[DEBATE] : (Fwd) Zuma screwed? Today's judgement

[Patrick Bond]

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT



Case No: 573/08



NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS Appellant

and


JACOB GEDLEYIHLEKISA ZUMA Respondent


(THABO MVUYELWA MBEKI and GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA 
intervening)


Neutral citation: National Director of Public Prosecutions v Zuma 
(573/08) [2009] ZASCA 1 (12 Jan 2009)

Coram: HARMS DP, FARLAM, PONNAN, MAYA AND CACHALIA JJA
Heard: 28 NOVEMBER 2008
Delivered: 12 JANUARY 2009
Updated:
Summary: (1) Criminal procedure – setting aside of indictment – s 179 of 
the Constitution – consultation by National Director of Public 
Prosecutions when reviewing a prosecutorial decision with accused. (2) 
Civil procedure – principles of deciding factual issues in motion 
proceedings restated. (3) Judiciary – the limits of judicial 
decision-making restated.





ORDER



On appeal from: High Court, Pietermaritzburg (Nicholson J sitting as 
court of first instance).



A The appeal is upheld with costs including the costs of three counsel.
B Paragraphs 1 to 4 of the order of the court below are set aside and 
replaced with the following:
‘1 The application is dismissed.
2 The applicant is to pay the respondent’s costs of suit including those 
consequent upon the employment of three counsel.
3 On the respondent’s application to strike out, the applicant is 
ordered to pay the costs on the attorney and client scale.
4 The applicant’s application to strike out is dismissed with costs on 
the attorney and client scale.’
C The application to intervene is dismissed.






JUDGMENT



HARMS DP (FARLAM, PONNAN, MAYA and CACHALIA JJA concurring):


INTRODUCTION

[1] This is an appeal against a judgment of Nicholson J, in which he set 
aside a decision by the National Director of Public Prosecutions (the 
NDPP) to indict the respondent, Mr Jacob G Zuma. The appeal by the NDPP 
is with the leave of the court below. Mr Thabo M Mbeki (until recently 
the President of the country) and the Government of the RSA sought leave 
to intervene in the appeal on the ground that they have an interest in 
the appeal since many findings of the court below impinged on them 
negatively and they wish to have the record set straight.

[2] The litigation between the NDPP and Mr Zuma has a long and troubled 
history and the law reports are replete with judgments dealing with the 
matter. It is accordingly unnecessary to say much by way of introduction 
and a brief summary will suffice.

[3] Mr Zuma was appointed as Deputy President of the RSA on 19 June 
1999. He was, however, dismissed by Mr Mbeki during June 2005. During 
December 2007, he became the president of the governing political party, 
the African National Congress (the ANC), at the expense of Mr Mbeki, the 
incumbent and only other candidate for that position. It is common 
knowledge that subsequent to the judgment of the court below Mr Mbeki 
resigned as President of the country and that Mr Zuma is said to be the 
ANC’s candidate for that post after the 2009 general election. Mr Zuma 
regards the indictment as an impediment to his political future and the 
present case is an attempt by him to seek, on procedural grounds, 
closure of the criminal proceedings.

[4] On 23 August 2003, Mr Bulelani Ngcuka, the then NDPP, announced his 
intention to indict a certain Mr Schabir Shaik on two counts of 
corruption, but stated that he would not indict Mr Zuma, who was said to 
have been the recipient of alleged corrupt payments from Mr Shaik. I 
shall revert to the detail of the announcement, to which I shall refer 
as the Ngcuka decision. Mr Shaik was convicted and sentenced during June 
2005, and Mr Zuma, who was implicated in the judgment, was dismissed by 
Mr Mbeki from the position of Deputy President as a consequence, not (as 
Mr Mbeki said) because he was guilty but (as Mr Mbeki implied) on the 
theory that Caesar’s wife should be above reproach.

[5] A few days later, on 20 June, the newly appointed NDPP, Mr Vusi 
Pikoli, announced his decision to indict Mr Zuma. (This decision will be 
referred to as the Pikoli decision.) The matter came before Msimang J on 
31 July 2006 for trial on two corruption counts which mirrored the two 
Shaik corruption counts. The prosecution applied for a postponement to 
complete its investigations and finalise the indictment. Msimang J 
refused the postponement and called on the prosecution to proceed with 
the trial. When the prosecution indicated that it was not ready to do 
so, he struck the matter from the roll.

[6] Mr Pikoli had in the interim been suspended by Mr Mbeki on an 
unrelated matter, and Mr Mokotedi Joseph Mpshe, the acting NDPP, decided 
on 27 December 2007 once again to indict Mr Zuma (herein called the 
Mpshe decision). That decision was followed by an indictment of 87 pages 
with 18 main counts of racketeering, corruption, money laundering, tax 
evasion and fraud. Much was based on the same subject matter that was 
dealt with in the Shaik trial but, according to the NDPP, the facts and 
circumstances differed materially because the evidence against Mr Zuma 
had become more compelling and the legal impediments to charging him had 
been reduced.

[7] In the application, which is the subject of this appeal, Mr Zuma 
sought an order declaring that both the Pikoli and the Mpshe decisions 
were invalid and, consequently, they were to be set aside. Nicholson J 
obliged by setting aside the latter decision (the former having lapsed). 
This brought the prosecution to an end – at least for the time being.

THE SCOPE OF THE CASE

[8] It would be naïve to pretend that we are oblivious to the fact that 
Nicholson J’s judgment has had far-reaching political consequences and 
that there may be an attempt to employ this judgment to score political 
points. It is accordingly necessary to state at the outset what the case 
is about as opposed to what it is not about. An applicant is required to 
set out his case in the founding affidavit. This Mr Zuma did. He 
asserted that his case for the setting aside of the two decisions to 
prosecute him was premised on two bases, something he confirmed in his 
replying affidavit.
[9] He relied in the main on s 179(5)(d) of the Constitution, which s 
22(2)(c) of the National Prosecuting Authority Act 32 of 1998 (the NPA 
Act) repeats. It provides in summary that the NDPP may ‘review’ a 
decision to prosecute or not to prosecute, after consulting the 
‘relevant’ Director of Public Prosecutions (the DPP) and after taking 
representations from the accused, the complainant and any other relevant 
person. His case in this regard was simple: the Pikoli and Mpshe 
decisions to prosecute amounted in each instance to a review of the 
Ngcuka decision not to prosecute him; they were made without his having 
been invited to make representations in fulfilment of a constitutional 
requirement and they were, consequently, invalid. It matters not that he 
was able, if he so desired, to make representations – his complaint was 
that he had to be invited to make them.

[10] The second and alternative ground on which he relied was that he 
had a legitimate expectation to be invited to make representations 
before any decision was taken to change the Ngcuka decision. In this 
regard he relied principally on s 33 of the Constitution, which deals 
with just administrative action. The expectation, according to the 
founding affidavit, arose from the content of Mr Ngcuka’s press release 
when he announced his decision not to prosecute him and from some other 
non-contentious facts that will be detailed in due course.

