Dropping of charges can be challenged, lawyers for Zuma, NPA concede

2012-02-15 16:36

The National Prosecuting Authority (NPA) and President Jacob Zuma’s lawyers conceded in the Supreme Court of Appeal (SCA) that a decision to drop charges against a person could be challenged in a court of law.

Arguments were heard today as to whether the DA can challenge the decision by acting national director of public prosecutions Mokotedi Mpshe to drop corruption charges against Zuma in 2009, shortly before he became president of the country.

Supreme Court Judge Mahomed Navsa asked Paul Kennedy (SC), appearing for the NPA, if the office of the National Director of Public Prosecutions (NDPP) was “beyond judicial scrutiny”, even in cases where the NDPP was doing “all sorts of crazy stuff in the NPA”.

“Assuming I’m a law abiding citizen who pays my taxes and values the institutions of democracy and someone puts in my hand evidence of major corruption in the NPA ... Are you saying the NPA can say ‘No, we’ve made our decision not to prosecute?’”

Kennedy conceded that such a decision could be challenged but only on a “very, very narrow ambit”.

He had previously said a decision to terminate prosecution was part of a certain category of decisions taken by state functionaries which “cannot be reviewed”.

But under a barrage of questions from Navsa, Judge President Lex Mpati and acting judge Clive Plasket, Kennedy conceded that such a decision could be reviewed under the principle of the rule of law, but not under the Promotion of Administrative Justice Act as argued by the DA.

Kemp J Kemp (SC), appearing for Zuma, said he had never argued that the decision to terminate prosecution was not reviewable under the principle of the rule of law, but that the circumstances of Zuma’s case did not allow for it.

Kemp argued that the DA was acting in its own political interest, not the public interest, and said the case had been planned before the decision by Mpshe was even taken.
Asked if he would go so far as to say the DA acted in “bad faith”, Kemp agreed.

Navsa said the case appeared to be a case of the “tail wagging the dog” because what Kemp was arguing “should have been argued before the high court”.

Navsa was referring to the fact that the North Gauteng High Court had ruled that the DA and Dr Richard Young and his arms company CCII, who have intervened in the case, did not have the legal standing or right to approach the court in this matter.

This is contrary to what the DA was asking it to do, namely to force the NPA to disclose the evidence Mpshe had used to make the decision.

The question of standing should generally be determined as part of the main application – the DA’s application to have Mpshe’s decision reviewed – when more evidence is before the court.

Instead, the North Gauteng High Court found in favour of Zuma and the NPA’s objection that the DA and Young did not have standing.

The DA brought the main application, to have Mpshe’s decision reviewed, under the auspices of the Promotion of Administrative Justice Act.

The act allows a court to review an administrative decision that has a material effect on a person’s rights, but excludes “a decision to institute or continue a prosecution”.

The DA argues that the act does not make reference to the case where a decision to prosecute is discontinued.

Kemp and Kennedy argued against this interpretation.

The DA, however, also argued that Mpshe’s decision can be challenged on the basis that it violates the principle of the rule of law, a founding provision of the Constitution.

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