Prosecution — Discontinuance — Decision to discontinue prosecution — National Prosecuting Authority basing decision on abuse-of-process doctrine — Court of law appropriate authority to deal with such doctrine, not extra-judicial process — Legal authorities, of which NPA should have been aware, not supporting decision taken by NPA — Decision not to refer complaint of abuse of process to court irrational — When Acting National Director announced decision to discontinue prosecution, no discussion held with senior members of NPA to source their views — Such failure also irrational — Acting National Director having acted impulsively and irrationally in making decision — Matter should have been dealt with by court — Application to review and set aside decision granted.

The third respondent, the present President of the Republic of South Africa, had in 2007 been indicted in a High Court on various criminal charges. On 6 April 2009 the first respondent, following written and oral representations by the third respondent’s legal representative, and relying on the abuse-of-process doctrine, decided to discontinue the prosecution of the third respondent on the indictment served upon him. The reason given for the discontinuance of the prosecution was that the second respondent, the head of the Directorate of Special Operations, had ‘manipulated the legal process for purposes outside and extraneous to the prosecution itself’ and ‘used the legal process for a purpose other than that which the process was designed to serve, ie for collateral and illicit purposes’. The first respondent was of the opinion that ‘(a) (i)t will not be possible to give the accused a fair trial; or (b) (i)t 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.’ The following day the applicant launched an application for an order ‘(r)eviewing, correcting and setting aside the decision of the first respondent, taken on or about 6 April 2009, to discontinue the criminal prosecution of [Mr] Zuma, in accordance with charges contained in an indictment of 27 December 2007’ and ‘(d)eclaring . . . the decision of the first respondent referred to . . . above to be inconsistent with the Constitution of the Republic of South Africa, 1996, and invalid . . .’. It appeared from the affidavits in the application that, prior to the first respondent’s decision to discontinue the prosecution, he had been satisfied that the state had a strong case on the merits. The first respondent, his deputies and the prosecution team had no doubt that the prosecution would proceed. It was after the first respondent and his deputies had listened to certain audio tapes of telephone conversations between the second respondent and a former National Director of Public Prosecutions that the first respondent changed his mind and decided to discontinue the prosecution.

The applicant contended that the first respondent’s decision should be reviewed, corrected and set aside on the ground of illegality and irrationality. The first and second respondents contended in essence that, having regard to the second respondent’s conduct, the first respondent was justified in deciding to discontinue the prosecution and that his decision was rational. The third respondent’s counsel argued that, even if the merits of the state’s case were strong, the decision to discontinue was rational and justified because, according to the contents of the recorded conversations, the National Prosecuting Authority’s (NPA’s) independence would be affected and it would be seen to be meddling in political decisions. It was further submitted that the fact that the plan of the second respondent, to negatively influence the election of the third respondent as president of the ANC, was unsuccessful, was immaterial. The abuse was of such a serious nature that the decision not to prosecute was rational.

Held, that a court of law was the appropriate forum to deal with the abuse-of-process doctrine, not an extra-judicial process. Prior to his decision to discontinue the prosecution, the first respondent subscribed to the view that the allegations raised in the tape recordings and the representation by the third respondent’s legal team had to be subjected to judicial process, if anything, to test the veracity thereof. But he inexplicably and irrationally abandoned this view.

Held, further, that legal authorities, of which the first respondent should have been aware or so advised, did not support the decision taken by him in an instance such as this under review, where the abuse-of-process doctrine is applied in an extra-judicial exercise of public power, when the prosecution against an accused is discontinued. In this instance the basis of the alleged abuse of process rested on legally untested allegations which were unrelated to the trial process and the charges. Therefore, the conduct of the first respondent, by not referring the complaint of abuse of process, and the related allegations against the second respondent, to court, rendered his decision irrational.


Held, further, that the first and third respondents had brought into their answering affidavits the previous conduct of the second respondent, but that only served to describe the character of the second respondent as an officer who was inclined to meddle in political affairs, nothing more. It was information well known to the first respondent, even before he heard the tapes of the conversations. It was irrational to argue that it constituted the basis upon which the prosecution was to be discontinued.


Held, further, that, when the first respondent announced his decision on 1 April 2009 to senior members of the NPA, no discussion was held with them to source their views on the matter. This omission was critical, considering that up to 31 March 2009 they had been collectively discussing it and had agreed to continue with the prosecution. They had been briefed on the content of the tape and, on the evening of 31 March 2009, they had heard the tape with the first respondent. It was to be expected that they individually would have formed some views on the matter. Failure to source their views under the circumstance was irrational.


Held, further, that the first respondent had failed to explain how the information he had heard on the tape could be said to have affected, compromised or tainted the envisaged trial process and the merits of the intended prosecution. In fact, in his media address announcing his decision, he conceded that the alleged conduct of the second respondent had not affected the merits of the charges against the third respondent. There was thus no rational connection between the need to protect the integrity of the NPA and the decision to discontinue the prosecution against the third respondent.


Held, further, that the first respondent, in his own words on 1 April 2009, stated that he felt angry and betrayed by what he had heard on the tape recordings. His feelings of anger and betrayal caused him to act impulsively and irrationally, considering the factors as set out above. He did not allow himself time to consider the question whether the very decision he was about to take could be regarded by other people, facing similar charges throughout South Africa, as a breach of the principles of equality before the law, or that it would be an abuse of process to discontinue charges against people of high profile or standing in the community. The conflict between the third respondent’s defence and the prosecution’s evidence could only be determined if all the evidence the prosecution and the third respondent wished to adduce was presented and tested in a court of law.


Held, accordingly, that, having regard to the evidence before the court, the first respondent found himself under pressure and he decided to discontinue the prosecution of the third respondent, and consequently made an irrational decision. Considering the situation in which he found himself, the first respondent ignored the importance of the oath of office which demanded of him to act independently and without fear or favour. The envisaged prosecution against the third respondent was accordingly not tainted by the allegations against the second respondent. The third respondent should face the charges as outlined in the indictment. Application granted. 


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