[11] From this it is apparent that Mr Zuma’s case depended, as far as 
the first ground is concerned, on an interpretation of the Constitution. 
In regard to the second it depended in essence on whether s 33 of the 
Constitution applied and, if so, on the meaning of the Ngcuka press 
statement. (The ultimate argument was somewhat different but does not 
affect the general purport of the point now under discussion.) These are 
all legal issues based on common cause facts.

[12] Mr Zuma made it abundantly clear that he did not wish to impugn the 
decisions themselves, and that his application was not concerned with 
the reasons and motives for the decisions: it related only to the 
procedural requirements for making them. He implied that he might attack 
the merits of the decisions in separate proceedings. In spite of this 
explicit statement of intent, Mr Zuma introduced a large number of facts 
that related to the merits of the decisions. The NDPP contended that 
they were irrelevant.

[13] It follows from this that, as the trial judge recognised, 
‘political meddling’ was not an issue that had to be determined (para 
229 of his judgment). Nevertheless, a substantial part of his judgment 
dealt with this question; and in the course of this discussion he 
changed the rules of the game, took his eyes off the ball and red-carded 
not only players but also spectators. Lest his judgment be considered 
authoritative it will be necessary to deal with these matters.

[14] However, it must be understood that this aspect of the judgment is 
not about the guilt or otherwise of Mr Zuma or whether the decision to 
prosecute him was justified. It is even less about who should be the 
president of the ANC; whether the decision of the ANC to ask Mr Mbeki to 
resign was warranted; or who should be the ANC’s candidate for President 
in 2009. More particularly, this aspect of the judgment is not about 
whether there was political meddling in the decision-making process. It 
is about whether the findings relating to political meddling were 
appropriate or could be justified on the papers.

THE JUDICIAL FUNCTION

[15] It is crucial to provide an exposition of the functions of a 
judicial officer because, for reasons that are impossible to fathom, the 
court below failed to adhere to some basic tenets, in particular that in 
exercising the judicial function judges are themselves constrained by 
the law. The underlying theme of the court’s judgment was that the 
judiciary is independent; that judges are no respecters of persons; and 
that they stand between the subject and any attempted encroachments on 
liberties by the executive (para 161-162). This commendable approach was 
unfortunately subverted by a failure to confine the judgment to the 
issues before the court; by deciding matters that were not germane or 
relevant; by creating new factual issues; by making gratuitous findings 
against persons who were not called upon to defend themselves; by 
failing to distinguish between allegation, fact and suspicion; and by 
transgressing the proper boundaries between judicial, executive and 
legislative functions.

[16] Judges as members of civil society are entitled to hold views about 
issues of the day and they may express their views provided they do not 
compromise their judicial office. But they are not entitled to inject 
their personal views into judgments or express their political 
preferences. To illustrate the point I intend to refer to some instances 
where the court below in my view overstepped the limits of its authority.

[17] The ‘Society for the Protection of our Constitution’ sought to be 
admitted as amicus curiae, asking for an order which the court below 
charitably interpreted as one for the appointment of a commission of 
inquiry into the alleged violation of Mr Zuma’s constitutional rights. 
The court found, quite rightly, that it was beyond its competence to 
make such an order, but it then proceeded to add at length that a 
commission of inquiry into the so-called arms deal, which gave rise to 
some of the criminal allegations against Mr Zuma, should be appointed 
‘to rid our land of this cancer that is devouring the body politic’ 
(para 33). Whether or not one agrees with these sentiments is beside the 
point. The point is that those personal sentiments concerning a 
political decision were, in the context of the judgment, unwarranted.

[18] Then there is its criticism concerning two of Mr Mbeki’s decisions. 
The first concerns his dismissal of Mr Zuma as Deputy President in terms 
of s 91(2) of the Constitution (para 155-158). The second relates to his 
decision to stand for re-election as president of the ANC with the 
knowledge that he could not serve another term as President of the 
country (para 171-173). The propriety and legitimacy of Mr Mbeki’s 
decisions were not issues in the case and he was never called upon to 
justify them. These matters are also not matters of law – they relate to 
purely political questions and, once again, whether or not one agrees 
with the learned judge’s sentiments is of no consequence: the findings 
were gratuitous.

[19] The independence of the judiciary depends on the judiciary’s 
respect for the limits of its powers. Even if, in the words of the 
learned judge, the judiciary forms a ‘secular priesthood’ (para 161) 
this does not mean that it is entitled to pontificate or be judgemental 
especially about those who have not been called upon to defend 
themselves – as said, its function is to adjudicate the issues between 
the parties to the litigation and not extraneous issues.

JUDGING FACTS IN MOTION PROCEEDINGS

[20] I have already mentioned that the issues in this case are primarily 
legal and based on common cause facts but that is not how the court 
below approached the case. Instead it applied a novel approach to motion 
proceedings which, if left undisturbed, may serve as a dangerous precedent.

[21] Benevolently interpreted it would appear that the court, in the 
context of a striking out application brought by the NDPP, sought to 
determine whether the NDPP was influenced by the executive in deciding 
to prosecute.

[22] The rule of court in question states that a court may strike out 
allegations from an affidavit that are ‘scandalous, vexatious or 
irrelevant’ provided the objecting party will be prejudiced if the 
allegations are not struck out (Uniform Rule r 6(15)). At this juncture 
it suffices to deal with the objection to allegations that are said to 
be irrelevant. The passages in Mr Zuma’s affidavit to which the NDPP 
objected dealt in the main with his allegations concerning a political 
conspiracy to prosecute him.

[23] The test for irrelevance is whether the allegations do not apply to 
the matter in hand or do not contribute one way or another to a decision 
of that matter. Inadmissible evidence is by its very nature irrelevant. 
Mr Zuma said that he introduced the allegations to show that the 
decision not to ask for his representations was deliberate and 
politically motivated. Whether the failure to provide him with a hearing 
was deliberate or politically motivated has nothing to do with his 
causes of action. He was, as a matter of law, either entitled to a 
hearing or he was not. If he was entitled to one, the reason for the 
failure to afford him one is completely immaterial.

[24] The court below did not decide whether the allegations were 
relevant or not. Instead it sought to determine whether the allegations 
were ‘offensive because they insinuate that there is political meddling’ 
(para 41). To do that, it looked at the ‘merits’ (para 43), that is, 
whether there was merit in the allegations (para 238). The court 
accordingly analysed the allegations (and some of its own suppositions) 
to determine what factual ‘inference’ it could draw (para 191); what 
‘the most plausible inference’ was (para 191, 206); and what ‘seemed’ to 
have happened (para 196, 209). It found that it ‘was not convinced that 
[Mr Zuma] was incorrect’ (para 216), and that political meddling could 
not be excluded (para 238).

