IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL PROVINCIAL DIVISION, PIETERMARITZBURG

KZNHC Case NO: CCD30/2018

In the matter of:

THE STATE

and

JACOB GEDLEYIHLEKISA ZUMA First Accused

THALES SOUTH AFRICA (PTY) LIMITED Second Accused

FIRST ACCUSED’S SET OF HEADS OF ARGUMENTS ON THE PLEA: SECTION

106(1)(h) OF THE CRIMINAL PROCEDURE ACT, 1977 READ WITH SECTION
106(4) AND 108

TABLE OF CONTENTS

Background ................................................................................................................................ 1

Judicial criticisms of the NPA ................................................................................................... 4

Findings of the Public Protector against the NPA ................................................................... 22

The Khampepe Commission investigation into the mandate and location of the DSO .......... 25

Conclusion ............................................................................................................................... 30

The NPA’s own evidence on its prosecutorial misconduct ..................................................... 30

Mr Mpshe’s decision to terminate the criminal proceedings .............................................. 32

Discussion on title to prosecute ............................................................................................... 32

Interpreting title to prosecute within the Constitution ............................................................. 36

The court must interpret the NPA’s title to prosecute with due regards to the Constitution and
the NPA Act............................................................................................................................. 45
NPA unlawful decisions .......................................................................................................... 50

On the NPA’s evidence of political interference ..................................................................... 54

The NPA has no title to prosecute in violation of section 9(1) of the Constitution ................ 56

Downer’s Report on the prospects of a successful prosecution of Jacob Zuma...................... 57

NPA has no title to prosecute in violation of the accused’s right of access to courts which
includes the right to a fair public trial...................................................................................... 78

Comparative approach on the issue of unreasonable delay: NPA has no title to delay
unreasonably in prosecuting an accused .................................................................................. 87

Clean hands doctrine and loss of title to prosecute ................................................................. 91

Downer has no title to abuse prosecutorial powers by prosecuting to advance political

objectives ................................................................................................................................. 95

the doctrine of abuse of process in assessing title to prosecute ............................................... 98

On Ngcuka’s conduct ............................................................................................................ 101

On Pikoli’s conduct ............................................................................................................... 104

The lawfulness of the Browse Mole investigation ................................................................ 112

The refusal of Mpshe and McCathy to consult with the State in relation to this application 118

Lack of independence and impartiality on the part of entire NPA due to spying and surveillance
by NIA ................................................................................................................................... 136

Dismissal on basis of other misconduct ................................................................................ 143

Illegal recording of accused by private persons .................................................................... 144

List of authorities ................................................................................................................... 145

ii
 1

BACKGROUND

1. On 17 May 2021, for the first time in a criminal investigation and prosecution that began

around 2004, the National Prosecuting Authority (“NPA”) announced both to the public

and in an open court that it was finally ready to initiate a lawful prosecution against

Mr Zuma. This was after they had been compelled to do so by the Supreme Court of

Appeal (“SCA”) in a scathing judgment in which the decision to terminate the

prosecution on account of prosecutorial misconduct and abuse of process doctrine by the

then Acting National Director of Public Prosecutions (“ANDPP”) Mr Mpshe was

reviewed and set aside.1 The significance of this judgment of the SCA will be dealt with

further in these submissions, but suffice to say that, in scathing and uncomplimentary

terms, it found that the NPA had acted unlawfully in its exercise of prosecutorial powers

to terminate a prosecution on the basis of abuse of process doctrine. What the SCA did

not do was to assess whether the NPA’s unlawful conduct had any impact on the fair trial

rights of Mr Zuma. The SCA could not do so – for only a trial court – on the correct

criminal standard of proof could determine whether the NPA’s unlawful conduct had any

impact on Mr Zuma’s fair trial rights. It is therefore this trial court that must do so on the

available evidence, alternatively to refer the plea to trial by oral evidence in terms of

section 108 of the CPA.

2. Prior to that, various courts at different levels had also found that the NPA had acted

unlawfully in relation to investigations and prosecution decisions involving Mr Zuma. It

is worth starting there, for on a careful examination of the acts of prosecutorial

misconduct conceded by the NPA, Mr Downer, its prosecutor has no title to prosecute.

