Decision to drop Zuma corruption charges 'irrational', set aside - As it happened

2016-04-29 09:42

The High Court in Pretoria has said the decision taken by former NPA head Mokotedi Mpshe to drop corruption charges against President Jacob Zuma in 2009 was irrational.

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Last Updated at 08:14
29 Apr 13:49

In summary:

Judge Aubrey Ledwaba found three contradictions in Mr Mpshe’s affidavits explaining his decision to withdraw the charges against President Zuma.

Mr Mpshe should have followed the legal processes on emergence of the “spy tapes” and allow the courts to decide if the charges should have been withdrawn.

He acted "alone and impulsively", and therefore his decision was “irrational”.

The decision from 2009 has been set aside.

The NPA and its head Shaun Abrahams must now decide if it will recharge President Jacob Zuma with the original 783 counts of corruption.

Scroll below to see how the verdict unfolded...


29 Apr 11:36
"The DA’s application succeeds:  The decision of first respondent in 2009 to discontinue prosecution is reviewed and set aside."

29 Apr 11:29

"This court finds there is no substance in submissions of respondents.

We find that Mr Mpshe found himself under pressure, and consequently made an irrational decision.

Mr Mpshe ignored the importance of his oath of office."


29 Apr 11:28

"Mr Mpshe's feelings of anger and betrayal upon hearing the tapes caused him to act impulsively, and not consider the legal processes involved.

"It is a breach of law in not treating respondents equally before the law."


29 Apr 11:27

“Mpshe's decision was clearly irrational. The prosecution team and Mr Downer were not made aware of decision.

If it had been rational and above board, why were the secrecy, why not tell on April 1 when the decision was made?”


29 Apr 11:25

“There is no record that there was a change of view to prosecute.

Following 1 April 2009, Mr Mpshe announced that after listening to the tapes he was angry and felt betrayed and decided to discontinue prosecution.

When he announced his decision, no discussion was held with senior officials of the NPA.

It is expected that they individually would have formed some views on the matter.”


29 Apr 11:23

“It may well be that there is a possible explanation for these contradictions.

But failure to refer the matter to the court shows that Mr Mpshe acted irrationally.

The DA submits that Mr Mpshe lied when he failed to disclose the truth to Mr Downer in December 2007.

Mpshe was also persuaded by the discussion that he had with the minister on the day before he telephoned Mr Downer.”


29 Apr 11:22

"Contradictions in Mr Mpshe’s affidavits explaining his decision:

1) Mpshe took the decision as it was his and his alone.

2) He claimed to have been influenced by McCarthy.

3) Third version was that the decision was made by McCarthy and that he had to support the decision. 

Why would he have had difficulty relaying this to Mr Downer if the decision was not his?" says Ledwaba.


29 Apr 11:11

"In February 2009, the KZN division of the high court issued order that zuma would file papers on 18 May 2009.

This meant that such an application had to be filed in 6 weeks time.

Mpshe does not state why he could not wait a further 6 weeks.

The matter has a protracted history since 2007 and we don’t understand why Mr Mpshe wanted to finalise the matter in a month. In this instance, the bases of alleged abuse of processes rested on legally tested process.

Mr Mmpshe, by not referring the complaint of abuse of process and related allegations against McCarthy, rendered his decision irrational."


29 Apr 11:08
“In March 2000, a draft letter to Mr Hardy referred to Mr Mpshe and the NPA official expressed the view that the matters raised in presentation made on behalf of Mr Zuma must be dealt with by a court of law during a trial. It is interesting Mr Mpshe decided to discontinue prosecution.”

29 Apr 11:06
However, Judge Ledwava continues, it was argued that if the allegations regarding Mr McCarthy were true, the decision to drop charges should have been made by a court of law.

29 Apr 11:02
"It isn't possible or desirable for the NPA to continue with Zuma's prosecution," Mr Mpshe had said at the time.