[25] The court erred in its approach to striking out applications. It is 
correct that relevance has to be tested with reference to the merits of 
the case but that does not mean that relevance depends on the factual 
merit of the impugned allegations. Whether they are true or not is of no 
moment; their relevance to the merits of the case is what is of 
consequence. As mentioned, the court did not consider this question.

[26] Motion proceedings, unless concerned with interim relief, are all 
about the resolution of legal issues based on common cause facts. Unless 
the circumstances are special they cannot be used to resolve factual 
issues because they are not designed to determine probabilities. It is 
well established under the Plascon-Evans rule that where in motion 
proceedings disputes of fact arise on the affidavits, a final order can 
be granted only if the facts averred in the applicant's (Mr Zuma’s) 
affidavits, which have been admitted by the respondent (the NDPP), 
together with the facts alleged by the latter, justify such order. It 
may be different if the respondent’s version consists of bald or 
uncreditworthy denials, raises fictitious disputes of fact, is palpably 
implausible, far-fetched or so clearly untenable that the court is 
justified in rejecting them merely on the papers. The court below did 
not have regard to these propositions and instead decided the case on 
probabilities without rejecting the NDPP’s version.

[27] The court below imposed an onus on the NDPP to prove a negative. 
This appears from the finding that it ‘was not convinced that [Mr Zuma] 
was incorrect’ in relation to political meddling (para 216). It reasoned 
that the question whether there had been political meddling fell within 
the peculiar knowledge of the NDPP and was difficult for Mr Zuma to 
prove; and so, it held, less evidence would suffice to establish a prima 
facie case (para 168-169). This rule of evidence, namely that if the 
facts are peculiarly within the knowledge of a defendant the plaintiff 
needs less evidence to establish a prima facie case, applies to trials. 
In motion proceedings the question of onus does not arise and the 
approach set out in the preceding paragraph governs irrespective of 
where the legal or evidential onus lies. In applying the ‘rule’ the 
court omitted to determine whether the NDPP had failed to adduce 
evidence on the particular issues; it used the ‘rule’ in spite of 
evidence to the contrary; and it did so in instances where no answer was 
called for because the allegations were either not incorporated into the 
founding affidavit or were inadmissible. Finally, the court failed to 
have regard to another principle, namely that the more serious the 
allegation or its consequences, the stronger must be the evidence before 
a court will find the allegation established.

INDEPENDENCE OF THE NPA

[28] Although it is generally accepted that any prosecution authority 
ought to be free from executive or political control, this was and is 
not necessarily the norm in Anglo-American countries. It depends on the 
position of the Attorney-General who, in many countries, is a political 
appointee – often at ministerial level. Nevertheless, an 
Attorney-General is required by convention to make prosecutorial 
decisions without regard to political considerations and may not subject 
his discretionary authority to that of government. He is also not 
responsible to government to justify the exercise of his discretion 
because this political office has judicial attributes.

[29] Locally the pre-Union position was exemplified by Ordinance 1 of 
1903 (T), which provided that the right and power of prosecution was 
‘absolutely under [the Attorney-General’s] own management and control’ 
(s 6). At the time the Attorney-General was a cabinet minister. The 
South Africa Act of 1909 had a similar provision (s 139) but the 
difference was that since Union Attorneys-General were civil servants. 
The position changed in 1926 when all powers, authorities and functions 
relating to the prosecution of crimes and offences were vested in the 
Minister. However, in terms of a notice published at the time in the 
Government Gazette the decision to prosecute or not to prosecute 
remained with the Attorneys-General and the Minister exercised an appeal 
or review function only. As from 1935, Attorneys-General had to exercise 
their authority and perform their functions under the Criminal Procedure 
Act subject to the control and directions of the Minister who could 
reverse any decision. The convention, apparently, remained as set out in 
the mentioned government notice.

[30] The independence of the Attorneys-General’s decision-making 
concerning prosecutions was reinstated by the Attorney-General Act 92 of 
1992 although the Minister had to co-ordinate their functions and could 
request them for information or a report on any matter, and they had to 
submit annual reports to him (s 5). The interim Constitution also 
recognised that the authority to institute criminal proceedings vested 
in the Attorneys-General.

[31] Section 179 of the Constitution creates a single national 
prosecuting authority (the NPA) consisting of a National Director, who 
is head of the prosecuting authority and a political appointee, and also 
DPPs and prosecutors. The NPA has the power to institute criminal 
proceedings on behalf of the State and to carry out any necessary 
functions incidental thereto. Although national legislation must ensure 
that the NPA exercises its functions without fear, favour or prejudice, 
the Minister must exercise final responsibility over the NPA and the 
NDPP must determine prosecution policy with the concurrence of the Minister.

[32] Accordingly, the Constitution on the one hand vests the 
prosecutorial responsibility in the NPA while, on the other, it provides 
that the Minister must exercise final responsibility over it. These 
provisions may appear to conflict but, as the Namibian Supreme Court 
held in relation to comparable provisions in its Constitution, they are 
not incompatible. It held (I am using terms that conform with our 
Constitution) that although the Minister may not instruct the NPA to 
prosecute or to decline to prosecute or to terminate a pending 
prosecution, the Minister is entitled to be kept informed in respect of 
all prosecutions initiated or to be initiated which might arouse public 
interest or involve important aspects of legal or prosecutorial authority.

[33] The NPA Act, the constitutionality of which is not under attack, 
shows that the court below overstated the position when it held without 
qualification that ‘there should be no relationship [between the NPA 
and] the Minister of Justice – certainly insofar as his decisions to 
prosecute or not to prosecute anybody from the Commissioner of Police 
downwards’ (para 207). (To the extent that the statement implies that 
there could be a relationship from the Commissioner of Police upwards it 
was probably unintended.)

[34] The Act requires members of the prosecuting authority to serve 
‘impartially’ and exercise, carry out or perform their powers, duties 
and functions ‘in good faith and without fear, favour or prejudice’ and 
subject only to the Constitution and the law (s 32(1)(a)). It further 
provides that no one may interfere ‘improperly’ with the NPA in the 
performance of its duties and functions (s 32(1)(b)). (‘Improperly’ may 
be tautologous because interference usually implies some or other 
impropriety.) It reaffirms that the Minister must exercise final 
responsibility over the NPA and obliges the NDPP, at the request of the 
Minister, to furnish the latter with information or a report with regard 
to any case and to provide the Minister with reasons for any decision 
taken (s 33(2)). More directly in point is s 22(2)(c), which is the 
counterpart of s 179(5)(d) of the Constitution and deals with the NDPP’s 
review function, read with s 22(4)(a)(iii). The latter provision states 
that, in exercising the review power to prosecute or not to prosecute, 
the NDPP may advise the Minister ‘on all matters relating to the 
administration of justice’, which is hardly compatible with the notion 
that there may be no relationship between them.