On the evidence of the NPA, it is also clear that it aided and abated gross forms of

1
Zuma v Democratic Alliance and Others 2018 (1) SA 200 (SCA)
 2

prosecutorial misconduct which include the covering up of unlawful and criminal

interference in the investigation and prosecution of Mr Zuma. These unlawful and

criminal acts included using the NPA’s constitutional status to subvert the constitutional

democratic system in which the investigation and prosecution of Mr Zuma was used to

influence the choice of President for the Republic of South Africa. The NPA has no title

to do so through Mr Downer, who is its employee and official. The NPA is specifically

prohibited from engaging in political activities of whatever nature and therefore cannot

confer title on a prosecutor to perform a prosecution where it is evident that such

prosecution is solely intended to side-line political foes of a particular faction within the

dominant political party. The NPA’s constitutional status may not be used to direct the

political events of the country and where it is clear that its process has largely been

employed to do so, there is no lawful title for such prosecutions.

3. The NPA has no power to confer on Mr Downer title to prosecute for unconstitutional

objectives, even where Mr Downer believes that there is prima facie evidence of criminal

wrongdoing. That is because the NPA may not confer title on a prosecutor to prosecute

in pursuance of unconstitutional objectives which would include risk prosecution by

covering up NPA’s own evidence of criminal interference with the prosecution. The

source of the title to prosecute is the Constitution and the National Prosecuting Act 32 of

1998 (“NPA”). The institution that confers the title to prosecute is the NPA. The NPA as

an institution with the power to confer on prosecutors the title to prosecute cannot create

or enable prosecutors to use the title for purposes that are inconsistent with its central

constitutional mission. Section 106|(1)(h) read with section 106(4) of the Criminal

Procedure Act, 1977 (“CPA”) allows an accused person to attack the prosecutor’s title

where it is clear that the prosecution is conducted to advance unconstitutional

prosecutorial objectives. The objective for conducting a prosecution is as relevant as the

 3

prosecution itself, for if the objective is not to advance a constitutionally sanctioned

prosecution, it falls outside the title of the prosecutor.

4. The NPA confers title to prosecute on its prosecutors to ensure that only lawful

prosecutions are conducted on behalf of the state. The prosecutors do not have title to

prosecute where to do so would require them to cover up criminal interferences with a

prosecution. In essence, the NPA has no title to prosecute where there is evidence of

prosecutorial misconduct and criminal interference relevant to a trial and which the

prosecutor may not lawfully avoid to disclose in the course of the trial. The objectives of

the NPA are clearly set out in the Constitution and the NPA Act. It has no title outside

the strict framework of these legal instruments. Mr Downer has no title to prosecute a

trial where there has been criminal interference with that prosecution which he is acutely

aware of and which he appears to condone, cover-up, ignore or tolerate. A prosecutor has

no title from the NPA to prosecute on evidence that includes prosecution to achieve

purposes that are inconsistent with the central mission of the NPA. In this case, Downer

will not be able to conduct a prosecution by avoiding the NPA’s own evidence of criminal

abuse of its process to achieve unconstitutional objectives that are inimical to the central

objectives of the NPA.

5. Although the plea must be tried in terms of section 108 of the CPA a survey of the various

court judgments demonstrates why the NPA cannot confer title on Mr Downer to

prosecute the criminal trial of Mr Zuma in the circumstances of proven acts of criminal

and prosecutorial misconducts. Mr Downer himself has become party to the NPA’s

actions of condoning or covering up acts of criminal and prosecutorial misconduct. He

cannot have title to perform a lawful prosecution or to exercise the prosecutorial

discretion in a manner that is consonant with its supreme constitutional responsibilities,

 4

where the evidence that he must tender includes the NPA’s own violations of the

Constitution, the NPA Act and prosecutorial policies.

JUDICIAL CRITICISMS OF THE NPA

6. In S v Zuma [2006] JOL 18331 (N), Msimang J struck the prosecution off the roll after

the NPA failed to present evidence in Court to initiate the prosecution of Mr Zuma. In

doing so he made the following findings that are binding on the NPA even today. On the

issue of equality before the law as guaranteed in section 9(1) of the Constitution, he said

the following:

“There can be no doubt that accused one is a prominent member of the South
African community which prominence is born of years of his dedication to the
struggle for the liberation of the oppressed masses of this country. Also, that he
is respected and idolised by a large sector of the community cannot be gainsaid.
His standing within the community can, however, not alter his position in the eyes
of the law. Our Constitution proclaims that everyone is equal before the law and
had the right to equal protection and benefit of the law. We are therefore enjoined
by the Constitution to treat accused one in exactly the same manner as we would
treat any other person. As a corollary to that decree and as equally important is
the decree that, by virtue and because of his standing within the community,
accused one should be treated no worse. I am reminded of a pronouncement once
made by a Judge of the Canadian Supreme Court when a prominent politician
was on appeal before that court. During the course of the judgment the said judge
warned himself as follows:-

“(135) Everyone in this country, however prominent or obscure, is

entitled to the equal protection of the law. As a politician if some
prominence, the appellant was not entitled to be treated any better than
other individuals, but nor should he have been treated worse.”

