[DEBATE] : (Fwd) Mbalula v Mbeki; Mpshe plagiarism backfires?

Wed Apr 15 11:21:11 BST 2009

Myburgh's original article on Mpshe's unacknowledged ``borrowings'' (the
tabular  formatting will probably get borked in the cutting/pasting process;
the original is here:
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=125134&sn=Detail
 )

*Did Mpshe plagiarise a Hong Kong judge?*

James Myburgh

14 April 2009

The curious similarities between the legal grounds for NPA decision on Zuma
and an obscure 2002 ruling

On Monday last week Acting National Director of Public Prosecution Moketedi
Mpshe announced his decision to drop charges against ANC president Jacob
Zuma. In his statement<http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=124273&sn=Detail>setting
out the grounds for his decision Mpshe cited various (mainly
foreign) legal rulings. He then quoted extracts from damning recordings of
various cellphone conversations between former Scorpions boss Leonard
McCarthy and others in late 2007. These had been presented by Zuma's lawyers
to the NPA in the course of their representations. On the face of it, these
seem to suggest that McCarthy had been acting as a kind of Mbeki-ite mole
within the prosecuting authority.

Having read these extracts Mpshe rather eloquently concluded: "It is against
this broad principle of abuse of process that the conduct of Mr McCarthy
must be seen and tested. The question for close consideration is
encapsulated in expressions such as ‘so gravely wrong', ‘gross neglect of
the elementary principles of fairness', ‘so unfair and wrong', ‘misusing or
manipulating the process of the court.' If the conduct can be so
categorized, it would be unconscionable for the trial to continue."

Quite predictably Mpshe's announcement was welcomed by the ANC and its
alliance partners, and condemned by almost all opposition parties. Debate
around the NPA's decision has focused mainly on the McCarthy recordings,
their meaning and legality. Less attention has been paid to the legal basis
underpinning Mpshe's decision to drop charges. A number of commentators have
noted that the decision quotes - but effectively ignores - the recent
Supreme Court of Appeal judgment which
stated<http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=114133&sn=Detail>that
the motive behind a prosecution is irrelevant.

There was always something odd about the section of Mpshe's statement which
went under the heading ‘legal considerations.' It starts out adequately
enough quoting the South African Constitution and then from the judgment in
the case of the State versus Yengeni.

Things start going slightly awry when Mpshe quotes the following from the
judgment of Smyth v Ushewekonze and Another 1998: "Section 18(2) embodies a
constitutional value of supreme importance. It must be interpreted therefore
in a broad and creative manner so as to include within its scope and ambit
not only the impartiality of the decision making body but the absolute
impartiality of the prosecutor himself whose function, as an officer of the
court, forms an indispensable part of the judicial process."

This judgment was issued by Gubbay CJ in the Harare High Court. The section
referred to is from the old Zimbabwean constitution, not the South African
one. But given that Gubbay cites South African precedent - and this judgment
is cited by judges in South Africa - this does not seem too problematic.

However, things become properly curious as Mpshe proceeds to cite a string
of rulings by the courts of the British Commonwealth. First there Ormrod
LJ's judgment in R v Derby Crown Court, ex Parte Brooks is cited, then Mason
CJ in Jago v District Court of New South Wales, then Lord Lowry in Connelly
v DPP 1964; then Lord Steyn in Regina v Latif , then Lord Clyde in R v
Martin, and finally Lord Hope in R v Hui Chi-Ming.

There are a number of questions that one could ask about this. Are, for
instance, these rulings really relevant to Mpshe's decision to drop charges?
This is not just because South Africa has its own common law and
constitution, but because these judgments all discuss the considerations
that *the courts* should weigh up when asked to stay proceedings. One would
not know this from Mpshe's decision as most references to "the court" have
been excised and replaced with phrases such as the "criminal justice
process". However, the really interesting question is where this all comes
from?

At this point it is useful to divert to a judgment handed down by Justice
Conrad Seagroatt of the Hong Kong High Court on December 13 2002 (see
here<http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=35341>).
One section is headed "The abuse of process - the perennial dilemma" and it
- rather strikingly - cites all the British Commonwealth judgments that
Mpshe's statement referred to. Even more strikingly the phrases quoted are
almost all the same as well - give or take some self-serving summarising,
truncation and rewriting by the NPA (see below).

