19. At the outset I must emphasise that these proceedings have nothing to do with the guilt or otherwise of the applicant on the charges brought against him. They deal with the disputed question of a procedural step that the State was required to comply with prior to instituting proceedings against the applicant. If there are defects, at best for the applicant, the present indictment may be set aside. Once the defects are cured, subject of course to any other applications that are brought, the State is at liberty to proceed with any charges they deem meet. The application of the amicus curiae

20. The Society for the Protection of our Constitution applied to join these proceedings as an amicus curiae. It is necessary to deal with its application on the basis that its participation, evidence and submissions may have an impact on how the application should be approached. The Society gave notice in its application that it would seek an order, in terms of s 168 of the CPA, that the criminal prosecution against the applicant be stayed until he completed his anticipated term of office as President of the Republic of South Africa, alternatively that it be quashed in its entirety.

21. I am not aware of any case in our law, whether civil or criminal, in which an amicus curiae applied for relief in its own name. The observation must also be made that the relief that the Society seeks is drastic and considerably more far-reaching than that sought by the applicant himself. The request by the amicus for a commission of enquiry into the violation of the applicant's constitutional rights.

22. The amicus in his heads of argument asks for an order in the following terms:

23. The amicus is effectively asking for the appointment of a commission of enquiry into the violation of the applicant's constitutional rights. The courts have laid down when such commissions should be appointed.

24. In these papers frequent mention is made of the alleged irregularities in the arms deal. The applicant says in his founding affidavit at paragraph 26 that 'questions relating to alleged irregularities in the arms deal were raised from September 1999. These were raised in the press and parliament.'

25. There are also widespread calls for a commission to be appointed to investigate the Arms Deal. This court has no power to appoint any commission of enquiry. The President is responsible for appointing commissions of inquiry in terms of Section 84 (2) (f) of the Constitution. In terms of Section 1 (1) (a) of the Commissions Act No. 8 of 1947, if the President has established a commission of inquiry he may make the provisions of the Act applicable provided the investigation objectively relates to a matter of 'public concern'.

26. It was held in President of RSA and others v SARFU and others 2000 (1) SA 1 (CC) that the term 'public concern' must be a concern of members of the public which is widely shared (paragraph 175).

27. In Bell v Van Rensburg NO 1971 (3) SA 694 C the court referred at page 710 et seq to the Salmon Report in England with approval which held that the inquisitorial methods of commissions should never be used for a matter of purely local or minor public interest but should always be restricted to matters of material public interest with regard to which there exists a nation wide crisis of confidence. In such cases the court concluded that no other method of investigation would be adequate.

28. The court in the Bell case also approved statements to the effect that commissions should be appointed to maintain the unsullied integrity of our public life, without which a successful democracy is not possible. It held that it is essential that on the infrequent occasions when crises in public confidence take place, the evil, if it exists, should be exposed so that it can be eradicated lock, stock and barrel. On the other hand if it does not exist the general public can be satisfied that there is no substance in the general rumours and suspicions that gave rise to such crises. The court concluded that the public places its confidence in such a commission to conduct the most assiduous investigation and to call evidence in order to expose the truth. It is only in this manner that public confidence can be restored.

29. Mr du Plooy the deponent to the answering affidavit of respondent has indicated that all his investigations were as a result of what Ms Patricia de Lille said in Parliament. He says 'The investigations had their origins in broad-ranging allegations of impropriety relating to the arms deal. Those allegations were made, inter alia, in September 1999 by an opposition member of Parliament Ms Patricia de Lille.'

30. It would be naïve to suggest that the allegations concerning corruption relating to the arms deal have ceased or diminished in intensity. They purport to involve very senior figures in government from the President downwards. The Constitutional Court - the highest judicial custodians of the fountain of all our power and authority - the constitution - has said the following of and concerning corruption and maladministration.

'[4] Corruption and maladministration are inconsistent with the rule of law and the fundamental values of our Constitution. They undermine the constitutional commitment to human dignity, the achievement of equality and the advancement of human rights and freedoms. They are the antithesis of the open, accountable, democratic government required by the Constitution. If allowed to go unchecked and unpunished they will pose a serious threat to our democratic State.'

Per Chaskalson P (as he then was, later Chief Justice) in South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA 883 (CC).

31. In S v Ebrahim 1991 (2) SA 553 (AD) the court cited with approval the American case of Olmstead v United States 277 US 438, where Justice Brandeis said the following: 'Decency, security and liberty alike demand that Government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the Government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

32. The applicant is accused of writing a letter dated 19 January 2001 to Gavin Woods MP the chairperson of the Parliamentary Standing Committee on Public Accounts with the intention of blocking the Heath Unit from investigating the Arms Deal. The applicant points out that the President's office drafted the letter. There is no denial filed by the President. The court can hardly be unaware of the other dark mutterings emanating from the applicant that if he goes down others will follow him. Like a blinded Samson he threatens to make sure the temple collapses with him. The impression created is that the applicant has knowledge he will disclose if he is faced with conviction and sentence.

33. Only a commission of enquiry can properly rid our land of this cancer that is devouring the body politic and the reputation for integrity built up so assiduously after the fall of Apartheid. If the allegations made by Ms de Lille and a group of courageous journalists are true then there is no better reason for a commission to probe this corruption.

34. If their allegations are not true then the political leaders of our society should not be permitted to be defamed and slandered in this shameless and despicable way. If they are innocent they should not be required to resort to the ordinary courts to defend their good names and reputations. The public purse should fund a commission of enquiry so that they can govern in peace and tranquility and not under an ever present cloud of suspicion and scandal.

35. There is unimpeachable authority for this. The amicus seeks an order for a commission to vindicate the reputation of the applicant. This has been done on at least one previous occasion by the president. On 19 September 2003, scarcely one month after Mr Ngcuka held his press conference to announce his intention to prosecute Mr Shaik and not the applicant, a commission of enquiry was instituted by the President under Gov Gaz No 25481 Regulation Gazette No 7771, to 'Inquire into, make findings, report on and make recommendations concerning the following: Whether at any stage prior to 1994, the National Director of Public Prosecutions, Mr BT Ngcuka, was -

36. That commission was appointed to investigate the scandalous allegations made of the NDPP at that time. It seems to me so much more important to appoint a commission to thoroughly investigate whether there is truth in the allegations of widespread corruption and, if there is not, to clear the name of President Mbeki and those others unjustly accused.