29 Apr 11:00

"In his 12-page media address of the announcement, Mr Mpshe relied on the abuse of processes to discontinue prosecution against Mr Zuma.

In the same media address, Mr Mpshe referred to other cases to back up his decision to drop charges.


29 Apr 10:59

“The NDPP derives his authority from section 179 of the Constitution. The NDPP is also empowered by policy directives.

The NDPP and all officials of the prosecution were required to act within confines of these legal instruments.

They were called to protect and preserve the integrity of prosecution.

Mr Mpshe’s decision to discontinue was a response to alleged abuse of power by Mr McCarthy.”


29 Apr 10:57

"In addition, as held by the ConCourt as soon as the matter was struck from the roll, the proceedings were no longer pending.

Mr Mpshe’s decision was not simply a review of Mr Bulelani Nguka's decision."


29 Apr 10:56

Rationality involves substantive and procedural aspects, says Judge Ledwaba.

The abuse by Mr McCarthy was of such a nature that the decision not to prosecute was rational.

There was serious breach of law and prosecutorial policy.

His conduct as alleged in the transcript is proven and called for intervention.

Mr Mpshe told the media that substantive merits and fair trial were not taken.


29 Apr 10:48

The decision was taken because of McCarthy's alleged misconduct.

These were 3 important decisions.

Judge Ledwaba is now dealing with the rationality as a ground for review.


29 Apr 10:44

"Mpshe made the decision not to continue with the Prosecution of Mr Zuma.

"The prosecution team itself recommended that prosecution continued, and that it should be left to court of law to decide whether to stop prosecution."


29 Apr 10:43

"Judge will now deal with reasons for Mr Mpshe's reasons.

Mr Leonard McCarthy and others were alleged to have manipulated the timing of serving an indictment on Mr Zuma It was not so much the prosecution that was tainted, but the legal process, Mr Mpshe had argued.

Mr McCarthy's conduct amounted to serious abuse of protest, Mr Mpshe had said."


29 Apr 10:41

“It was impossible to digest and comment on it”, the leader of the prosecution team said at the time.

On 7 April 2009, the DA announced the present application.

On 8 April 2009, charges against Mr Zuma were formally withdrawn.


29 Apr 10:39

“On 6 April 2009, Mr Mpshe met with prosecution team to inform them of the decision.

He later publicly announced the decision taken on 1 April 2009 to discontinue prosecution, and stated his reasons in the press.

The leader of the prosecution team said legal aspects of the motivation were not given to team before hand.”


29 Apr 10:37
"Mr Mpshe said his decision to stop prosecution was not improperly influenced by Mr McCarthy."

29 Apr 10:35

"1 April 2009, Mr Mpshe said he would make a decision.

There was no doubt that prosecution would proceed. Mpshe had been reluctant to listen to the tapes. 

On 31 March 2009 the deputies and Mr Mpshe listened to the tapes. This after it was reported to him and informed him as to the contents of the tapes.

On 1 April 2009, Mr Mpshe met with his deputies and informed them that he had been disturbed by what he heard on tapes and decided to discontinue prosecution.

The prosecution team and deputies were of the view that prosecution should continue.

On 2 April 2009, prosecution team had not been informed and a decision to discontinue prosecution was taken."


29 Apr 10:31

The gist of the info submitted is recorded - he advised against acceding to the representations.

On 23 March 2009, Mr Mpshe informed the DA he was not at liberty to attend their request to have insight into Mr Zuma's representations.

They were made confidentially.


29 Apr 10:30

"NPA management informed prosecution team of contents of oral representations and came to conclusion they had a good case to pursue against Mr Zuma.

"The DA became aware of the legal representatives of Mr Zuma and made representations to the NPA concerning the pending prosecution.

"Mr Mpshe informed DA 'you are most welcome to make written representations to me but request that it reaches me before March... as it is the date I said I would apply my mind.'"


29 Apr 10:28

"10 Feb 2009, the NPA received written representations from Mr Zuma's legal reps.