Most strikingly of all are Justice Seagrott's concluding remarks. These seem
to presage by some six-and-a-half years - almost to the word - the Mpshe
comments quoted above. "*It is against this* evolved statement of *broad
principle*" Seagrott wrote, "that the prosecution's failures and
shortcomings with regard to disclosure *must be seen and tested*. Those *for
close consideration* are best summed up by *such expressions as ‘so gravely
wrong', ‘gross neglect of the elementary principles of fairness', ‘so unfair
and wrong', ‘misusing or manipulating the process of the court'.* If those
failures can properly *be so categorized,* are they such as to make it
*unconscionable
*that a re-trial should go forward?" (My emphasis)

It is rather remarkable how Mpshe's opinion of McCarthy so closely resembles
that of Justice Seagrott's opinion of the prosecution in his case in Hong
Kong. Their conclusions are rather similar as well. Just as Mpshe decided
that "an intolerable abuse has occurred which compels a discontinuation of
the prosecution", Seagrott ruled that "the failures constitute an
intolerable abuse which compel intervention. Accordingly I order a permanent
stay on these proceedings."

Incidentally, the Seagrott ruling was overturned on appeal. In its judgment
the Court of Final Appeal
noted<http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/the%20Court%20must%20take%20account%20of%20the%20important%20public%20interest%20in%20the%20detection%20and%20punishment%20of%20crime,%20more%20particularly%20serious%20crime,%20as%20a%20result%20of%20which%20the%20investing%20public%20has%20suffered%20loss.%20The%20Court%20must%20take%20account%20also%20of%20the%20public%20expectation%20that%20persons%20charged%20with%20serious%20criminal%20offences%20will%20be%20brought%20to%20trial%20unless%20there%20is%20some%20powerful%20reason%20for%20not%20doing%20so.>,
that the court must take account  "of the public expectation that persons
charged with serious criminal offences will be brought to trial unless there
is some powerful reason for not doing so."

Below is a table setting out paragraphs of the Mpshe statement against
relevant sections of the Seagrott judgment.

*Statement by the NDPP, Moketedi Mpshe, on the matter S v Zuma and others,
Pretoria, April 6 2009*

*Judgment by Conrad Seagroatt in criminal case of HKSAR and Lee Ming Tee,
Hong Kong High Court, December 13 2002*

There are generally two categories of abuse of process:

a) a manipulation or misuse of the criminal justice process so as to deprive
the accused of a protection provided by law or to take an unfair advantage
over the accused;

b) where, on a balance of probability the accused has been, or will be
prejudiced in the preparation or conduct of his defence or trial by either a
delay or haste on the part of the prosecution which is unjustifiable. (*R v
Derby Crown Court, ex Parte Brooks* [1985] 80 Cr. App. R 164, per Ormrod LJ)

The Divisional Court in *R v. Derby Crown Court ex parte Brooks* 1985. 80
Cr. App. R. 164 (Ormrod LJ) went on to define the categories of abuse of
process as either

"(a) the prosecution have manipulated or misused the process of the court so
as to deprive the defendant of a protection provided by the law or to take
unfair advantage of a technicality, or

(b) on the balance of probability the defendant has been, or will be,
prejudiced in the preparation or conduct of his defence by delay on the part
of the prosecution which is injustifiable.

The issue can be formulated as follows:

The question is whether a legal or judicial process which is aimed at
dispensing justice with impartiality and fairness to both parties and to the
community which it serves should permit its processes to be abused and
employed in a manner which gives rise to unfairness and/or injustice.
(See *Jago
v District Court of New South Wales*, [1989] 168 CLR 23 at 30, per Mason CJ)

In *Jago v. District Court of New South Wales* (1989) 168 CLR 23 (at page
30) Mason CJ formulated the issue as follows:

"The question is ... whether the court whose function is to dispense justice
with impartiality and fairness to both parties and to the community which it
serves, should permit its processes to be employed in a manner which gives
rise to unfairness."

Prosecutors have an inescapable duty to secure fair and just treatment of
those who come or are brought before them.

This was a hark-back to Lord Devlin's speech in *Connelly's *case (at page
1354): "Are the courts to rely on the Executive (in the form of the Crown as
prosecutor) to protect their process from abuse? Have they not themselves an
inescapable duty to secure fair treatment for those who come or are brought
before them?