37. To return to the request of the Amicus for this court to appoint a commission of enquiry into the scandalous allegations made of the applicant. From the above it is abundantly clear that the court cannot perform such a function. To make such an order would be what is known in the law as a brutum fulmen - a useless thunderbolt. It is only the president who is empowered by the constitution to appoint commissions. That relief sought by the amicus must therefore be refused.

38. The other relief sought by the amicus, seeking orders staying or dismissing the charges against the applicant permanently or until his term of office as President of South Africa ceases, is similarly misconceived and must be dismissed.

39. There are other reasons why the application of the amicus cannot succeed. In Certain Amicus Curiae Applications, In re: Minister of Health and Others v Treatment Action Campaign and Others (CCT8/02)(5 July 2002) the Constitutional Court said the following:

'The role of an amicus is to draw the attention of the court to relevant matters of law and fact to which attention would not otherwise be drawn. In return for the privilege of participating in the proceedings without having to qualify as a party, an amicus has a special duty to the court. That duty is to provide cogent and helpful submissions that assist the court. The amicus must not repeat arguments already made but must raise new contentions; and generally these new contentions must be raised on the data already before the court. Ordinarily it is inappropriate for an amicus to try to introduce new contentions based on fresh evidence.'

40. The NDPP, on behalf of the State, objected to the admission of the Society as an amicus, while the applicant, through his counsel, while not expressly supporting the application, did not object thereto. In his affidavit in support of the amicus application, Mr William Mahlangu, the chairperson of the Society attacks the method of securing attendance at court of the applicant which is not a live issue in the application at all. The deponent also makes similar allegations of a political conspiracy against the applicant which add nothing to what the applicant has said himself. I accordingly find that the admission of the Society will not be of any assistance to this Court in its deliberations. The applications to strike out

41. The respondent has applied to strike out 15 items, some including multiple paragraphs, of the applicant's founding affidavit. The first item relates to the biographical material of the applicant and his part in the struggle for democratic rights in South Africa. The remaining paragraphs complained of can be broadly described as being offensive because they insinuate that there is political meddling in the prosecution process. This is a serious allegation and must be examined with the most anxious deliberation, as it strikes to the heart of our democracy. The independence of the NPA and the prohibition on executive interference will be examined in detail later in the judgment. The role of the courts to monitor and halt any such executive action was unequivocally asserted by the Constitutional Court in In Re Certification of the Constitution of the RSA 1996(4) SA 744 at para [146] where the Court held that '[section] 179(4) [of the Constitution] provides that the national legislation must ensure that the prosecuting authority exercises its functions, without fear, favour of prejudice. There is accordingly a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the Courts.' (Emphasis added.)

42. There is therefore an emphatic constitutional imperative to outlaw any executive action which seeks to interfere with the independence of the prosecuting authority. The applicant in turn applies to strike out seven paragraphs and one annexure in the respondent's answering affidavits. The material that causes offence relates to allegations of improper conduct by applicant and his legal representatives and the inclusion of other proceedings about such conduct and the award of costs in such other proceedings.

43. These are substantive applications and are accompanied by affidavits setting out the reasons for striking out the relevant paragraphs. Both applications include prayers for punitive costs on the attorney and client scale. At no stage did either party abandon these applications and the court is therefore compelled to deal with them. It is of course trite that in order to rule on what is irrelevant, or scandalous and vexatious the court has to look at the merits and what is relevant to the live issues therein. See Elher (Pty)Ltd v Silver 1947 (4) SA 173 (W) at 176-

43. These are substantive applications and are accompanied by affidavits setting out the reasons for striking out the relevant paragraphs. Both applications include prayers for punitive costs on the attorney and client scale. At no stage did either party abandon these applications and the court is therefore compelled to deal with them. It is of course trite that in order to rule on what is irrelevant, or scandalous and vexatious the court has to look at the merits and what is relevant to the live issues therein. See Elher (Pty) Ltd v Silver 1947 (4) SA 173 (W) at 176-7. I accordingly propose to look at the merits before determining the strike out applications. Was applicant entitled to make representations in terms of the relevant law?

44. The crisp issue for determination is whether the applicant was entitled to make representations to the NDPP before the decision was taken to prosecute him.

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.

50. In the case of Nisec (Pty) Ltd v Western Cape Provincial Tender Board and Others 1998 3 SA 228 (C) at 234-5 Davis J held that 'In summary, it appears that a right to a hearing does include the provision of such information which would render the hearing meaningful in that the aggrieved party is given an opportunity to know all the ramifications of the case against him and thereby is provided with the opportunity to meet such a case.'

51. The ramifications of the case against the applicant would surely include the basis upon which the respondent had since changed his thinking about the decision to prosecute. As Colman J said in Heatherdale Farms (Pty) Ltd and Others v Deputy Minister of Agriculture and Another 1980 (3) SA 476 (T) at 486D--F:

'It is clear on the authorities that a person who is entitled to the benefit of the audi alteram partem rule need not be afforded all the facilities which are allowed to a litigant in a judicial trial. He need not be given an oral hearing, or allowed representation by an attorney or counsel; he need not be given an opportunity to cross-examine; and he is not entitled to discovery of documents. But on the other hand (and for this no authority is needed) a mere pretence at giving the person concerned a hearing would clearly not be compliance with the rule. . . . What would follow . . . is, firstly, that the person concerned must be given a reasonable time in which to assemble the relevant information and to prepare and put forward his representation; secondly he must be put in possession of such information as will render his right to make representations a real, and not an illusory one.'

52. The right to make representations would only be real and not illusory if the applicant knew what criteria were applied in not prosecuting him and how those had changed. I will return to the competing contentions of the parties in this matter but it suffices to say that the applicant submits the two decisions were as a result of a political campaign against him and the respondent maintains it was as a result of new evidence that had been discovered.

