Zuma, Mbeki and NPA head for Bloem showdown

The National Prosecuting Authority’s appeal against the decision of Judge Chris Nicholson, in favour of ANC president Jacob Zuma, in the Pietermaritzburg High Court will be heard by a full bench of the Supreme Court of Appeal in Bloemfontein on Friday. Nicholson’s judgment amounted to the granting of an application brought by Zuma on the basis that the NPA had not followed the procedures for charging an accused, in his circumstances, and which thereby invalidated the charges.

In this regard the NPA were, as things stand, obliged to have afforded the ANC president the opportunity of making representations to them before proceeding to charge him. This position would change dramatically should the NPA’s appeal be upheld.

The central issue ie Section 179(5)(d) of the Constitution was set out by the judge as follows:

“45. Section 179(5)(d) of the Constitution of the Republic of South Africa, Act no 108 of 1996 provides as follows: ‘[The National Director Public Prosecutions] may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director Public Prosecutions, from the following:
(i) The accused person.
(ii) The complainant.
(iii) Any other person or party whom the National Director considers to be relevant.’

46. The NDPP contends that these provisions do not apply to the decision to prosecute the appellant in this matter. It is common cause that the applicant was not afforded an opportunity to make representations.

47. The obligation to hear representations forms part of the audi alteram partem principle. What is required is that a person who may be adversely affected by a decision be given an opportunity to make representations with a view to procuring a favourable result. The affected person should usually be informed of the gist or the substance of the case, which he is to answer. The affected person has no general right to receive every piece of information relevant to the decision. See Chairman, Board on Tariffs and Trade v Brenco Inc and Others 2001(4) SA 511 (SCA) paras 13, 14, 29, 30 and 42. Radio Pretoria v Chairman, Independent Communications Authority of South Africa 2003(5) SA 451 (T) para 24.6.

48. In order to give effect to the right to procedurally fair administrative action, the respondent had to give the applicant adequate notice of the nature and purpose of the proposed administrative action. The proposed administrative action was the exercise of the discretion to change his decision not to prosecute to one prosecuting the applicant.

49. The duty to give a reasonable opportunity to make representations had to be in the context of the reasons not to prosecute the applicant which had changed thereafter.” (News 24)

The judge held that the section was applicable in this case and accordingly that there was a duty to afford Zuma the right to make representations before charging him.

These are now the permutations:

Should the appeal fail then this would be the end of this route, but not the matter, for the NPA. They would still be able to go back to the start and cure the defect in their procedures by furnishing the details and nature of the charges they propose bringing to Zuma and affording him the opportunity to make representations to them. Once they have his submissions they could then, if they are not satisfied with them, charge him.

NB: The law of the country says that where the NPA has a prima facie case before it they are OBLIGED to proceed with it. In other words the state is compelled to act and if there is no political or legal compromise reached it is their duty to take the matter to trial or it’s natural legal conclusion. It is not a personal thing but rather a requirement of the laws of your country. If you have any gripe it is not with these people nor any other members of the criminal justice system or judiciary who are independent of the politicians.

As you may be aware the court has also afforded former president Thabo Mbeki 45 minutes to put forward his submissions on the political issues raised by Nicholson in his judgment; primarily those dealing with a conspiracy against Zuma. Mbeki is aiming to show that the decisions made by the NPA were done independently and that the conduct of his cabinet and him was beyond reproach. Zuma, as set out in his papers, contends otherwise.

Should the appeal be upheld then the charges would no longer be invalid and the process would continue where it left off before the Nicholson decision. This means that the NPA will be calling upon Zuma’s legal team to finalise a trial date for some time next year.

NB: Once again it is important for you to understand that Nicholson’s judgment had nothing to do with the merits of the case. He ruled simply on the legal technicality before him. The prima facie case that was there before his decision remains there and the NPA are obliged to deal with it.

Finally the Zuma legal team may decide to try and bring other applications or even approach the Constitutional Court on this matter. These are not on the table as yet. As things stand, if the NPA gets the decision on Friday they will seek a trial date; if they lose they will, in all likelihood, start the process from scratch.

Hope that assists you.