Abuse of process may occur on its own, either because:

a) it will not be possible to give the accused a fair trial, or

b) it will offend one's sense of justice, integrity and propriety to
continue with the trial of the accused in the particular case.
Discontinuation is not a disciplinary process undertaken in order to express
one's disapproval of abuse of process; it is an expression of one's sense of
justice and propriety.(See *Conelly v DPP* 1964 AC 1254)

Lord Lowry followed the same line of approach:

"Whether the proposed trial will be an unfair trial is not the only test of
abuse of process.

" ... I consider that a court has a discretion to stay any criminal
proceedings on the ground that to try those proceedings will amount to an
abuse of its own process either

(1) because it will be impossible (usually by reason of delay) to give the
accused a fair trial or

(2) because it offends the court's sense of justice and propriety to be
asked to try the accused in the circumstances of a particular case. I agree
that *prima facie* it is the duty of a court to try a person who is charged
before it with an offence which the court has power to try and therefore
that the jurisdiction to stay must be exercised carefully and sparingly and
only for very compelling reasons. The discretion to stay is not a
disciplinary jurisdiction and, ought not to be exercised in order to express
the courts disapproval of official conduct."

The framework within which abuse of process has to be considered was set out
in *R v* *Latif* 1996 1 WLR 104. There will always be a tension between two
extreme positions in that, if a trial is discontinued, the public perception
would be that the criminal justice system condones improper conduct and
malpractice by law enforcement agencies - and if a trial is discontinued the
criminal justice system will incur the reproach that it is failing to
protect the public from serious crime.

The House of Lords in *R v. Latif* 1996 1 WLR 104 sets out the legal
framework in which the issue of abuse of process had to be considered. There
was a weakness of the extreme positions in which, if the court always
refused to stay such proceedings, the public perception would be that a
"court condones criminal conduct and malpractice by law enforcement
agencies" - and if it always stayed such proceedings it would "incur the
reproach that it is failing to protect the public from serious crime".

An assessment of abuse of process involves a balancing exercise. In
*Latif*it was clear that a fair trial was possible. The overriding
question,
however, was whether the trial ought to be discontinued "on broader
considerations of the integrity of the criminal justice system".

According to Lord Steyn, criminal proceedings may be discontinued not only
where there will be no fair trial but also where it would be contrary to the
public interest in the integrity of the criminal justice system that a trial
should take place. An infinite variety of cases could arise. General
guidance as to how the discretion to discontinue should be exercised in
particular circumstances will not be useful. But it is possible to balance
the public interest in ensuring that those charged with serious crime should
be tried against a compelling public interest which expresses a distaste and
outrage for abuse of process by law enforcers who are expected to behave
with absolute integrity, impartiality, fairness and justice. Such an
approach conveys the view that a fair and just criminal system should not
accept the attitude that the end justifies the means.

The court's discretion involves a balancing exercise. In *Latif* it was
plain that a fair trial was possible. The question was whether the trial
ought to have been stayed "on broader considerations of the integrity of the
criminal justice system."

Lord Steyn, relying upon the speeches in *R v. Horseferry Road Magistrates
Court* said:

"[They] conclusively establish that proceedings may be stayed in the
exercise of the judge's discretion not only where a fair trial is impossible
but also where it would be contrary to the public interest in the integrity
of the criminal justice system that a trial should take place. An infinite
variety of cases could arise. General guidance as to how the discretion
should be exercised in particular circumstances will not be useful. But it
is possible to say that in a case such as the present the judge must weigh
in the balance the public interest in ensuring that those that are charged
with grave crimes should be tried, and the competing public interest in not
conveying the impression that the court will accept the approach that the
end justifies the means."

The approach in *Latif* has been followed consistently. Thus:

"No single formulation will readily cover all cases, but there must be
something so gravely wrong as to make it unconscionable that a trial should
go forward..." (*R v Martin*, [1998] 1 All ER 193, at 216, per Lord Clyde).