53. The applicant claims that the decision to prosecute him constitutes a 'review' of an earlier decision not to prosecute, hence he is entitled to make representations to the NDPP in terms of section 179(5)(d) of the Constitution, and the virtually identically worded section 22(2)(c) of the National Prosecuting Authority Act 32 of 1998 ('the NPA Act').The applicant has to have regard to the provisions of the national legislation, even though he refers to the constitution. It has been held that where legislation is enacted to give effect to a constitutional right, a litigant may not bypass that legislation and rely directly on the Constitution without challenging that legislation as falling short of the constitutional standard. See South African National Defence Union v Minister of Defence and others 2007 (5) SA 400 (CC) at paragraph 51. The applicant does not challenge the constitutionality of the relevant provision in the NPA Act. Where the two are in virtually identical terms it does not seem to me to be a problem to refer to the wording in the constitution. The fact that such wording is contained in that document could hardly diminish its status. It must always be borne in mind that section 2 provides that the Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.

The nature of the proceedings

54. There was some debate as to the nature of these proceedings. Mr Kemp suggested that they were in the nature of or akin to section 106(1)(h) of the Criminal Procedure Act, no 51 of 1977, which is to the effect that when an accused pleads to a charge he may plead that the prosecutor has no title to prosecute. Sub-section (3) provides that an accused shall give reasonable notice to the prosecution of such a plea though such may be waived by the prosecutor or the Court may on good cause shown dispense with such notice or adjourn the trial to enable such notice to be given.

55. It is manifest that such a plea is available if the prosecutor has not been properly appointed and in that case the proceedings are a nullity. I have a number of difficulties with the submission that this application is akin to or even in terms of section 106. Firstly the section commences with the words 'When an accused pleads to a charge'. It is manifest that the applicant has not had the charges in the indictment put to him let alone pleaded to them. In addition I understand that it was the intention of the applicant to seek further particulars to the charge before it was put to him.

56. The second problem relates to the ambit of this particular plea. It has been held that the sub-section refers specifically to a plea addressing whether the prosecutor has title to prosecute. The plea therefore relates to the right or authority of the prosecutor to appear as a prosecutor in the case. See Ndluli v Wilken NO and others 1991(1) SA 297 (AD) at 306 C - D. I do not, therefore, believe that section 106 avails the applicant at this stage.

57. Are the proceedings therefore civil in nature? Mr Trengove argued that the Court is precluded from considering this application because it does not constitute administrative action in terms of the Promotion of Administrative Justice Act No 3 of 2000 (PAJA). Section 6(1) provides that any person may institute proceedings in a Court or tribunal for the judicial review of an administrative action. 'Administrative action' is defined in section 1(ff) to mean any decision taken by an organ of State which adversely affects the rights of any person and which has a direct, external legal effect, but does not include a decision to institute or continue a prosecution.

58. It is clear that a decision not to prosecute an accused is subject to review by the Court though not one to institute a prosecution. Put differently, the Court's jurisdiction to review a decision to prosecute is excluded. Although clearly not identical this exclusion has much in common with what are termed ouster clauses.

59. In Rex v Padsha 1923 AD 281 the Appellate Division had reason to consider a section of the Immigration Regulation Act 22 of 1913 which provided that any person or class of persons deemed by the Minister on economic grounds inter alia shall be a prohibited immigrant. Acting under these powers the Minister issued a notice in which he deemed every Asiatic person to be unsuited on economic grounds to come and live in this country. Surprisingly the majority of judges in that Court upheld the validity of the notice. The majority decision saw nothing wrong with stigmatising the whole population of Asia as unsuitable on economic grounds from entering South Africa. Broadly stated, every Asiatic, the majority held, would threaten the job security of the population of this country.

60. Even traders, teachers, lawyers and priests were not welcome. Clearly the South African experience of one particularly troublesome immigrant had immense influence on the Court's decision. The Court said and I quote 'Moreover, a person of that class, exercising influence over his fellow Asiatics may become a disturbing factor in the industrial processes of the country, as actually happened in the now historic case of Gandhi.'

61. Fortunately Innes CJ, in the minority, saw things differently. The relevant law conferred upon Immigration Boards' exclusive jurisdiction in deciding immigration matters and ousted the jurisdiction of the Courts. Chief Justice Innes then said 'It is competent for Parliament to oust the jurisdiction of Courts of law if it considers such a course advisable in the public interest. But where it takes away the right of an aggrieved person to apply to the only authority which can investigate and, where necessary, redress his grievance, it ought surely to do so in the clearest language. Courts of law should not be astute to construe doubtful words in a sense which will prevent them from doing what prima facie is their duty, namely, from investigating cases of alleged injustice or illegality.'

62. The Courts have followed the words of Innes CJ in a large number of decisions which have adroitly side-stepped ouster clauses in a plethora of statutes.

63. PAJA excludes the Court's right to review a decision to prosecute. Does this ouster provision preclude this Court investigating a defective procedure which preceded the making of the decision? Assuming the right of an accused to make representations, would this oust the right of the Courts to review a failure by the NDPP to afford such a right? It should be borne in mind that a review is essentially a court procedure aimed at inadequacies in the process and not the merits of the decision.

64. The decision taken to prosecute the applicant would be one in terms of section 179(5)(d) of the Constitution which is one taken, after consulting with DPPs and taking representations from the accused inter alia. On this hypothesis the decision by Mr Pikoli and his successor Mr Mpshe was not such a decision taken after consulting such persons and it falls outside the provision precluding the Court's review powers. Put differently, the jurisdictional facts that should have preceded the making of the decision, were consultations with the DPPs and the right of the accused inter alia to make representations. Once these jurisdictional facts were absent the decision ceased to be one in terms of section 179(5)(d) and became justiciable under PAJA.

65. There is ample authority for this proposition, including Minister of Law and Order v Hurley and another 1986(3) 568 AD at 584 et seq. In that case the Court referred with approval to Rex v Padsha (supra). Hurley's case involved an ouster clause relating to arrest and detention of persons in terms of section 29(1) of the Internal Security Act 74 of 1982, which could only take place if a policeman with the rank of lieutenant-colonel or higher had reason to believe the person had committed certain offences. The Court held that the ouster clause did not avail the police if a policeman, for example, of a lower rank performed the arrest. It did not avail the policeman also if he did not have reason to believe in the sense of informing the Court of the reasons. (See page 584 F - I).

