Franny Rabkin
1 October 2008
Johannesburg — THE acting National Director of Public Prosecutions (NDPP), Mokotedi Mpshe, yesterday applied for leave to appeal against Judge Chris Nicholson's judgment in African National Congress (ANC) president Jacob Zuma's case, saying Nicholson had "erred" in 16 instances.
Nicholson held in his judgment that Zuma had a right and a legitimate expectation to make representations to Mpshe before Mpshe reversed a prior decision by then-NDPP Bulelani Ngcuka not to prosecute Zuma.
In the course of his judgment, Nicholson also emphatically suggested that former president Thabo Mbeki and other members of the executive had "meddled" in the work of the National Prosecuting Authority (NPA).
Yesterday's appeal was against the "whole judgment and all of the orders" delivered by Nicholson on September 12, excluding the order not to allow the admission of a friend of the court.
Mpshe said his decision last December still to prosecute Zuma was not a review of a previous decision but a "fresh decision", taken after the matter had been struck off the role.
"Nothing remained of the Ngcuka and the (suspended NDPP Vusi) Pikoli decisions thereafter. The Ngcuka decision was overturned by the Pikoli decision. The Pikoli decision was in turn spent and no longer had any effect when the case was struck from the role in September 2006."
Mpshe said section 179(d)(d) of the constitution applied only where the national director was reviewing decisions of his subordinates, not when he was reviewing his own decisions. He said Nicholson had misinterpreted the section because he had misconceived its purpose.
Nicholson had attributed the purpose of the section to be a safeguard for an accused person. But Mpshe said the real purpose of the NDPP taking representations was to safeguard the autonomy of the directors of public prosecutions, the NDPP's juniors.
On Nicholson's findings with regard to "political meddling", the NDPP said in his appeal that none of Nicholson's findings on political meddling were "raised for decision" by the parties. "None of those issues were material to the resolution of the case. This court was accordingly not acting in pursuance of its duty to resolve the dispute between the parties."
Mpshe referred to a number of instances in the transcript of the case where Zuma and his lawyers expressly disavowed that they were arguing that Mpshe's decision was motivated by political pressure.
Had these issues been raised by Zuma, Mpshe said, they would have been answered.
"It is undesirable for a court to deliver a judgment with substantial portions containing issues never canvassed by counsel. This court violated the audi alterem partem principle by drawing inferences of misconduct or bad faith against the NDPP without affording him an opportunity to respond to them."
Mpshe said the findings by Nicholson on political interference were "irrelevant both to the substantive relief sought and to the dispute about the applications to strike out that remained at the end of the oral argument".
Nicholson said in his judgment that he needed to look at the question of political interference because it was alleged in those parts of Zuma's affidavit which the NDPP sought to have struck out.
But according to Mpshe, by the time oral argument was over, the only issue that remained to be resolved on the striking out application was who should pay the costs as Zuma's lawyers had said they were not arguing that it - the decision not to hear Zuma's representations - was politically motivated.
Mpshe also disputed that there was anything wrong with Ngcuka's decision not to prosecute Zuma at the same time that he prosecuted the ANC leader's financial adviser, Schabir Shaik, or with former justice minister Penuell Maduna being present at the press conference where the decision was announced.
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