"Something so unfair and wrong that the court should not allow a prosecutor
to proceed with what is in all respects a regular proceeding." (R v
Hui-Chi-Ming [1992] 1 AC 34, at 57B, per Lord Hope)

"An abuse may occur through the actings of the prosecution, as by misusing
or manipulating the process of the court. But it may also occur
independently of any acts or omissions of the prosecution in the conduct of
the trial itself". (*Martin* (supra), at 215, per Lord Clyde)

141. The House of Lords maintained their approach in their decision in *R v.
Martin* 1998 1 All ER 193 ... The decision is important for the consistency
of approach and range of terminology adopted to describe the abuse which
would justify a stay of proceedings:

"No single formulation will readily cover all cases, but these must be
something so gravely wrong as to make it unconscionable that a trial should
go forward, such as some fundamental disregard for basic human right or some
gross neglect of the elementary principles of fairness" (Lord Clyde at page
216 d.)

Lord Clyde also adopted what Lord Hope had said in *R v. Hui Chi-ming *(1992)
1 AC 34 (at page 57B) on the subject of abuse of process:

... "Something so unfair and wrong that the court should not allow a
prosecutor to proceed with what is in all respects a regular proceeding."

Lord Clyde added:

"An abuse may occur through the actings of the prosecution, as by misusing
or manipulating the process of the court. But it may also occur
independently of any acts or omissions of the prosecution in the conduct of
the trial itself." (p. 215 j.)

*SCA judgment on motive and transcripts quoted by Mpshe*

It is against this broad principle of abuse of process that the conduct of
Mr McCarthy must be seen and tested. The question for close consideration is
encapsulated in expressions such as " so gravely wrong", "gross neglect of
the elementary principles of fairness", "so unfair and wrong", "misusing or
manipulating the process of the court." If the conduct can be so
categorized, it would be unconscionable for the trial to continue.

It is against this evolved statement of broad principle that the
prosecution's failures and shortcomings with regard to disclosure must be
seen and tested. Those for close consideration are best summed up by such
expressions as "so gravely wrong", "gross neglect of the elementary
principles of fairness", "so unfair and wrong", "misusing or manipulating
the process of the court". If those failures can properly be so categorized,
are they such as to make it unconscionable that a re-trial should go
forward?

Using one's sense of justice and propriety as a yardstick by which
McCarthy's abuse of the process is measured, an intolerable abuse has
occurred which compels a discontinuation of the prosecution.

I find, with respect, the words of Lord Lowry, singularly attractive and
apposite as an expression of the guiding force: ‘the court's sense of
justice and propriety'. These coupled with Lord Steyn's ‘integrity of the
criminal justice system' help to set the yardstick or criterion by which the
abuse complained of is to be measured. In my judgment this is one of those
rare cases where the failures constitute an intolerable abuse which compel
intervention. Accordingly I order a permanent stay on these proceedings.