"The national and provincial elections were scheduled to take place March 2009 and inauguration in May 2009.

"On 20 February 2009, Mr Zuma's legal reps made further oral representations to Mr Mpshe."


29 Apr 10:26

Prosecution team briefed Mr Mpshe in November 2007 and the decision to prosecute was finally taken.

Mr Mpshe and the Minister of Justice had a conversation on 4 December 2007 where the minister raised concern regarding safety and stability of the country if this went ahead before Polokwane.

Mr Mpshe decided the serving of indictment would be delayed to Jan 2008.

In June 2008, Mr Zuma launched an application in the KZN high court for a review of the decision taken to prosecute him.

On 12 December 2008, Judge Nicholson ruled in favour of Mr Zuma.


29 Apr 10:23
The judges are now going through the background of the case.

29 Apr 10:22

"On 1 April 2009, Mr Mpshe took the decision to discontinue prosecution against Mr Zuma and announced it publicly, which triggered this application.

"It took almost 7 years for it to be heard by this court. Reason for the delay amongst others were that there were two applications.

"The 1st was a challenge raised by the NDPP and Mr Zuma. It contended that the DA did not have standing to bring this review application, and questioned whether the NDPP was compelled to furnish record to the DA.

"Order granted in favour of NDPP and Mr Zuma, but was reversed by the Supreme Court of Appeal.

"In the matter of the DA vs acting director of the NPA, the court had to determine whether the transcripts of conversations recorded on the tapes should be handed over."


29 Apr 10:17

"On 28 November 2007, a decision to prosecute Mr Zuma was made by Mr Mpshe.

"It was struck from the roll in 2007. The decision to charge Zuma was taken when ANC was about to hold its conference in Polokwane.

"A president of the ANC was to be elected at the said conference. The main contestants were Mr Zuma and former president Mr Thabo Mbeki

"The timing of serving an indictment on Mr Zuma became an issue."


29 Apr 10:14

"The third respondent is Mr Jacob Zuma.

Mr Zuma is the current president of the republic of South Africa. At time of application, Mr zuma was not yet president."


29 Apr 10:14
"This is a review application launched by the DA, the official opposition party."

29 Apr 10:09

"The judgment of the court has been prepared by us," the judges read.

"We have decided to read it out because we realise the public has an interest."


29 Apr 10:07
Deputy Judge President Aubrey Ledwaba, Judge Billy Mothle and Judge Cynthia Pretorius have arrived and taken their seats.

29 Apr 10:00
The High Court in Pretoria. Still waiting for the judge.

29 Apr 09:58
DA leader Mmusi Maimane has arrived at court for the spy tapes judgment.

29 Apr 09:43

National prayer day postponed "due to unforeseen circumstances"

President Jacob Zuma was on Friday expected to address a National Prayer Day and launch Africa month in Durban but due to unforeseen circumstances, the event has been postponed, the Presidency says.

Zuma was expected to address civil society and religious leaders at the Kings Park Stadium in Durban at around 09:00 but by 8:30, no buses had arrived and the stadium stood empty. This depite frantic preparations yesterday to prepare the stadium for the event.


29 Apr 09:43
"But ultimately the time and the cost is necessary to remind the president, the NPA (National Prosecuting Authority) and South Africa as a whole, that every decision to prosecute or not to prosecute must be made without fear or favour, and that even number one is not above the law," Selfe said.

29 Apr 09:43

According to chairperson of the DA's federal executive, James Selfe, whoever "loses this round" was likely to take the matter to the Supreme Court of Appeal (SCA) and in due course, the Constitutional Court.

"It has taken seven years to get to this point in the litigation, and the finalisation of any appeals process will no doubt take a few years more thereafter...


29 Apr 09:43
The High Court in Pretoria will on Friday hand down judgment in the Democratic Alliance's bid to have the decision to drop corruption charges against President Jacob Zuma reviewed.

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