[35] The court below began its discussion of the legal issues implying 
in general terms that a decision to prosecute is an administrative 
action to which the audi principle (with its offspring the doctrine of 
legitimate expectation) applies (para 47-53). This has never been the 
law and, as the Constitutional Court held, it is not the law under the 
Constitution and the Promotion of Administrative Justice Act 3 of 2000 
(PAJA). Such a decision is not susceptible to review. There are policy 
reasons for this that need not be discussed because the 
constitutionality of the provision of PAJA, which excludes a review of a 
decision to prosecute, is not under attack.

[36] This does not mean, and it was never argued otherwise, that a 
failure to comply with a constitutional or statutory requirement to hear 
a party is not justiciable under the principle of legality irrespective 
of whether or not PAJA applies.

[37] The court dealt at length with the non-contentious principle that 
the NPA must not be led by political considerations and that ministerial 
responsibility over the NPA does not imply a right to interfere with a 
decision to prosecute (para 88 et seq). This, however, does need some 
contextualisation. A prosecution is not wrongful merely because it is 
brought for an improper purpose. It will only be wrongful if, in 
addition, reasonable and probable grounds for prosecuting are absent, 
something not alleged by Mr Zuma and which in any event can only be 
determined once criminal proceedings have been concluded. The motive 
behind the prosecution is irrelevant because, as Schreiner JA said in 
connection with arrests, the best motive does not cure an otherwise 
illegal arrest and the worst motive does not render an otherwise legal 
arrest illegal. The same applies to prosecutions.

[38] This does not, however, mean that the prosecution may use its 
powers for ‘ulterior purposes’. To do so would breach the principle of 
legality. The facts in Highstead Entertainment (Pty) Ltd t/a ‘The Club’ 
v Minister of Law and Order illustrate and explain the point. The police 
had confiscated machines belonging to Highstead for the purpose of 
charging it with gambling offences. They were intent on confiscating 
further machines. The object was not to use them as exhibits – they had 
enough exhibits already – but to put Highstead out of business. In other 
words, the confiscation had nothing to do with the intended prosecution 
and the power to confiscate was accordingly used for a purpose not 
authorised by the statute. This is what ‘ulterior purpose’ in this 
context means. That is not the case before us. In the absence of 
evidence that the prosecution of Mr Zuma was not intended to obtain a 
conviction the reliance on this line of authority is misplaced as was 
the focus on motive.

[39] Courts have also interfered with decisions to prosecute in 
circumstances where the prosecuting authorities had given an undertaking 
not to prosecute or had made a representation to that effect in exchange 
for a plea or for co-operation. The prosecuting authority has been kept 
to its bargain. Interesting as the examples may be, they have no bearing 
on the facts before us.

THE NGCUKA DECISION

[40] I have already mentioned that during August 2003 Mr Ngcuka, in his 
capacity as NDPP, decided to prosecute Mr Shaik but not to prosecute Mr 
Zuma. He announced this decision at a press conference in the presence 
of the then Minister, Dr Penuel Maduna. In the press release Mr Ngcuka 
made two statements that are of consequence to Mr Zuma’s case. The one 
deals with the legitimate expectation argument, to which I shall revert 
under another heading. The second statement was this:

‘After careful consideration in which we looked at the evidence and the 
facts dispassionately, we have concluded that, whilst there is a prima 
facie case of corruption against the Deputy President, our prospects of 
success are not strong enough. That means that we are not sure if we 
have a winnable case.’

Mr Zuma expressed his dissatisfaction with this statement because, he 
said, it carried the gratuitous and offensive imputation, which he had 
to endure, that he was corrupt but had covered his tracks. Apart from 
this, Mr Zuma, as appears from his founding affidavit, was quite pleased 
with the announcement. Indeed, in his replying affidavit he made it 
clear that it was common cause that ‘after extensive and thorough 
investigations’, Mr Ngcuka and his deputy, Mr McCarthy, ‘took a 
carefully considered decision’ not to prosecute him.

[41] It is important to stress that Mr Zuma did not allege that this 
decision was politically motivated; he did not say that it was 
unjustified; and he did not allege that Dr Maduna had acted improperly 
by being present at the press conference. In spite of this, Nicholson J 
saw it as his duty to determine whether the decision was made from fear 
or favour (para 174) and said (para 175):

‘At first blush a decision not to prosecute the Deputy President of the 
country appears to be as a favour to the second highest ranking 
politician in the country. The applicant denies this and puts quite a 
different slant on the objective. He says it was all part of a political 
agenda that had as its objective the favouring of President Mbeki in his 
quest for a further term of office as ANC President.’

[42] The statements in the second and third sentences are puzzling. Mr 
Zuma was never called upon to deal with the supposition that the 
decision not to prosecute was a favour to him and, accordingly, he never 
sought to deny it. And although Mr Zuma perceived a political plot 
behind the Pikoli and Mpshe decisions, he did not say that the Ngcuka 
decision was part of the plot. The trial judge’s later statement that Mr 
Zuma maintained that there was a strategy to prosecute Mr Shaik and, 
when he was convicted, to dismiss him as Deputy President, does likewise 
not appear from the papers (para 196).

[43] Nicholson J also attacked the merits of the Ngcuka decision, 
finding that it was ‘bizarre’ and that it brought justice into disrepute 
(para 150 and 155). The merits of the decision were, once again, not 
before him and were irrelevant and in reaching this conclusion he in any 
event took no note of the NDPP’s explanation. It is correct that if 
there is prima facie evidence of a crime in the sense of reasonable 
prospects of success the NPA should, in the absence of other germane 
considerations, initiate a prosecution. But the term ‘prima facie 
evidence’ has more than one connotation and may mean, as Mr Ngcuka 
conveyed, that there may be evidence of the commission of a crime which 
is nonetheless insufficient to satisfy the threshold of a reasonable 
prospect of success, especially if regard is had to the burden of proof 
in a criminal case. Although corruption involves two persons, the fact 
that the one may be guilty does not mean that the other is also guilty 
because the intention of each party must be decided separately, and 
evidence that may be admissible against the one may not be admissible 
against the other. In other words, the fact that Mr Shaik was found 
guilty does not mean that Mr Zuma is guilty. Having said all of this, I 
must emphasise that I am not holding that the Ngcuka decision was right, 
simply because I do not have the material to judge what is in the 
context of this case a non-issue. Instead, I am simply holding that the 
court below had erred in this regard.

