South Africans might not be clear who in the ANC is winning the battle, but there is little doubt that it is the people of the country who are losing, writes Howard Feldman.
Paul Herman, News24
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.
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the legal processes on emergence of the “spy tapes” and allow the courts to decide if the charges should have been withdrawn.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...
"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."
"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."
“Mpshe's decision was clearly irrational.
The prosecution team and Mr Downer were not made aware
If it had been rational and above board, why were the
secrecy, why not tell on April 1 when the decision was made?”
“There is no record that there was a change of view to
Following 1 April 2009, Mr Mpshe announced that after
listening to the tapes he was angry and felt betrayed and decided to
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.”
“It may well be that there is a possible explanation for
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.”
"Contradictions in Mr Mpshe’s affidavits explaining his
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.
"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
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."
"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.
“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
Mr Mpshe’s decision to discontinue was a response to
alleged abuse of power by Mr McCarthy.”
"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
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
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.
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.
"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
"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."
“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
“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.”
"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
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
The prosecution team and deputies were of the view that prosecution
On 2 April 2009, prosecution team had not been informed and
a decision to discontinue prosecution was taken."
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.
"NPA management informed prosecution team of contents of oral
representations and came to conclusion they had a good case to pursue against Mr
"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.'"
"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."
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
"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."
"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."
"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."
"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."
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.
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