It is this important principle which will, at all times, guide us in the determination
of the issues before us in this matter, the principle which is enshrined in our
Constitution for which the accused one, together with many others, fought so
hard.”

7. After these remarks on the right to equality, Msimang J then dealt with the principles

governing postponements in terms of section 168 of the CPA. He thereafter dealt with
 5

the conduct of the NPA in relation to its failure to commence the prosecution when

required by law to do so. He then found the following which applies with equal force

today.

“Something must also be said about social prejudice in this matter, that
prejudice associated with embarrassment and pain accused persons suffer as a
result of negative publicity engendered by the nature of the charges. During
argument the prosecution conceded that, as a result of the charges, the accused
in this matter did and still suffer from this type of prejudice. Not that the
prosecution had any choice. We cannot imagine any case in recent times which
has triggered as much negative publicity in the media as the present one.
Having made that concession the prosecution hastened to add that such
prejudice is unavoidable and constitutes an unintended consequence of our
criminal justice system. It comes with the territory.

That may well be so. However, as it was pointed out in the Sanderson case, the
problem with this kind of prejudice is that it closely resembles the kind of
punishment that ought to be imposed on convicted persons and is therefore
inimical to the right to be presumed innocent enshrined in the Constitution.
Much as such prejudice is inevitable in our criminal justice system, the
accused’s right to a trial within a reasonable time demands that the tension
between the presumption of innocence and the publicity of the trial be mitigated.

As we have already found, prosecution has not satisfied us that the required
evidence will be procured on the adjourned date. Should the matter then be
further postponed, the accused will continue to suffer this type of prejudice,
unnecessarily so, in our judgment. It would be appropriate at this stage to
curtail this non-trial related prejudice and to counter the same by using an
appropriate remedy.”

8. Msimang J, then went on to address the state’s arguments on the postponement and made

the following findings:

“Having perused the papers filed of record and having listened to counsel’s
argument, it has dawned to us that it was inevitable that the state’s efforts to
prosecute this matter would flounder. From the outset when a decision was
taken to prosecute those efforts were anchored on an unsound foundation. In
Sanderson’s case, Kriegler J counsels as follows:-

“But the prosecution should also be aware of those inherent delays and
factor them into the decision of when to charge a suspect. If a person
 6

has been charged very early in the complex case that had been
inadequately prepared, and there is no compelling reason for this, a
court should allow the complexity of the case to justify an over-lengthy
delay.”

It is now history that these words of wisdom from one of our eminent judges were
jettisoned by the state in favour of some non-procedural policy and a precipitate
decision was taken to prosecute accused one, a mere twelve (12) days after what
the prosecution perceived to be their success in the Shaik trial. The
implementation of that decision constituted the beginning of the end of the edifice.
Thenceforth the state case limped from one disaster to another.”

9. Msimang J then criticised the NPA by finding that the NPA “failed to factor the inherent

delays into their headstrong decision to prosecute, they could not have entertained a

reasonable expectation that they would manage what was admittedly a mammoth task,

that is, the marshalling of their evidence on time for the arranged date of trial.”

10. In Zuma v National Director of Public Prosecutions [2009] 1 All SA 54 (N) Nicholson

J, although overturned by the Supreme Court of Appeal2 made findings that are relevant

in the assessment of the State’s conduct. It must be borne in mind that the SCA’s

judgment overturning Nicholson J’s judgment criticised him for making findings in

which no evidence was available. On the basis of the NPA’s own evidence contained in

Hofmeyr’s affidavit in the DA review application, Nicholson J’s judgment appears to

have been correct. Addressing the principle against executive interference in

prosecutorial decisions, Nicholson J found the following, which the SCA did not

overturn:-

“[88] Subsection (6) provides that the Cabinet member responsible for the
administration of justice must exercise final responsibility over the
prosecuting authority. That this does not imply any right to interfere with the
decision to prosecute is clear from what follows.

[89] In their submissions to the enquiry into the NDPP (“the Pikoli Enquiry”)

2
National Director of Public Prosecution v Zuma (Mbeki) and another intervening) [2009] 2 All SA 243 (SCA)
 7

by the South African Institute of Advanced, Constitutional, Public, Human

Rights and International Law Hannah Woolaver and Michael Bishop
published in Advocate August 2008 at 31, the authors state:

“Therefore, the Minister’s powers of oversight are confined to those

included in the Act. As already discussed, these include the
requirement that the Minister approve prosecution policy, and
various duties on the NDPP to provide information and submit
reports to the Minister. The Act gives no power to the Minister
regarding the exercise of prosecutorial discretion in individual
cases. As such, individual decisions regarding whether or not to
prosecute in a particular case are not within the purview of the
Minister’s ‘final responsibility’. These rest in the exclusive
discretion of the prosecuting authority, and ultimately the National
Director.”