[44] I have already mentioned that Mr Zuma never accused Dr Maduna of 
having acted improperly, whether in connection with the Ngcuka decision 
or otherwise. Nicholson J, again, thought otherwise and without hearing 
Dr Maduna concluded that he had done so in attending the press 
conference. From this he deduced that there was a suggestion of 
political interference and then held that Dr Maduna played a ‘not 
insignificant part’ in planning the ‘strategy’ not to prosecute in order 
to have Mr Zuma dismissed as Deputy President on the conviction of Mr 
Shaik, and that this constituted a serious criminal offence (para 196). 
Dr Maduna’s supposed machinations around the Ngcuka decision were then 
extrapolated to cover Mr Mbeki and the whole cabinet (para 213). (It is 
a matter of public record that Dr Maduna left cabinet after the 2004 
general elections.) Once again, the ‘strategy’ involving Dr Maduna, Mr 
Mbeki and all the other members of cabinet as well as the causal 
connection between the Ngcuka decision and Mr Mbeki and the cabinet as 
found by the trial judge were not based on any evidence or allegation. 
They were instead part of the judge’s own conspiracy theory and not one 
advanced by Mr Zuma. Further, the finding, by implication or otherwise, 
that a non-party may have committed a criminal act where this was not 
alleged, where it was not in issue and without hearing that party is 
incomprehensible.

THE PIKOLI DECISION

[45] It will be recalled that the Pikoli decision to indict Mr Zuma came 
to nought when Msimang J struck the case from the roll. This, according 
to the Constitutional Court, terminated the proceedings. Having fallen 
away, the Pikoli decision was of mere academic interest and nothing was 
left to set aside. The court below realised this and, consequently, 
refrained from setting it aside (para 242).

[46] The court nevertheless proceeded to make findings about the 
decision that cannot be justified on the record and, once again, I would 
fail in my duty if I did not indicate briefly where the court 
overstepped the mark. It latched onto a paragraph in an annexure to the 
NDPP’s answering affidavit on which Mr Zuma had not relied (para 
197-199). It was an answer by Mr Pikoli to an affidavit made by Mr Zuma 
in the proceedings before Msimang J. The NDPP alleges that the trial 
judge misunderstood the context of Mr Pikoli’s evidence and counsel for 
Mr Zuma did not dispute this. The court also relied on the contents of a 
newspaper article that speculated that the decision to prosecute was 
politically motivated (para 200-205). Mr Zuma had attached the article 
to his founding affidavit to indicate that he believed that his case was 
being reviewed by the NDPP. He did not rely on the contents of the 
article which, in any event, were no more than inadmissible speculation 
by a journalist.

[47] The trial judge, again, failed to comply with basic rules of 
procedure. Judgment by ambush is not permitted. It is not proper for a 
court in motion proceedings to base its judgment on passages in 
documents which have been annexed to the papers when the conclusions 
sought to be drawn from such passages have not been canvassed in the 
affidavits. The reason is manifest ─ the other party may well be 
prejudiced because evidence may have been available to it to refute the 
new case on the facts. A party cannot be expected to trawl through 
annexures to the opponent’s affidavit and to speculate on the possible 
relevance of facts therein contained. The position is no different from 
the case where a witness in a trial is not called upon to deal with a 
fact and the court then draws an adverse conclusion against that witness.

[48] This criticism also applies in relation to the findings of the 
court below about the unrelated investigation concerning the 
Commissioner of Police, Mr Jackie Selebi. Its findings that (a) ‘there 
is no refutation that the Selebi warrants were cancelled by Mr Mpshe 
after political interference and that Pikoli was suspended because he 
refused to do so’ (para 205); that (b) ‘Mr Pikoli does not deal with the 
allegation that the issuing of the warrants against Selebi was not 
palatable to the President but the decision to prosecute the applicant 
was’ (para 206); and that (c) ‘the suspension of [Mr Pikoli] was a most 
ominous move that struck at the core of a crucial State institution’ 
(para 207) were all likewise based on unconfirmed newspaper speculation 
on which Mr Zuma did not and could not rely. Here again the court, 
without having all the facts, commented on matters that were not in 
issue or canvassed.

[49] Mr Zuma did not note a cross-appeal in relation to the dismissal of 
his claim for setting aside the Pikoli decision and, accordingly, the 
procedural correctness of this decision does not call for consideration. 
It is, however, necessary to say something about the allegation of 
political meddling with Mr Pikoli’s decision. This is because, although 
Mr Zuma made a general allegation of ‘political motives and stratagems’ 
in the decision to prosecute him, it is only in the case of the Pikoli 
decision that he tried to identify role players who were allegedly 
involved.

[50] The sequence of events was the conviction of Mr Shaik, a visit to 
Chile by Mr Mbeki and Mr Pikoli, Mr Mbeki’s dismissal of Mr Zuma, and Mr 
Pikoli’s decision to prosecute him. From this Mr Kemp (for Mr Zuma) 
sought to infer an implied instruction by Mr Mbeki to Mr Pikoli to 
prosecute Mr Zuma. That was the high watermark of the ‘evidence’ on 
political meddling.

[51] Once again, without deciding that there was or was not political 
meddling, fairness requires that these facts and accusations should be 
put in their proper perspective. The judgment of the trial judge in the 
Shaik matter found, albeit not in those words, that a generally corrupt 
relationship (to use Mr Kemp’s words during argument) existed between Mr 
Shaik and Mr Zuma. He added, quite appropriately, that his judgment did 
not hold that Mr Zuma was guilty. I have already mentioned what the 
basis of Mr Mbeki’s reaction was and it is difficult to see how Mr 
Pikoli could, in the light of the Shaik judgment, have failed to 
prosecute Mr Zuma. The evidence about the trip to Chile is clear and Mr 
Zuma knew this in advance: Mr Pikoli did not accompany Mr Mbeki although 
they were on the same mission. They did not meet and did not discuss the 
matter. Whether Mr Zuma believes this or not is another matter; courts 
are duty-bound to deal with proven facts.

THE MPSHE DECISION

[52] The legality of the Mpshe decision is the crux of this appeal. 
Unfortunately, the court below subjected Mr Mpshe to the same treatment 
that it had inflicted on others. It also used the newspaper report 
referred to above to make a similarly unfounded finding against Mr Mpshe 
(para 200-205). Having done this, the court went on to assume that Mr 
Mpshe complied with the supposed instructions of Mr Mbeki to prosecute 
Mr Zuma fearing that he, like Mr Pikoli, might be suspended or dismissed 
should he assert his prosecutorial independence (para 207). All this was 
gratuitous and not based on any evidence.

[53] The court below set aside the Mpshe decision and the indictment 
that followed because of his failure to (a) comply with s 179(5) of the 
Constitution and (b) accord Mr Zuma a hearing in the light of his 
legitimate expectation that arose, firstly, because of the Ngcuka 
announcement (para 223-224) and, secondly, in view of a letter written 
by Mr Zuma’s attorney, Mr Hulley, shortly before the decision was made 
and Mr Mpshe’s response to it (para 132-133, 230).