2009/4/15 Patrick Bond <pbond at mail.ngo.za>

> Fikile Mbalula
>
> OPEN LETTER TO THABO MBEKI
>
> Dear Cde Mbeki
> The events that came to pass in our country in the last week have left me
> very little option, but to address you directly on the matters at hand.
> I am certain that you are painfully aware that the release of the
> transcripts of the conversations between Ngcuka and McCarthy, not only sent
> shockwaves through the nation, but through our movement. The NPA briefing
> finally bought closure to a painful episode of your reign both as President
> of the Republic and of the ANC. An episode one hopes will never come to pass
> ever again in the history of our movement.
> It is a sad reality that the phenomenon we are dealing with today is a
> result of your actions of conniving, manipulating people and advancing
> politics of patronage. Despite the fact that you were a democratically
> elected President, you chose to run both the organisation and the country
> with a cabal which sought to commandeer everyone along your thinking and
> vision, which at times ran contrary to what the ANC stood for.
> Mandela led the ANC with distinction, and acknowledged at all times that he
> will always be subject to its authority and directives, even after he left
> the office of ANC President. His leadership at the helm of the ANC continues
> to inspire our forward momentum and his wisdom will remain a point of
> reference for generations to come.
> Mandela’s wise words, an icon of our liberation struggle, an embodiment of
> the ANC’s values, continue to reverberate to this day. At the time of your
> acceptance of your election as President of the ANC at the Mafikeng
> Conference in 1997, Madiba said, “...here are the reigns of the movement –
> protect and guard its precious legacy; defend its unity and integrity as
> committed disciples of change; pursue its popular objectives like true
> revolutionaries who seek only to serve the nation… As an ordinary member of
> the ANC I suppose that I will also have many privileges that I have been
> deprived of over the years: to be as critical as I can be; to challenge any
> signs of ‘autocracy from Shell House’; and to lobby for my preferred
> candidates from the branch level upwards… I look forward to that period when
> I will be able to wake up with the sun; to walk the hills and valleys of
> Qunu in peace and tranquillity. And I am confident that this will certainly
> be the case because, as I do so, and see the smiles on the faces of children
> which reflect the sunshine in their hearts, I will know, comrade Thabo and
> your team, that you are on the right track; you are succeeding. ”
> Having reflected on Mandela’s words, I am certain that you either did not
> hear his wise words, or you deliberately elected not to take heed of them.
> His challenge to you to defend the unity and integrity of the ANC was
> central to his message and should have been a beacon in your leadership of
> the ANC. The smiles on the faces of the children are yet to reflect the
> sunshine in their hearts, because that moment is yet to come.
> Mandela handed you a vibrant and united ANC, yet at the twilight of your
> Presidency, you chose to betray everything that Mandela and those that came
> before him stood for, struggled for, and laid down their lives for. In a
> moment of intoxication with
> power, you forgot Madiba’s wise counsel and allowed our glorious movement
> to stumble on the edge of an abyss.
> When your cabal was finally defeated in Polokwane because of its actions
> and underhanded tactics at securing a third term for you as a President of
> the ANC, they went into an elaborate conspiratorial mode, famously dubbed
> “the fightback strategy,” which clearly carried your blessing. It is one’s
> considered view that it was the failure of this strategy that led you and
> your lieutenants to spawn the so-called Congress of the People as a vehicle
> to fight the ANC and undermine its hegemony and legacy.
> It is a sad day in our nation that one has to allude that your legacy, at
> its pinnacle, has only brought us shame and disgrace, overshadowing what
> would have otherwise been a commendable political career. It is not my place
> to pass judgement, but am convinced that history will judge you very harshly
> for what you have come to represent in the latter day.
> I find it rather instructive that in your reaction to the release of the
> Ngcuka/McCarthy transcripts you chose to pose the question as to how did the
> tapes come to be in the possession of the ANC President’s lawyers. The more
> fundamental issue which I would have expected would be your primary
> preoccupation would be how did you fail the nation so badly such that the
> chain of events over the last nine years landed us in the position we find
> ourselves in today. How did the state apparatus become so embroiled in
> partisan politics that sought to rip our movement apart such that not even
> the highest office in the land had the political will to put brakes on the
> rot that was settling in?
> While the movement may take collective responsibility for the actions of
> our government as a ruling party, however, my heart bleeds that the
> relationship of trust the ANC conferred on you in Mafikeng was broken. The
> mantra of your Presidency, “the rule of law” was betrayed in the most vulgar
> way possible.
> •