66. In casu, therefore, if a decision needed the accused to make representations such was not a decision in terms of section 179(5)(d) if no representations were entertained. I believe the Court's jurisdiction remains unimpaired. It is not therefore necessary to consider the fascinating arguments as to whether PAJA constitutes an exclusive codification of the rights of review. I am of the judgment that this application is in the nature of a civil review and I have therefore excluded my assessors from such decision.

The proper approach to interpretation

67. The courts have held that the proper approach to the interpretation of a statute is to seek the intention of the legislature. The rules of interpretation are set out in S v Toms: S v Bruce 1990 (2) SA 802 (AD) at 807H-808A where the court stated as follows: 'The primary rule in the construction of statutory provisions is to ascertain the intention of the Legislature. One does so by attributing to the words of a statute their ordinary, literal, grammatical meaning. Where the language of a statute, so viewed, is clear and unambiguous effect must be given thereto, unless to do so... would lead to absurdity so glaring that it could never have been contemplated by the Legislature, or where it would lead to a result contrary to the intention of the Legislature, as shown by the context or by such other considerations as the Court is justified in taking into account... The words used in an Act must therefore be viewed in the broader context of such Act as a whole... When the language of a statute is not clear and unambiguous one may resort to other canons of construction in order to determine the Legislature's intention. (Case references omitted.)

68. Both counsel Mr Kemp and Mr Trengove submitted that there was no ambiguity and that sensible meaning could be given to the words in the sub-section in question. It may be as well at the outset to define the limits of the competing arguments over the interpretation of the sub-section. It is clear that what occurred was a decision by the NDPP either by himself or in all probability in conjunction with the head of the Directorate of Special Operations, a Deputy National Director, Mr McCarthy. Secondly, the process they went through in deciding to prosecute the applicant was clearly a review in its ordinary sense of a reconsideration, alteration or substitution of a previous decision not to prosecute.

69. Although the right or duty to review a decision to prosecute or not to prosecute is clearly discretionary once the NDPP and Mr McCarthy decided to embark on that exercise there must be some circumstances in which, when they did so, they were obliged to consult the relevant Director of Public Prosecutions (DPPs) and take representations within a period specified by the National Director Public Prosecutions, from the accused person, the complainant and any other person or party whom the NDPP considers to be relevant. In other words there is no merit in an argument that there are no circumstances in which he or they are not obliged to consult inter alia the accused.

70. As it common cause that this obligation to take representations relates only to the NDPP it does not apply to a prosecutor in the Magistrates' Court or the High Court, when confronted with a possible review of a decision to prosecute or not to. The words 'after consulting the relevant DPPs' seemed to be the cause of the most controversy in argument. Mr Trengove submitted that the duty of a NDPP to take representations of an accused were limited to only those occasions when he was overruling a decision of a DPP and not when he was overruling his own decision or the decision of his predecessor.

71. In other words the contention of the applicant, so the argument for respondent went, meant that the sub-section should be read without the words in question. In that event the sub-section would read that '[The National Director Public Prosecutions] may review a decision to prosecute or not to prosecute after taking representations within a period specified by the National Director Public Prosecutions, from the following: the accused person, the complainant and any other person or party whom the National Director considers to be relevant.'

72. Had the sub-section read in that fashion there would have been no doubt that the applicant had to have a chance to make representations once the NDPP embarked on a review. Mr Kemp submitted that the sub-section does not state that '[The National Director Public Prosecutions] may review a decision to prosecute or not to prosecute of a Director of Public Prosecutions, after consulting etc...' It is also clear that the words in italics are not present and their inclusion would have also put the matter beyond any doubt. The real importance in the sub-section seems to be to allow representations, by an accused, where a decision not to prosecute has been reversed, and to a complainant, where a prior decision to prosecute has been altered to one not to prosecute.

73. Assuming that there must be occasions when representations had to be heard from an accused, those made by the NDPP would be in more serious matters than those made by the DPPs and their subordinates. Looked at from the perspective of the NDPP, the right to simply reverse his own previous decision not to prosecute, might be seen to arise from his elevated status. From the perspective of the accused, the fact that a decision required the attention of the NDPP would necessarily be of great moment to him (the accused) and would obviously require such an accused to be afforded the opportunity to make representations. That he cannot make representations in such a case, on the respondent's version, would also, for obvious reasons, be an absurdity.

74. Another absurdity would be that an unscrupulous DPP intent on having a previous decision changed could either change it himself or ask someone below the rank of NDPP i.e. a Deputy National Director to review the decision. In each case the accused would be out in the cold in the sense of not being able to make representations.

75. I am of the view that all these considerations incline me to hold that there does seem to be some ambiguity in the sub-section and the words are not capable of unequivocal interpretation. Looked at from the accused's perspective there is also a glaring absurdity that the review of a decision not to prosecute him of a lower subordinate of the NDPP, i.e. the DPP, in arguably a less serious matter would entitle him to make representations, while a more serious matter involving the decision of the NDPP alone would leave him out in the cold.

76. Given that there are these and other glaring absurdities and that the negation of the right of an accused to make representations may lead to a result contrary to the intention of the Legislature, it is necessary to look at the context in which the words appear in the Act as a whole. As appears from the authority cited earlier when the language of a statute is not clear and unambiguous one may also resort to other canons of construction in order to determine the Legislature's intention.

77. To ascertain the intention of the legislature we have to look at the mischief the new provisions were designed to remedy. In order to properly understand the provisions of the section it is necessary to look at the history of the Act and its predecessors.

78. From time immemorial the executive has cherished the notion of usurping the independent function of the prosecuting authority and directing criminal prosecutions at its political opponents. That it was so under the Apartheid Government is manifest and the catalogue of prosecutions, from the Treason Trial in the early sixties, to the plethora of prosecutions thereafter under the Terrorism Act of 1967, bear witness to that stratagem. Many activists, fighting against the apartheid system, languished for many years behind bars, as a result of prosecutions at the instance of the executive.