[54] It is necessary to stress that the NDPP never refused to afford Mr 
Zuma a hearing. Mr Zuma knew from June 2005 that he was the subject of 
an investigation. He was soon thereafter served with ‘interim’ 
indictments. He had been told in the Ngcuka press release that he could 
make representations under s 22(4)(c) of the NPA Act and that the NDPP 
was duty-bound to consider them. He did nothing of the sort. Instead, he 
resisted all attempts by the NPA to further their investigation. This 
case is accordingly not about the opportunity to be heard – it is about 
Mr Zuma’s alleged right to be invited to make representations and, 
concomitantly, a right to a statement setting out the criteria that were 
applied in not prosecuting him and how these had changed. In other 
words, he requires with the invitation an analysis of the case against 
him as considered by Mr Ngcuka against the facts in possession of Mr Mpshe.

SECTION 179(5)(d) of the CONSTITUTION

[55] The full text of s 179 appears earlier in a footnote but it is 
convenient at this juncture to quote the relevant part of sub-sec (5):

‘The National Director of Public Prosecutions—
. . .
(d) may review a decision to prosecute or not to prosecute, after 
consulting the relevant Director of Public Prosecutions and after taking 
representations within a period specified by the National Director of 
Public Prosecutions, from the following:
(i) The accused person.
(ii) The complainant.
(iii) Any other person or party whom the National Director considers to 
be relevant.’

[56] The main issue between the parties is whether the requirement of 
‘taking representations’ from Mr Zuma applies to the facts of this case. 
The NDPP argues that the provision applies only to reviews of decisions 
of DPPs and their prosecutors while Mr Zuma contends that it also 
applies when the NDPP reconsiders one of his own decisions.

[57] Before dealing with the wording of the provision it must be placed 
in context. Section 179 is to be found in chapter 8 of the Constitution, 
which deals with ‘Courts and Administration of Justice’. This chapter 
does not purport to deal with rights of accused persons – they are 
contained in chapter 2, the Bill of Rights, more particularly s 35. I 
accept that the chapter must be so interpreted that it promotes the 
spirit, purport and objects of the Bill of Rights and fits seamlessly 
into the Constitution as a whole.

[58] As mentioned before, s 179 created a new prosecutorial structure 
where, instead of having a number of Attorneys-General, each with their 
respective areas of jurisdiction, one now has an NDPP who is a 
presidential (political) appointee at the apex of a single NPA and below 
him DPPs and prosecutors who are not.

[59] Against this background sub-sec (3)(b) states that DPPs are to be 
‘responsible’ for prosecutions in their specific jurisdictions, subject 
to the contentious sub-sec (5). ‘Responsible’, as Mr Kemp argued, means 
in this context ‘answerable, accountable; liable to account’. By virtue 
of the cross-reference to sub-sec (5), this implies that DPPs are 
answerable to the NDPP. Paragraphs (a)-(c) proceed to deal with three 
functions of the NDPP in his capacity as head of the NPA and his control 
over DPPs and the prosecutors for whom they are in turn responsible. 
They are to determine prosecution policy; to issue policy directives; 
and to intervene in the prosecution process when policy directives are 
not complied with.

[60] Sub-section (5)(d) deals with the procedure that the NDPP must 
follow in reviewing a prosecutorial decision. This requires prior 
consultation with ‘the relevant’ DPP and prior representations from the 
accused, the complainant and any other relevant person.

[61] The dictionary meaning of ‘review’ includes the review of an own 
decision but as the court below correctly pointed out ‘the concept of a 
review or reconsideration assumes a role somewhat elevated to and 
distant from the person whose decision is being reviewed’ (para 106). It 
is also in the ordinary course of events done on the existing record and 
the facts that were before the person whose decision is being reviewed. 
Support for this can be found in legislation such as s 302 of the 
Criminal Procedure Act 51 of 1977, s 24 of the Supreme Court Act 59 of 
1959, the various statutes dealing with courts of the same status as the 
high courts, PAJA and the Uniform Rules of Court r 53. It is accordingly 
wrong to argue, as did Mr Kemp, that regard must simply be had to the 
dictionary meaning of ‘review’. Dictionary meanings are only a guide to 
meaning because the meaning of words depends on context.

[62] In the context of sub-sec (5), the power to review can only be an 
‘apex’ function, in other words, a function of the head of the NPA qua 
head. Paragraph (d) accordingly deals only with the review of a decision 
by the ‘relevant’ DPP – it does not include a reconsideration of the 
NDPP’s own decisions. Once this is accepted, the reference to the 
‘relevant’ DPP does not, as submitted by Mr Kemp, refer to the DPP who 
is affected because the case may fall within his jurisdiction.

[63] Mr Kemp also submitted that para (d) is an empowering provision, 
meaning that the NDPP’s power to review decisions derives solely from 
its terms. The corollary of his argument is that the consultation and 
representation requirement applies to decisions of the NDPP or else the 
NDPP would not be entitled to revisit his own prosecutorial decisions. 
In the light of the finding in the preceding paragraph that the 
provision is an ‘apex’ provision that deals with the control of the NDPP 
over the DPPs, the premise of the argument falls away.

[64] There is a more compelling reason why the submission cannot be 
sustained. Section 179(2) is the empowering provision. It empowers the 
NPA to institute criminal proceedings, and to carry out ‘any necessary 
functions incidental to instituting criminal proceedings’. The power to 
make prosecutorial decisions and to review them flows from this. If it 
were necessary specially to empower any member of the NPA to make such 
decisions and to revisit them, one would have expected the Constitution 
to have said so. It would be incongruous to require a special provision 
to empower the head of the NPA to review matters but to assume that 
other members of the NPA of a lower rank have the power of review by 
implication. One would have expected that at the lower level there is 
greater need for these requirements but, significantly, the drafters of 
the Constitution, conscious of the existing practice, and for good 
reason, did not think it necessary to include such safeguards.

[65] Mr Kemp further argued that the purpose of the provision was to 
protect the legitimate reliance an accused and a complainant may place 
on a duly considered and announced prosecutorial decision, and that it 
limits arbitrary changes of prosecutorial decisions at the NDPP level. 
This means that any decision reviewed by the NDPP is subject to the 
consultation and representation requirements of the sub-section. The 
reason, he said, is to be found in the fact that the NDPP is a political 
appointee and, consequently, the object of the consultation and 
representation requirement is to control the NDPP’s political mindset in 
decision-making.

[66] There are several counters to this argument. First, although the 
NDPP is a presidential appointee it is fair to assume that the drafters 
of the Constitution took it for granted that the NDPP would, as would 
Attorneys-General in common-law countries who are also political 
appointees, act independently and not take political considerations into 
account in making prosecutorial decisions. I have dealt earlier with 
this aspect. Second, if the object was to prevent the NDPP from taking 
decisions without the input of DPPs in order to prevent him from taking 
politically motivated decisions, the provision would not have limited 
the consultation and representation requirement to cases of review, but 
would have extended it to all his prosecutorial decisions. In order to 
give the submitted rationale sense, counsel had to introduce a 
limitation into the text of the Constitution, namely that the decision 
under review must have been announced. There is nothing to justify such 
a limitation.