> When spy allegations were levelled at Bulelani Ngcuka, then National
> Director of Public Prosecutions, you were swift in your appointment of the
> Heffer Commission to probe those allegations as an attempt to protect him;
> •
> When the infamous off-the-record briefings conducted by Bulelani Ngcuka
> came to light, where Ngcuka is alleged to have made libellous remarks about
> Jacob Zuma, who was the Deputy President of the Republic at the time, you
> conveniently turned a blind eye and failed to act;
> •
> When Bulelani Ngcuka, flanked by then Minister of Justice, Pennuel Maduna
> addressed a media briefing wherein he suggested that Cde Zuma had a case to
> answer, but he will not prosecute him, you once again conveniently failed to
> act on what was a blatant violation of Cde Zuma’s rights;
> •
> You then proceeded to appoint Phumzile Mlambo-Ngcuka as Deputy President of
> the Republic as a reward to the loyalty of the Ngcukas;
> •
> When the Public Protector pronounced on the violation of Cde Zuma’s rights,
> his findings were met with scorn, and again, no action was forthcoming on
> your part;
> •
> When the National Intelligence Agency expressed alarm about the unlawful
> activities of the Scorpions, once again you did nothing;
> •
> When the Browse Mole report came to light, which was produced by the
> Scorpions, you were quick to dismiss it as work of counter-revolutionary
> forces, and proceeded to ignore the recommendations of Parliament’s Joint
> Standing Committee on Intelligence. In an interesting twist or irony,
> McCarthy, who was the head of the DSO at the time was rewarded with a
> handsome golden handshake and a recommendation for a high ranking job with
> the World Bank, at a time when he and those who were responsible for the
> Browse Mole report should have been under investigation;
> •
> You did not hesitate to destroy a relationship that spanned decades between
> yourself and Billy Masetlha when he raised concerns about the allegedly hoax
> emails that were making rounds, and you defined your relationship with him
> as irretrievable.
> •
> You continued to protect Jackie Selebi, the National Police Commissioner
> and did not hesitate to suspend Vusi Pikoli, the National Director of Public
> Prosecutions when he sought to arrest Selebi, for reasons known only to
> yourself;
> •
> You dismissed Cde Zuma, then Deputy President of the Republic, on the basis
> of inferences in the Shabir Shaik trial. Interestingly, you were quick to
> cry foul when Justice Nicholson made far reaching findings in his judgements
> and drew inferences on your perceived interference with due processes of
> law;
> •
> You failed to take the nation into confidence and confirm that you were the
> author of the now famous letter to the Standing Committee on Public Accounts
> (SCOPA) on the arms deal, a letter which was a central piece of evidence at
> the Shaik trial;
> •
> You conducted briefings to ANC structures, religious community, opposition
> parties (particularly the DA) on how corrupt Cde Zuma was, in an attempt to
> garner public support and sympathy, and whereby you arrogated yourself the
> role of being a judge in Cde Zuma’s persecution;
> •
> You were highly implicated as a central player in the compilation of a
> dossier which sought to defame Cde Zuma in the run-up to Polokwane, which
> was distributed among ANC delegates at conference;
> •
> You failed to engage the leadership of the ANC in a face to face
> engagement, and you reduced your relationship with Cde Zuma to an exchange
> of letters, whose contents you leaked to Terror Lekota;
> •
> You flatly refused to campaign for the ANC, despite your assertion that you
> remain a loyal member of the ANC, and demanded that a letter be written to
> you in this regard. It was the first time ever that a cadre of the ANC had
> to be written a letter in order for them to campaign for the ANC. Not even
> Mandela ever made such a demand on the ANC. Such practice is foreign to the
> tried and tested traditions of the ANC and can best be described as
> anti-ANC;
> It is therefore my considered view that you left the state apparatus in
> absolute disarray and the state machinery completely paralysed.
> It is equally interesting that you believe the Inspector-General will save
> the day in what has become public humiliation of Ngcuka and McCarthy. The
> fundamental question that must preoccupy the Inspector-General is not how
> the tapes found their way to the ANC President’s lawyers, but rather how
> deep did this conspiracy ran and to ensure that relevant organs of state act
> swiftly to bring the perpetrators to book.
> What happened to the values of the ANC, which at some point in your
> political career embodies and taught others? What happened to the ethos that
> says the ANC is bigger than all of us, we are but humble servants of this
> revolutionary movement? What happened to the pursuit of the founding ideals
> of the ANC, which the giants of our revolution who include Cdes
> Langalibalele Dube, Sol Plaatjie, Walter Sisulu, Moses Kotane, Oliver Tambo,
> Nelson Mandela and many others personified?
> There remains little doubt that the establishment of COPE has your
> blessings and you continue to encourage them to swear by your name because
> you do not believe that the ANC can advance the age of hope under the
> stewardship of Cde Zuma, and that it will survive without you.