79. The political control of prosecutions was effected by a series of statutes, the last, during the Apartheid era, being section 3 of the CPA. Section 3 of the CPA provided the authority to prosecute prior to 1992 and gave the Minister of Justice complete control over the provincial attorneys-general. Section 3(5) provided as follows:

'An attorney-general shall exercise his authority and perform his functions under this Act or under any other law subject to the control and directions of the Minister who may reverse any decision arrived at by an attorney-general and may himself in general or in any specific matter exercise any part of such authority and perform any of such functions.'

80. The daunting prospect of the Minister of Justice, in the new South Africa, giving directions for prosecutions against the architects and executioners of the Apartheid policy, galvanized the mostly white legislature to pass the Attorney-General Act, no 92 of 1992, (the AG Act) in its death throes. The AG Act took away all political control over prosecutions, repealed section 3 of the CPA and provided in section 5(1) that every attorney-general had the authority to prosecute in any court within his jurisdiction. Section 108(1) of the Interim Constitution repeated the notion of an absence of political interference, when it vested attorneys-general with the power to institute prosecutions on behalf of the State.

81. Section 179 of the Final Constitution introduced the notion of National Director of Public Prosecutions (the NDPP) with powers of control over the old provincial attorneys-general, who now became Directors of Public Prosecutions. 82. A perusal of the remaining sub-sections of section 179 assists in interpreting the statute. Section 179(5) provides the NDPP with the responsibility to determine, with the concurrence of Cabinet members, responsible for the administration of justice and after consulting DPPs, prosecution policy which must be adhered to in all prosecutions. In addition he bears the responsibility to issue policy directives, which must be observed in all prosecutions. The corollary of this is the power of the NDPP to intervene in the prosecution process when prosecution policy directives are not complied with.

83. Section 179 provides for the creation of the Prosecuting authority. In terms of sub-section (1) it calls into being a single national prosecuting authority consisting of the NDPP, who is the head of the prosecuting authority, and is appointed by the President, and Directors of Public Prosecutions ('DPPs') and prosecutors as determined by an Act of Parliament.

84. Sub-section (2) of section 179 provides that the prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings.

85. Sub-section (3) provides that national legislation must ensure that the DPPs are appropriately qualified; and are responsible for prosecutions in specific jurisdictions, subject to subsection (5). Sub-section (4) continues by providing that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. I interpolate here to mention that this is but one of many clear indications that the NDPP and the prosecuting authority are independent and must be free of all political interference. Further reference will be made to this but it is instructive to note that the Constitutional Court has asserted this independence in no uncertain terms. Mention has been made of the Certification case in which the Constitutional Court held there is accordingly a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the Courts.

86. In Carmichele v Minister of Safety and Security and Another 2002 (1) SACR 79 (CC) the court held 'Prosecutors have always owed a duty to carry out their public functions independently and in the interests of the public.'

87. Sub-section (5) provides that the NDPP must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the DPPs prosecution policy and must issue policy directives which must be observed in the prosecution process. The NDPP may intervene in the prosecution process when policy directives are not complied with and may review a decision to prosecute or not to prosecute as I have indicated above.

88. Sub-section (6) provides that the Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority. That this does not imply any right to interfere with a decision to prosecute is clear from what follows. 89. In their submissions to the Enquiry into the NDPP (the Pikoli Enquiry) by the South African Institute for Advanced Constitutional, Public, Human Rights and International law by Hannah Woolaver and Michael Bishop published in Advocate August 2008 at page 31 the authors state :

'Therefore, the Minister's powers of oversight are confined to those included in the Act. As already discussed, these include the requirement that the Minister approve prosecution policy, and various duties on the NDPP to provide information and submit reports to the Minister. The Act gives no power to the Minister regarding the exercise of prosecutorial discretion in individual cases. As such, individual decisions regarding whether or not to prosecute in a particular case are not within the purview of the Minister's 'final responsibility'. These rest in the exclusive discretion of the prosecuting authority, and ultimately the National Director.'

90. I agree with this summary of the position. Pursuant to the imperative to produce national legislation parliament has passed the NPA Act, which provides in terms of section 22 for the NDPP as the head of the prosecuting authority, to have authority over the exercising of all the powers, and the performance of all the duties and functions conferred by the Constitution or that Act law. Of particular interest in the present enquiry is sub-section (4) which provides that in addition to any other powers, duties and functions conferred on the NDPP he may conduct any investigation he may deem necessary in respect of a prosecution and may direct the submission of and receive reports from a DPP in respect of a case, a matter, a prosecution or a prosecution process or directions.

91. Section 32 provides a further indication of the desire of Parliament to prevent interference, political and otherwise from the decisions to prosecute. It provides for the impartiality of, and oath or affirmation by members of prosecuting authority. Sub-section (1)(a) provides that a member of the prosecuting authority shall serve impartially and carry out his duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law. Sub-section (1)(b) provides a very strong imperative against interference with a member of the prosecuting authority. It provides that no organ of state and no member of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority in the exercise of its duties and functions.

92. To enforce the seriousness of this prohibition on any interference by any person from the President downwards section 41 provides that contravention of that sub-section is a serious offence and any person contravening it shall be liable on conviction to a fine or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment.

93. That there should be no political influence was trenchantly stated in S v Yengeni 2006 (1) SACR 405 (T) at paragraph [51] where Bertelsmann and Preller JJ observed 'The Constitution guarantees the professional independence of the [NDPP] and every professional member of his staff, with the obvious aim of ensuring their freedom from any interference in their functions by the powerful, the well-connected, the rich and the peddlers of political influence.' 94. What the learned judges were saying in that case was that the independence of the prosecuting authority is vital to the independence of the whole legal process. If one political faction or sectional interest gains a monopoly over its workings the judiciary will cease to be independent and will become part of a political process of persecution of one particular targeted political enemy.

95. How then does this impact on the power of the NDPP to review a decision to prosecute or not to prosecute? He sits at the apex of the prosecuting authority, insulated from political interference and is the final decision maker in the prosecuting process. Should an accused challenge a decision to prosecute, the NDPP is the final port of call in the administrative process of making representations. Having been largely instrumental in creating prosecuting policy and after giving prosecuting directives he is obliged to ensure they are carried out.