[67] Mr Kemp also relied on the equal protection clause in the 
Constitution. The argument amounts to this: all accused persons should 
be treated equally; and the right to be invited to make representations 
in the case of a review of a prosecutorial decision should accordingly 
be so interpreted as to accrue to all reviews and not only those of the 
NDPP’s subordinates. The presumption of equal treatment in statutory 
interpretation has always been with us and now has a special status by 
virtue of the Bill of Rights. The question is whether it is ousted by 
other considerations in the circumstances of this section of the 
Constitution. I am of the view that it is. The underlying purpose of the 
provision is not to protect the accused or the complainant: it is to 
define the procedure for the exercise of the power of control of the 
NDPP. It would be strange to find such an important right, which is not 
known in comparable jurisdictions or in our common law, in a chapter of 
the Constitution that deals basically with structures concerned with the 
administration of justice and not rights. The Bill of Rights deals in 
great detail with the rights of accused persons, and is silent about the 
right to be invited to make representations concerning prosecutorial 
decisions. The main problem though is that s 179 on any interpretation 
‘discriminates’ in the sense that the right to be invited does not 
extend to most prosecutorial reviews like those by a DPP or a 
prosecutor. These considerations trump in my view the presumption and Mr 
Kemp’s reliance on the equal protection clause of the Bill of Rights is, 
accordingly, misplaced.

[68] Both parties pointed to anomalies flowing from the other’s 
interpretation. Mr Trengove (for the NDPP) pointed to these: Why protect 
an accused when an earlier prosecution decision is reversed but not when 
the first prosecution decision is taken? Why protect him when the NDPP 
reverses an earlier prosecution decision but not when the DPP or the 
prosecutor does so? Who is the relevant DPP with whom the NDPP must 
consult when the earlier decision was his own? Why must the NDPP consult 
with the accused if he wishes to withdraw and with the complainant if he 
wishes to prosecute? Mr Kemp had a shorter list of anomalies. The first 
can be disposed of immediately. He suggested that to avoid a review by 
the NDPP, a DPP may dishonestly have a prosecutor make the decision to 
prosecute. This is not so: the ‘relevant’ DPP is the one who is 
‘responsible’ for the prosecution under ss (3)(b). The second concerns 
the case where the NDPP reviews a decision of a DPP after hearing 
representations but then at the request of one of the affected parties 
decides to reconsider his decision without hearing anyone. This reductio 
ad absurdum is but another formulation of one of Mr Trengove’s anomalies 
and, as he said, anomalies will remain irrespective of which 
interpretation is adopted.

[69] The last aspect that needs mentioning in relation to the 
interpretation of para (d) concerns the use by the court below of the 
‘reading in reading out’ method of interpretation (para 123-126). This 
method is a constitutional remedy which is used to prevent a finding 
that legislation is unconstitutional. This case is concerned with the 
interpretation of the Constitution itself and not with its 
constitutionality and the use of the ‘reading in reading out’ mechanism 
by the court was inappropriate.

[70] I therefore conclude that s 179(5)(d) does not apply to a 
reconsideration by the NDPP of his own earlier decisions but is limited 
to a review of a decision made by a DPP or some other prosecutor for 
whom a DPP is responsible.

[71] Mr Kemp sought to argue on the facts that the Ngcuka decision was 
not one by the NDPP but was taken jointly by the NDPP and the head of 
the Directorate of Special Operations (the DSO) who, he submitted, was a 
DPP and, accordingly, that the Ngcuka decision was one by a DPP. The 
head of the DSO is a post-Constitution creation and is not a DPP but a 
deputy NDPP in terms of the NPA Act (s 7(3)). Further, the fact that he 
joined in the decision-making does not mean that the decision is no 
longer that of the NDPP. If the argument were correct, it would mean 
that the Mpshe decision was also not one made by the NDPP and would fall 
beyond the provision and destroy the basis of Mr Kemp’s whole argument 
because it, too, was made jointly with the head of the DSO.

[72] A further aspect of the Ngcuka decision that requires consideration 
is its scope. The decision was made in a particular context. The context 
was the two counts of corruption levelled against Mr Shaik, Mr Zuma 
being the recipient of the alleged bribes. It was not a decision not to 
prosecute Mr Zuma for any crimes whenever committed. Mr Ngcuka made it 
clear that if circumstances were to change in the sense that more or 
better evidence became available the decision not to prosecute would be 
revisited and reconsidered. This means that the Ngcuka decision was not 
intended to be final; it depended on the then available evidence; and it 
was limited to the mirror images of the Shaik corruption counts.

[73] The Mpshe decision, on the evidence of the NDPP, was not a review 
of the Ngcuka decision. The Ngcuka decision had been overtaken by 
events. There was the impact of the evidence and judgment in the Shaik 
trial; there was the availability of additional evidence which, apart 
from strengthening the prima facie case, placed a different complexion 
on the corruption counts and in the mind of the NDPP justified the 
addition of counts of money laundering and racketeering; there are now 
four main corruption counts; and there is evidence about further crimes, 
such as tax evasion and fraud on Parliament.

[74] There is another consideration flowing from the differences between 
the counts underlying the Ngcuka decision and the indictment that was 
ultimately before Nicholson J. Even on his interpretation of s 179(5)(d) 
he was obliged to excise the good from the bad. However, he held that 
the ‘offer [by Mr Ngcuka] to hear [Mr Zuma’s] representations probably 
covered any charges against him should the [NDPP] decide to charge him’ 
(para 244). As a finding of fact it is wrong because Mr Ngcuka’s alleged 
offer was not open-ended and it also overlooks the fact that a review by 
the NDPP of a decision not to prosecute under s 179(5)(d) has nothing to 
do with any prior ‘offer’ to hear representations.

[75] In addition, as held by the Constitutional Court, as soon as the 
matter had been struck from the roll by Msimang J, the criminal 
proceedings were terminated and the proceedings were no longer pending. 
Removal of a matter from the roll aborts the trial proceedings. The 
effect of this is that what went before the Mpshe decision was spent and 
a new decision to prosecute was required. The Mpshe decision was not 
simply a review of the Ngcuka decision, which was no longer extant. On 
these facts, s 179(5)(d) had, irrespective of whichever interpretation 
is correct, no application, and Mr Zuma’s reliance on it was misplaced.

LEGITIMATE EXPECTATION

[76] I now turn to consider the argument based on legitimate 
expectation, which is an alternative cause of action. I found it 
difficult to come to grips with Mr Kemp’s argument on both the 
expectation and its legitimacy.