> I doubt if today you were president, this conspiracy that has come to light
> would have been uncovered.
> Fikile Mbalula
> HEAD OF ORGANISING AND CAMPAIGNS AND MEMBER OF THE ANC NEC AND NWC
> Writing in his personal capacity
>
> ***
>
> Business Day
>
> 15 April 2009
> DA says Mpshe used Hong Kong judgment in support of his Zuma ruling
> ERNEST MABUZA
>
>
> Legal Affairs Correspondent
>
> DEMOCRATIC Alliance (DA) researcher James Myburgh has suggested that acting
> national director of public prosecutions Mokotedi Mpshe relied on a 2002
> Hong Kong judgment — later overturned on appeal — to drop the corruption
> case against African National Congress president Jacob Zuma.
>
> Myburgh, editor of Politicsweb, wrote a lengthy column for the website
> yesterday. He suggests that the DA may have a case, based on his
> interpretation of Mpshe’s statement.
>
> In his statement last Monday, Mpshe quoted extracts from damning recordings
> of various telephone conversations between former Scorpions boss Leonard
> McCarthy and others in December 2007 during which the case against Zuma was
> discussed. Mpshe said it was against this broad principle of abuse of
> process that McCarthy’s conduct must be seen and tested.
>
> Mpshe said: “The question for close consideration is encapsulated in
> expressions such as ‘so gravely wrong’, ‘gross neglect of the elementary
> principles of fairness’, ‘so unfair and wrong’, ‘misusing or manipulating
> the process of the court’.” Mpshe said if the conduct could be so
> categorised, it would be unconscionable for the trial to continue.
>
> Myburgh wrote that it was quite remarkable how Mpshe’s opinion of McCarthy
> so closely resembled that of Justice Conrad Seagrott’s opinion of the
> prosecution in his case in the Hong Kong High Court in 2002.
>
> Seagrott had said: “It is against this evolved statement of broad principle
> that the prosecution’s failures and shortcomings with regard to disclosure
> must be seen and tested. Those for close consideration are best summed up by
> such expressions as ‘so gravely wrong’, ‘gross neglect of the elementary
> principles of fairness’, ‘so unfair and wrong’, ‘misusing or manipulating
> the process of the court’.” Seagrott had asked if those failures could
> properly be so categorised, whether they were such as to make it
> unconscionable that a re-trial should go forward.
>
> Myburgh said Seagrott and Mpshe’s conclusions were also rather similar,
> noting further that the Seagrott ruling was overturned on appeal. Myburgh
> said in its judgment the Court of Final Appeal had noted that the court must
> take account “of the public expectation that persons charged with serious
> criminal offences will be brought to trial unless there is some powerful
> reason for not doing so”.
>
> A senior NPA official, who did not want to be named, said Mpshe’s decision
> to drop the charges was provided for in law.
>
>
> mabuzae at bdfm.co.za
>
> ***
>
> NPA boss plagiarised judge in Zuma ruling
> 15 April 2009, 06:55
>
> Red-faced officials have admitted that acting National Prosecuting
> Authority head Mokotedi Mpshe plagiarised a Hong Kong judge in his
> explanation of why he was dropping all charges against ANC President Jacob
> Zuma.
>
> But NPA spokesperson Tlali Tlali on Tuesday insisted that Mpshe's failure
> to acknowledge his borrowing of Hong Kong High Court Justice Conrad
> Seagroatt's December 2002 ruling - in his reasoning on the Zuma decision -
> was an "innocent oversight".
>
> "We are recognising that what we said was based on that judgment and we are
> in no way attempting to pass that ruling off as our own. We regret the
> oversight, but it in no way detracts from the decision that advocate Mpshe
> reached," he said.
>
> Tlali further pointed out that Mpshe was fully aware that his statement on
> the Zuma decision would receive international media attention, and he would
> therefore not have deliberately plagiarised from any material.
>
> Mpshe, who is on leave, was not available for comment on why he had relied
> so heavily on Justice Seagroatt's decision, which was ultimately overturned
> on appeal.
>
> James Myburgh, the editor of the website politicsweb.co.za, on Tuesday
> revealed that large tracts of Mpshe's lengthy explanation were word-for-word
> copies of a judgment handed down by Justice Seagroatt.
>
> In words echoed by Mpshe in his reasoning on the Zuma decision, Justice
> Seagroatt had said: "It is against this evolved statement of broad principle
> that the prosecution's failures and shortcomings with regard to disclosure
> must be seen and tested. Those for close consideration are best summed up by
> such expressions as 'so gravely wrong', 'gross neglect of the elementary
> principles of fairness', 'so unfair and wrong', and 'misusing or
> manipulating the process of the court'. If those failures can properly be so
> categorised, are they such as to make it unconscionable that a retrial
> should go forward?"
>
> Myburgh said: "It rather strikingly cites all the British Commonwealth
> judgments that Mpshe's statement referred to. Even more strikingly, the
> phrases quoted are almost all the same as well - give or take some
> self-serving truncation and rewriting by the NPA."
>
> This article was originally published on page 1 of The Star on April 15,
> 2009
>
>
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