96. The hierarchy of prosecuting authority requires that decisions to prosecute are made by various levels in descending order from the NDPP and down through the ranks of DPPs to the lowest prosecutor. The NDPP is empowered alone to authorize prosecutions in certain instances including the Prevention of Organised Crime Act, no 121 of 1998, sections of the Films and Publications Act 65 of 1996, and The Implementation of the Rome Statute of the International Criminal Court Act, no 27 of 2002. The fact that authorization is required from the NDPP tends to suggest that he is not involved in the actual prosecution itself and authorizes the DSO to prosecute. Apart from that the lower levels of prosecutors below DPPs exercise a delegated authority to bring prosecutions in the courts.

97. Acting on this delegated authority prosecutors decide to prosecute or not depending on criteria established in the policy directives emanating from the prosecution policy. The prosecution policy talks of exercising its function 'without fear, favour or prejudice' and that the process must be 'fair, transparent, consistent and predictable'. It purports to promote 'greater consistency in prosecutorial practices nationally'. It requires 'members of the Prosecuting Authority to act impartially and in good faith. They should not allow their judgment to be influenced by factors such as their personal views regarding the nature of the offence or the race, ethnic or national origin, sex, religious beliefs, status, political views or sexual orientation of the victim, witnesses or the offender.'

98. The policy states further that 'The decision whether or not to prosecute must be taken with care, because it may have profound consequences for victims, witnesses, accused and their families. A wrong decision may also undermine the community's confidence in the prosecution system... Once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable prospect of a conviction, a prosecution should normally follow, unless public interest demands otherwise.'

99. The prosecution policy deals with the question of public interest and mentions factors that should be taken into account including 'the seriousness of the offence,... the manner in which it was committed, the motivation for the act and the relationship between the accused and the victim. The nature of the offence, its prevalence and recurrence, and its effect on public order and morale.'

100. The policy also makes mention of 'the need for individual and general deterrence, and the necessity of maintaining public confidence in the criminal justice system.'

101. Mention is also made of the circumstances of the offender including, 'previous convictions, criminal history, background, culpability and personal circumstances as well as other mitigating and aggravating factors.'

102. The policy speaks about restarting a prosecution and says the following 'People should be able to rely on and accept decisions made by members of the Prosecuting Authority. Normally, when a suspect or an accused is informed that there will not be a prosecution or that charges have been withdrawn, that should be the end of the matter. There may, however, be special reasons why a prosecutor will review a particular case and restart the prosecution. These include... an indication that the initial decision was clearly wrong and should not be allowed to stand; an instance where a case has not been proceeded with in order to allow the police to gather and collate more evidence, in which case the prosecutor should normally have informed the accused that the prosecution might well start again... a situation where a prosecution has not been proceeded with due to the lack of evidence, but where sufficient incriminating evidence has since come to light...'

103. Regard should also be had to the Code of Conduct of the National Prosecuting Authority which was framed by the NDPP in terms of section 22(6)(a) of the NPA Act and which is binding on all members of the Prosecuting Authority. It provides that 'prosecutors should be individuals of integrity whose conduct should be honest and sincere who should respect, protect and uphold justice, human dignity and fundamental rights as entrenched in the Constitution... strive to be and be seen to be consistent, independent and impartial...' The NDPP as a reviewing authority

104. It is important to note that there is a constitutional imperative to carry out the prosecution policy and directives as the constitution uses the peremptory 'must' in stipulating those duties of the prosecution authority. The constitution and the NPA Act, read with the prosecution policy and directives posit a model of criminal justice with a National Director at the apex who is independent, fair, consistent and absolutely free of political influence. In fact to try to influence him is a criminal offence. Everywhere in the constitution, the NPA Act, the prosecution policy and directives and the Code of conduct are references to independence of prosecutors and their duty to act without fear or favour.

105. As the head of the prosecuting authority the NDPP must insure that all prosecutors follow the Constitution, the Act, and the other instruments. His powers to review or reconsider a decision to prosecute or not to prosecute a person must be made in the light of these principles. His constitutional imperative to review decisions to prosecute or not to prosecute is a unique role ascribed to him and allows him to exercise this discretion.

106. The concept of a review or reconsideration assumes a role somewhat elevated to and distant from the person whose decision is being reviewed. It also assumes an unbiased, open and honest reappraisal of the decision to prosecute. It is not to be lightly entertained and is a constitutional imperative directed at affording an accused the right to the reconsideration of a prosecution based on an acknowledgement of the embarrassment, dislocation, disruption and trauma that the mere bringing of a prosecution can entail. The effect of the arguments raised by the respondent is that the applicant is not entitled to enjoy this privilege, which is extended to others who by no stretch of the imagination can be regarded as necessarily more worthy.

107. In this regard I do not consider this application as a satellite or ancillary proceeding and I would distinguish it from the cases, both South African and foreign, cited by Mr Trengove, illustrating the very understandable reluctance of courts to consider matters which should more properly be ventilated in the trial proper. See R v DPP, ex parte Kebeline and Others [2000] 2 AC 326 (HL), Sharma v Brown-Antoine and Others [2007] 1 WLR 780 (PC). In none of those cases was there a provision which is the equivalent of section 179(5)(d).

108. The NDPP is the only member of the prosecuting authority who has such a constitutional and statutory obligation to review and any findings I make are restricted to this very narrow issue.

109. When the NDPP reviews a decision he will exercise this very important obligation in the light of the prosecution policy and directives and other considerations. On various occasions prosecutors have declined to prosecute because of the old or young age of the offender, the triviality of the offence, and the personal tragic consequences to the offender of his offence, where his crime touches those near and dear to him.

110. The NPA Act contemplates a number of prosecution scenarios which need to be considered in turn. The first scenario envisages that the NDPP or any Deputy NDPP, designated by him, has the power to institute and conduct a prosecution in any court in the Republic in person in terms of section 22(9) of the NPA Act. In other words the NDPP can handle the whole case himself and appear personally in court and conduct the prosecution. Nowhere in the papers does it appear that this is such a case.