[77] The argument underwent a metamorphosis and ultimately it was that 
Mr Zuma ought to have been given an opportunity (more accurately, to 
have been invited) to make representations, not about the reversal of 
the Ngcuka decision but about the ‘effective decision not to afford [him 
the opportunity] to make representations which could or would relate 
also to issues which have nothing to do with the merits of the criminal 
trial’. This sleight of hand was apparently due to a tacit recognition 
that decisions to prosecute are not covered by ‘specialised legislative 
regulation of administrative action’, and that they are not reviewable 
on the ground of legitimate expectation by virtue of PAJA. The problem 
with this argument is that there is nothing on the papers to suggest 
that the NDPP decided not to afford Mr Zuma the opportunity to make 
representations. To dissect any administrative decision into discrete 
sub-decisions as counsel would have it is contrived since, as Mr 
Trengove said, any procedural unfairness would then imply a prior 
decision, whether express or tacit, not to follow the correct procedure.

[78] It is to be noted that Mr Kemp scuppered the case as presented to 
and found by Nicholson J. He no longer sought to rely on the Ngcuka 
announcement or on the Hulley/Mpshe correspondence as having created any 
expectation because, as he said, he could not point to any 
representation in them. To indicate how valueless the Ngcuka 
announcement was for purposes of extricating from it a promise to invite 
representations, it is worth quoting:

‘We have never asked for nor sought mediation. We do not need mediation 
and we do not mediate in matters of this nature. However, we have no 
objection to people making representations to us, be it in respect of 
prosecutions or investigations. In terms of section 22(4)(c) of the 
[NPA] Act, we are duty bound to consider representations.’

As said, Mr Zuma never purported to make representations under the NPA Act.

[79] Mr Kemp sought to rely on an accumulation of facts namely that (a) 
the Ngcuka decision was preceded by a careful investigation; (b) during 
that investigation Mr Zuma, instead of being subjected to a warning 
statement, was asked to answer written questions, some of which he did; 
(c) the NDPP knew that Mr Zuma suspected political meddling and 
strenuously denied that there was any real new evidence; (d) Mr Zuma 
asserted that s 179(5)(d) applied and Mr Hulley by implication had 
requested the NDPP to comply with s 179(5)(d) and the NDPP refused; and 
(e) the NPA is bound by its policy directives. If I have omitted any it 
is because the written and oral argument on this aspect of the case was 
rather opaque.

[80] An expectation can be legitimate only if it is based on a practice 
of or a clear and unambiguous representation by the administrator. 
Instead of relying on any representation, Mr Zuma relies on self-created 
expectations based on his own perceptions of the law and the facts, 
which have always been in dispute. As to practice, the best Mr Kemp 
could do was to quote at length from the NPA’s prosecution policy 
without pointing to any provision that established any practice or 
contained a representation on which Mr Zuma relied.

THE STRIKING OUT

[81] I have already referred to the impugned allegations in the founding 
affidavit which were completely irrelevant. It is not necessary to 
analyse the allegations objected to by the NDPP because it makes no 
sense to strike them out at this late stage of the proceedings. The 
damage has been done. This does not mean that the order of the court 
below should stand. Most of the allegations were not only irrelevant but 
they were gratuitous and based on suspicion and not on fact. The excuse 
for including them was unconvincing especially in the light of the 
disavowal of any intention to rely on them. The prejudice to the NDPP 
was manifest. Instead of having a short and simple case, the matter not 
only ballooned but burst in the faces of many. There may well be reason 
to hold that many of the allegations were vexatious and scandalous but, 
once again, it is not necessary to do so for present purposes.

[82] An order on the scale of attorney and client is fully justified, 
especially since it is not the first occasion on which Mr Zuma has 
insisted on including such irrelevant allegations. One cannot escape the 
impression that the founding affidavit was cut and pasted from other 
court papers and that in response the NDPP followed suit. Mr Kemp 
submitted that we could not interfere because the court below had 
exercised its discretion. However, the court did not exercise any 
discretion and to the extent that it purported to do so it relied on 
incorrect principles and had the facts wrong.

[83] Mr Zuma’s unusual application to strike out the affidavit in 
support of the NDPP’s application to strike out was, in the light of 
this, ill-conceived and should not have succeeded in the court below.

THE INTERVENTION APPLICATION

[84] It ought to be apparent by now that Mr Mbeki and other members of 
Government had ample reason to be upset by the reasons in the judgment 
which cast aspersions on them without regard to their basic rights to be 
treated fairly. It is not necessary to revisit those issues since they 
have been dealt with in sufficient detail. However, they make the 
applicants’ desire to intervene at the appeal stage understandable.

[85] Nevertheless, to be able to intervene in proceedings a party must 
have a direct and substantial interest in the outcome of the litigation, 
whether in the court of first instance or on appeal. The basic problem 
with the application is that the applicants have no interest in the 
order but only in the reasoning. They are in the position of a witness 
whose evidence has been rejected or on whose demeanour an unfavourable 
finding has been expressed. Such a person has no ready remedy, 
especially not by means of intervention. To be able to intervene in an 
appeal, which is by its nature directed at a wrong order and not at 
incorrect reasoning, an applicant must have an interest in the order 
under appeal. The applicants do not have such an interest.

[86] They also sought leave to join as amici curiae. In the light of the 
NDPP’s argument their intervention in this regard was not required since 
it did not add anything new.

[87] In the result the application stands to be dismissed. The question 
of its costs remains. Mr Zuma filed a lengthy answering affidavit which 
was unnecessary and inappropriate. Since Mr Kemp fairly conceded that 
the court below had no grounds for making (most, if not all) the 
impugned findings, Mr Zuma’s opposition is not understood. He had no 
legal interest in upholding the denigration of the applicants and in 
opposing the intervention because it did not affect the order he sought 
to uphold. The submission that we should not reconsider these findings 
because they are not appealable is cynical. He should therefore bear his 
own costs in this regard.

THE ORDER

[88] In the light of the foregoing the following order is made:
A The appeal is upheld with costs including the costs of three counsel.
B Paragraphs 1 to 4 of the order of the court below are set aside and 
replaced with the following:
‘1 The application is dismissed.
2 The applicant is to pay the respondent’s costs of suit including those 
consequent upon the employment of three counsel.
3 On the respondent’s application to strike out, the applicant is 
ordered to pay the costs on the attorney and client scale.
4 The applicant’s application to strike out is dismissed with costs on 
the attorney and client scale.’
C The application to intervene is dismissed.





_______________
L T C HARMS
DEPUTY PRESIDENT



For Appellant: W Trengove SC
B Downer SC
G Baloyi
A Breitenbach
A Steynberg


Instructed by: Deputy Director of Public Prosecutions
Durban

The State Attorney
Bloemfontein


For Respondent: K J Kemp SC
M D C Smithers
A A Gabriel


Instructed by: Hulley & Associates
Durban

Honey Attorneys Inc
Bloemfontein

Advocates for Interveners:

M T K Moerane SC
P Coppin SC
L Gcabashe