutors together as the organs responsible for the administration of justice. The prosecutors have not been classified as part of the executive, whose powers are regulated under Chapter 5.
In terms of the Constitution, both the judiciary and the prosecutors are bound only to the Constitution and the law. They are obliged to exercise their powers impartially and “without fear, favour or prejudice” (sections 165(2) and 179(4) of the Constitution). This implies not only fair trials, but pre-trial equal treatment as well. It precludes selective prosecutions or the dropping of charges in prima facie cases. The system therefore differs in two important respects from Westminster criminal justice: first, it is not a purely accusatory system where judges are bound by a charge sheet and expected to stand on the sideline like an uninvolved referee and second, prosecutors do not have an unabridged discretion to block prosecutions in prima facie cases.
It was clearly the intention to break with the Westminster model but in practice the transition to a different criminal justice model still causes confusion. The scope of powers of the judiciary and the prosecutors are clearly delineated in the Constitution and the prosecutors may therefore not encroach upon the domain of the judiciary by entering a nolle prosequi in a prima facie case. This would amount to a non-judicial acquittal, which constitutes a forbidden form of exercise of power: section 41(1)(f) of the Constitution explicitly states that no state organ may assume any power except those conferred upon them. In other words, the scope of the discretionary power to prosecute is limited to those instances where there is doubt whether there are not reasonable prospects of success. It is not up to the prosecutors, though, to decide whether the amount of evidence would suffice for a criminal conviction during a trial. That is the domain of the judiciary and in terms of section 41(g) prosecutors may not encroach upon the scope of judicial powers.
Should the NPA nevertheless decide to enter a nolle prosequi in a prima facie case, any party affected by the decision would be able to rely upon section 34 of the Bill of Rights to secure access to the courts. Section 34 is an important mechanism to prevent prosecutors from blocking access to the courts by victims of crime or persons affected by it in that they enter a nolle prosequi in instances that would have merited a prosecution.
The German bill of rights contains a similar provision. The details to enforce this fundamental right have been regulated in the German Criminal Procedure Act. Section 172 of the Act provides different remedies to victims or persons affected by criminal offences to insist on criminal prosecutions. If the prosecutors nevertheless refuse to institute criminal proceedings, the matter can be taken to court to get a court order that forces prosecutors to institute criminal proceedings. Even without any enabling legislation to this effect, affected persons would still be able to rely on section 34 of the South African Bill of Rights in a similar fashion.
In the current matter before the Gauteng High Court, the DA required that Mpshe and Hofmeyr should make the records of the proceedings, which lead to the (second) nolle prosequi for Zuma, available to them. They argued that they were entitled to it on the basis of just administrative action in terms of article 33 of the Bill of Rights. The DA further argued that the dropping of charges in Zuma’s case infringes upon the equal treatment clause (section 9) and the rule of law as one of the cornerstones of the constitutional state (section 1(c)).
The NPA countered — correctly — that discretionary power to prosecute is not based on administrative but criminal law and that section 33 of the Bill of Rights is therefore not applicable. Despite certain conceptual weaknesses of the Promotion of Administrative Justice Act (PAJA), the Act is clear insofar as it states that the power to prosecute does not qualify as administrative action (section 1(1)(ff) PAJA).
The presiding judge overlooked the definition of administrative action and referred to the NPA’s arguments only in passing. Instead, Ranchod J accepted the validity of the DA’s argument that judicial review of a decision to enter a nolle prosequi falls under the rubric of just administrative action (section 33). He then proceeded to apply section 6 of PAJA to determine the validity of the NPA’s decision to drop charges against Zuma. Criminal prosecutions, however, are not based on administrative law. One must instead examine whether the elements constituting a specific crime in terms of criminal law are present and consider whether the available evidence merits a trial. The presiding judge thus applied non-applicable law in coming to his decision.
Moreover, Mpshe and Hofmeyr de facto overruled a previous binding decision of the Supreme Court of Appeal and thus infringed upon the provisions of section 165(5) of the Constitution. In that ruling the court made clear that the motive for a prosecution is irrelevant insofar as there is a prima facie case. The parts of spy tapes that were made public by Mpshe and Hofmeyr did not affect the prima facie nature of the charges against Zuma. Whatever the motives of McCarthy with regard to the timing of instituting criminal proceedings in 2007 might have been, is therefore of less importance. The fact that Ngcuka obviously tried to take influence on that is another matter. Like the spying on prosecutors and using the tapes to effect a nolle prosequi, that could be prosecuted under section 32 of the National Prosecuting Authority Act.
What the court should have considered is, first, whether the NPA transgressed its constitutional powers by overruling a Supreme Court of Appeal judgment, and second, whether the NPA exceeded the scope of its powers under section 179(4) by entering a nolle prosequi in a prima facie case.
Another aspect which the court should have considered, is whether the decision to grant Zuma a nolle prosequi did not also infringe upon sections 9 and 34 of the Bill of Rights. The basis of the complaint is not a lack of just administrative action (section 33) but blocking access to the courts in contravention of section 34. Selective criminal prosecutions undermine pre-trial equal treatment in criminal justice and thus contravene section 9 of the Bill of Rights. This was not addressed by the court either.
Finally, Ranchod J ruled that the DA does not have locus standi to bring such a suit because it was not directly affected by the nolle prosequi. The presiding judge, however, did not substantiate why the official opposition in parliament should not qualify to act in the public interest when members of the executive are suspected of political corruption and their prosecution is blocked. Members of parliament are empowered by section 55(2)(b) of the Constitution to “maintain oversight of … the national executive”. At the time of the alleged criminal offences of Zuma he was the deputy president of the country. If the NPA therefore drops charges against the impending president only a few days before general elections after they were extensively lobbied and put under pressure with spy tapes, one may very well argue that the requirement of locus standi has been met if the DA, as official opposition, tries to ensure executive accountability. It is also in the public interest to secure pre-trial equal treatment when the prosecuting authority creates the impression that it prosecutes selectively and grants nolle prosequis for reasons of political expediency. Despite the ruling of the court, the DA ought to have qualified for locus standi under section 38 of the Constitution, because it fulfilled more than one of the conditions.
To conclude, the DA will not be able to appeal the matter based on section 33 of the Bill of Rights, since the discretion to prosecute is not an executive administrative power. It resorts under criminal justice. However, since President Zuma — like his predecessor in the Selebi affair — espouses the view that the executive is the NPA’s boss, this is a classic instance of a dispute between organs of state concerning the constitutional status, and powers or functions of the state organs concerned. That falls in the exclusive jurisdiction of the Constitutional Court in terms of section 167(4) of the Constitution. The DA would therefore, in its capacity as the official opposition in parliament who has a direct interest in the proper functioning of the executive, have locus standi to bring such a law suit, provided it argues the case on the basis that the NPA exercised its powers in a manner that usurped judicial power, and that the nolle prosequi in Zuma’s case transgressed the norm of pre-trial equal treatment and blocking access to the courts in a manner which is not in the interest of a fair criminal justice system.
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