111. The second scenario posits a prosecution by the DPPs, the old attorneys-general in their area of jurisdiction, in terms of section 24 of the NPA Act. Counsel were in agreement that the words 'after consultation with the relevant DPP' in the Constitution would mean that a review of one of their decisions by the NDPP would definitely require him to take representations from the accused, the present applicant. At the time of the writing of section 179(5)(d) there was no DSO and the occasions when the NDPP prosecuted in person would have been rare, if they ever occurred at all. Even today the manifold duties envisaged by the Constitution and the NPA Act would preclude him ever appearing in person.

112. It follows, therefore, that at the time of the promulgation of relevant sub-section of the Constitution and, indeed the NPA Act, all prosecutions would have been conducted by the DPPs in their geographic regions or their duly authorized prosecutors in the High and Magistrates Courts. This is abundantly clear and is supported by the affidavit of Mr Hofmeyr for the respondent, where he explains that the agreement reached at the Constitutional Committee of 4 April 1996 that drafted the legislation was to that effect. The agreement read in part 'Mr Schutte reported that political parties had reached the following agreements regarding the Attorney-General:

i There would be one prosecutorial authority: consisting of the national attorney-general and other attorneys- general;
ii The attorneys-general would in principle be responsible for prosecutions, with the national attorney-general being responsible for laying down policy guidelines and ordering in specific cases a prosecution where the guidelines have not been met, or where an attorney-general has not met the guidelines and has refused to prosecute...'

113. So at the time of its enactment the sub-section in question would have availed every accused provided the NDPP decided to review a decision to prosecute as they would have all emanated from the DPPs. Excluded would have been the rare occasions he appeared in person.

114. Since the establishment of the DSO, what was the effect of that on the right of an accused to make representations, when the NDPP decided to review a decision to prosecute? The DSO has the power to prosecute and institute criminal proceedings in terms of section 7 of the NPA Act and it seems clear that the prosecution of Mr Shaik and the applicant was carried out by them. The present indictment against the applicant is signed by Aubrey Thanda Mngwengwe and he describes himself as an Investigating Director of the DSO.

115. Section 7(3) of the NPA Act provides that the head of the Directorate of Special Operations shall be a Deputy National Director assigned by the National Director. In terms of section 13(1)(aA) the president, after consultation with the Minister and National Director, may appoint one or more Directors of Public Prosecutions to the DSO. These would be properly qualified advocates, as the legislation prescribes, and similar to the A-Gs of the old days. The effect of this would be that there would be DPPs, who were head of the prosecution authority, in the provinces i.e. the old A-Gs, and the DPPs in the DSO.

116. The investigation into the applicant was 'carried out by the DSO' as Mr Ngcuka said at his press conference. The decision was made by the NDPP and Mr McCarthy, who was a Deputy National Director of Prosecutions and head of the DSO. This is not denied by the respondent in his answering affidavits. In fact the respondent puts up an affidavit by McCarthy in which he says 'Ngcuka and I did not accept the investigation team's recommendation...'

117. The NDPP and McCarthy overruled the decision of the investigation team, which was headed in all probability by a DPP. Senior Special Investigator du Plooy says in the answering affidavit he was 'duly designated by the Investigating Director to conduct the investigation...' Such would be an Investigating DPP. If the NDPP was to properly exercise his review powers with regard to DPPs it necessarily implies that he did not make the decision as such to prosecute as this would nullify his independence with regard to the review. Although he clearly did make the decisions in conjunction with McCarthy and probably a DPP that fact alone should, in my judgment, not have disentitled an accused to make representations.

118. The DSO as a juristic entity had not come into being and naturally there is no mention of it in 179(5)(d). Should the Constitution be read so as to include the DSO (which does have DPPs) when it mentions consultation with the relevant DPPs? Section 39 of the Constitution

119. Section 39 of the Constitution deals with the interpretation of legislation including the Bill of Rights. It provides as follows: '39(1) When interpreting the Bill of Rights, a court, tribunal or forum-

(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

120. If it is clear that when interpreting the Bill of Rights, a court must promote the values that underlie an open and democratic society that is based on human dignity, equality and freedom. The provision of the right to make representations to an accused would pay appropriate tribute to his right to human dignity, given the opprobrium that is normally attendant upon a criminal trial. It would be grossly unequal to allow representations to an accused on the happenstance that his case emanated from a decision by a DPP and not the Deputy National Director, who was head of the DSO. It might well have gone through the hands of a DPP (the advocate with legal knowledge) in the DSO. I have mentioned that the head of the investigation team was probably a DPP and therefore the decision to prosecute involved consultation with him. We know from the press articles annexed that Mr Mpshe was consulting with his investigation team (headed by a DPP) before instituting a prosecution in the second half of 2007. I therefore conclude that he should have consulted with the applicant as well.

121. As I have mentioned sub-section (2) provides that when interpreting any legislation, which must include the Constitution itself, otherwise it would be self contradictory, every court must promote the spirit, purport and objects of the Bill of Rights. These rights include the very values that I have mentioned of human dignity, equality and freedom. The proper exercise of the NDPP's review may in a proper case result in an accused's freedom in the sense that if he decides to decline to prosecute, the accused does not stand in jeopardy of conviction and incarceration.

122. A consideration of the jurisprudence of the Constitutional Court, with regard to interpreting legislation, would seem to fortify me in this view. In Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors 2001 (1) SA 545 (CC) the Court held at paras [21]-[24] that:

'All law-making authority must be exercised in accordance with the Constitution. The Constitution is located in a history which involves a transition from a society based on division, injustice and exclusion from the democratic process to one which respects the dignity of all citizens, and includes all in the process of governance. As such, the process of interpreting the Constitution must recognise the context in which we find ourselves and the Constitution's goal of a society based on democratic values, social justice and fundamental human rights... The Constitution requires that judicial officers read legislation, where possible, in ways which give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, they are under a duty to examine the objects and purport of an Act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution... Accordingly, judicial officers must prefer interpretations of legislation that fall within constitutional bounds over those that do not, provided that such an interpretation can be reasonably ascribed to the section...' Reading in and reading out

123. It must be recalled that section 179(5)(d) speaks of the right the NDPP has to review decisions and then there is a comma followed by a number of sub-clauses. The sub-clauses conclude with the right of the NDPP to consult with any other person or party whom the NDPP considers to be relevant. Clearly the widest possible powers are given to the NDPP when he embarks on his review. It would seem to me to do no injustice to language to include the head of the DSO who is a Deputy NDPP.

