Zuma record decision 'in public interest'
Bloemfontein - The Supreme Court of Appeal upheld a bid by the DA on Tuesday for access to the records that led to the suspension of criminal charges against President Jacob Zuma in 2009.
The Democratic Alliance wants a review of the decision, by then acting National Director of Public Prosecutions Mokotedi Mpshe, to drop charges against Zuma before he was elected president.
The DA had called on the National Prosecuting Authority to produce the record of proceedings that led to the decision.
The court held that Mpshe's decision on April 6 2009, to discontinue the prosecution of Zuma on corruption charges, would be subject to review. In a unanimous judgment by a full Bench, the SCA found the exercise of public power was regulated by the courts through judicial review.
All equal before the law
Delivering judgment, Judge Mahomed Navsa said that in a constitutional state there were, by definition, legal limits to power, and the courts were bestowed with the authority to determine the legality of various activities. These included those of public authorities.
"In fulfilling the constitutional duty of testing the exercise of public power against the Constitution, courts are protecting the very essence of a constitutional democracy," he said.
This meant the arms of government, every citizen, an institution or other recognised legal entity, were all bound by and were equal before the law.
"We must be intent on ensuring that it is ingrained in the national psyche. It is our best guarantee against tyranny, now and in the future."
The SCA held that Mpshe and Zuma had accepted in argument that the office of the National Director of Public Prosecutions (NDPP) exercised public power and that the decision to discontinue a prosecution was subject to a rule of law review.
In light of this acknowledgement it was difficult to understand why the NDPP persisted in pursuing the appeal on this aspect. This did not reflect well on the NDPP’s office.
The SCA ruled that Mpshe should hand over the record on which his decision was based, to the Registrar of the Supreme Court of Appeal within 14 days.
The record should exclude written representations made on behalf of Zuma and any consequent memoranda or reports prepared in response, or oral representations, if their production would breach confidentiality agreements.
The court held that the record should consist of the documents and material relevant to the review, including those before Mpshe when he made his decision.
On the issue of the DA’s legal standing to bring the matter to court, the SCA held that all political parties in Parliament must necessarily have an interest in ensuring public power was exercised constitutionally and legally.
The judgment held that it was in the public interest and of direct concern to political parties participating in Parliament that an institution such as the NPA acted in accordance with constitutional and legal laws.
"It is of fundamental importance to our democracy that an institution such as the NPA, which is integral to the rule of law, acts in a manner consistent with constitutional prescripts and within its powers."
Navsa said the judgment did not concern the merits of Mpshe’s decision to discontinue a prosecution against Zuma.
NPA spokesperson Mthunzi Mhaga said the agency would study the judgment to determine its next legal steps.
"We wish to state that we still stand by advocate Mpshe's decision and remind all that these were preliminary issues with no direct impact on his decision not to prosecute," he said.