124. As I have indicated when section 179 of the Constitution was fashioned all prosecutions flowed through the DPPs (except the rare occasions - if ever - when the NDPP personally prosecuted) and therefore every time the NDPP reviewed a decision he would have had to hear representations from the accused. With the advent of the DSO in 2000 no amendment was made to the NPA Act or the Constitution to include prosecutions that have their genesis there. In dealing with the present state of the NPA Act it is necessary to embark on the process of interpretation known as reading in.

125. The South African courts first accepted the notion of reading in as an acceptable constitutional remedy in National Coalition of for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC). In that case the court set out the following considerations inter alia for embarking on the process of reading in. I am paraphrasing paragraphs [73] - [76] of the judgment. The court held that the resulting provision once the words have been read in, must be consistent with the constitution. The resulting provision must interfere as little as possible with the laws adopted by the legislature and the court must be able to, in reading in the words, define with sufficient precision how the statute ought to be extended to comply with the constitution. I believe that to read into the legislation in question (the NPA Act) in such a manner as to extend the group that presently appears to be limited to DPPs, to include the NDPP himself and Deputy NDPPs, would be eminently consistent with the constitution and would define with sufficient precision the group involved.

126. All these circumstances incline me to the view that a proper interpretation of the sub-section in question means that the NDPP ought to have taken representations from the applicant before deciding to prosecute him. The failure to do so means that what he did was not a decision in terms of section 179(5)(d) and it was not therefore prohibited from scrutiny and review by the court in terms of PAJA. The NDPP offer to hear representations

127. The denial of the right to make representation was attacked on another basis and although made in a slightly different context I am inclined to determine that point as well on the basis of the decision of the Constitutional Court in the case of S v Jordan and others (Sex Workers Education and Advocacy Task Force and others as Amici Curiae) 2002(6) SA 642 (CC) at para 21.

128. Mr Kemp on behalf of the applicant has argued that the NDPP, in the person of Mr Ngcuka, extended an invitation to the applicant, alternatively the world at large, to make representations on the matter of the prosecution in the matter of Mr Shaik, his entities and the applicant. Mention has been made of the Press statement made on 23 August 2003 and such contains the following paragraph: '25. We have never asked for nor sought mediation. We do not need mediation and we do not mediate in matters of this nature. However, we have no objection to people making representations to us, be it in respect of prosecutions or investigations. In terms of section 22(4)(c) of the Act, we are duty bound to consider representations.' (Emphasis added).

129. What value does the court place on the NDPP's statement that he had no objection to people making representations to him, be it in respect of prosecutions or investigations? The statement was prefaced with the mention of mediation and it could only have referred to a possible mediation with the applicant and his legal representatives. The NDPP undertook to consider representations. The simple corollary of this was that he had no objection to their receipt. But he went further and said that in terms of section 22(4)(c) of the NPA Act, he was duty bound to consider the representations. Again that seemed to be a promise and pledge to consider the representations.

130. Section 22(4)(c) provides that in addition to any other powers, duties and functions conferred or imposed on or assigned to the National Director by section 179 or any other provision of the Constitution, this Act or any other law, the National Director, as the head of the prosecuting authority, may consider such recommendations, suggestions and requests concerning the prosecuting authority as he or she may receive from any source.

131. The NDPP said he was duty bound to accept such representations as were tendered in terms of that section. The simple meaning was that it was a solemn undertaking to consider them when they came from any source. As far as I understand the position that offer was never retracted or withdrawn by Mr Ngcuka or any of his successors.

132. The applicant's attorneys wrote a letter to the NDPP dated 11 October 2007 requesting an opportunity to make prior representations in respect of any decision to charge him. The letter is annexed and reads in part as follows:

'The recent developments in the NPA inter alia; 1. The suspension of the National Director of Public Prosecutions;
2. The meeting of the Directorate of Special Operations of 25 June 2007;
3. The appointment of an acting National Director of Public Prosecutions has not gone unnoticed.
Further, it has been reported that your office is intent on engaging in a review of certain cases of which the case against Mr Zuma constitutes one such case.

Through the proceedings and the documentation filed of record between Mr Zuma and the NDPP it is abundantly clear that certain allegations have been made about the manner in which both the investigation and the prosecution have occurred. Accordingly may we request that in the conduct of such a review, that we be afforded an opportunity to make representations either orally or in writing which may better inform the decision which we understand you are applying your mind to.'

133. The suspension mentioned in the letter refers to the suspension of Mr Pikoli by the President and the appointment of an acting National Director, Mr Mpshe. The allegations that were made clearly related to the charge from the applicant that his case was being politically driven. The response by Mr Mpshe given the next day was very laconic and reads as follows: 'The J.G. Zuma matter is not a subject of a review. This matter is undergoing further investigations the normal route for a decision to be taken. It is still being dealt with by the DSO.'

134. It could be argued that this is not a refusal to hear his representations but it was hardly a positive response. If the applicant's matter was not subject to a review then there would be no need for the NDPP to hear representations. The only implication is that it was a refusal to consider any representations. It is not clear that the applicant was following up on the offer, made by Mr Ngcuka, at the press conference I have mentioned. Even if he was unaware of such offer it does not seem to matter, as long as the offer remained open.

135. Mention is made in the letter of the review of certain cases and this is clarified as follows by the applicant, who states that during 2007 the NPA reviewed various cases, including that of Commissioner J Selebi. Certain newspaper reports are annexed. Following Mr Pikoli's suspension Mr Mpshe was appointed acting NDPP and he applied to have certain warrants directed at Mr Selebi set aside.

136. Applicant says 'My case was one of those reported to be under review. It would be odd and constitute unequal and discriminatory treatment if my case was not reviewed and no representations were called for.'

137. The newspaper article in question states 'The NDPP will decide soon whether to proceed with charging two of the country's most powerful figures ANC presidential frontrunner Jacob Zuma and police commissioner Jackie Selebi. The NPA said yesterday that Mokotedi Mpshe was 'deliberating' the way forward in both cases... NPA spokesman Tlali Tlali said Mpshe had met the team investigating Zuma and was presented with a 'final briefing' on the contin