[90] I agree with this summary of the position. Pursuant to the imperative to
produce national legislation, Parliament has passed the NPA Act, which
provides in terms of section 22 for the NDPP as the head of the
prosecuting authority, to have authority over the exercising of all
powers, and the performance of all the duties and functions conferred
by the Constitution or that Act. Of particular interest in the present
enquiry is subsection (4) which provides that in addition to any other
powers, duties and functions conferred on the NDPP he may conduct
any investigation he may deem necessary in respect of a prosecution and
may direct the submission of and receive reports from a DPP in respect
of a case, a matter, a prosecution or prosecution process or directions.

[91] Section 32 provides a further indication of the desire of Parliament to

prevent interference, political and otherwise from the decisions to
prosecute. It provides for the impartiality of, and oath or affirmation by
members of the prosecuting authority. Subsection (1)(a) provides that a
member of the prosecuting authority shall serve impartially and carry
out his duties and functions in good faith and without fear, favour or
prejudice and subject only to the Constitution and the law. Subsection
(1)(b) provides a very strong imperative against interference with a
member of the prosecuting authority. It provides that no organ of state
or member of an organ of state not any other person shall improperly
interfere with, hinder or obstruct the prosecuting authority in the
exercise of its duties and functions.

[92] To enforce the seriousness of this prohibition on any interference by any

person from the President downwards section 4 provides that
contravention of that subsection is a serious offence and any person
contravening it shall be liable on conviction to a fine or to imprisonment
 8

for a period not exceeding 10 years or to both such fine and such
imprisonment.

[93] That there should be no political influence was trenchantly stated in S v

Yengeni 2006 (1) SACR 405 (T) at paragraph [51] where Bertelsmann
and Preller JJ observed:

“The Constitution guarantees the professional independence of

the [NDPP] and every professional member of his staff, with the
obvious aim of ensuring their freedom from any interference in
their functions by the powerful, the well-connected, the rich and
the peddlers of political influence.”

[94] What the learned Judges were saying in that case was that the
independence of the prosecuting authority is vital to the independence
of the whole legal process. If one political faction or sectional interest
gains a monopoly over its workings the judiciary will cease to be
independent and will become part of a political process of prosecution
of one particular targeted political enemy.”

11. Nicholson J then dealt with evidence of political interference which the NPA has now

confirmed in the affidavit Hofmeyr in the DA to which reference will be made further in

these submissions. Suffice for now that Nicholson J, with prophetic insight, found that

the Zuma prosecution was the subject of unlawful political interference of the nature that

stripped the prosecution of the lawfulness attribute.

[155] If there was a prima facie of serious corruption against the Deputy
President there were, in my view, no reasons of public policy why he
should have been prosecuted simultaneously with Shaik. Its failure to do
so brought justice into disrepute. The NDPP should either have charged
the applicant or made no mention of a prima facie case of corruption.
The applicant is effectively complaining that he was found guilty (at the
Shaik trial) in absentia: Shaik was convicted but the applicant was
dismissed as Deputy President. He puts up the speech by the President
which says:

“As Honourable Members would know, the judgment contains

detailed matters of fact and inference against which penalties have
been meted out. At the same time, proceedings pertaining to a
possible appeal to higher courts are still pending. However, the
judgment contains some categorical outcomes.
 9

These are that the court has made findings against the accused and
at the same time pronounced on how these matters relate to our
Deputy President, the Honourable Jacob Zuma, raising questions of
conduct that would be inconsistent with expectations that attend
those who hold public office.”

[156] The applicant complains of the legality of such a procedure. He says the
following

“Shortly before the 20th (on or about Sunday, 6 June 2005), I was
requested by the President of the RSA, through others to resign in
light of the Shaik judgment. The request at that time was hard to
justify on any legal basis.”

[157]…

…..

[163] In order to understand the background of the decision, firstly, not to

charge the applicant and, thereafter, to charge him, it is necessary to
understand the background and reasoning process. It is also necessary
to try and explore the reasons for these decisions to evaluate his right
to make representations. I have indicated that the cases show that he
must be given the gist of the reasons for the change of mind, otherwise
his right to make representations is illusory. Finally, of course, it is
necessary to decide whether the allegations of political meddling is
scandalous, vexatious and irrelevant as alleged in the strike out
applications.

12. From paragraphs 170 to 173, Nicholson J dealt with the political rivalry between

Mr Zuma and Mr Mbeki and how this had polarised the country to a point of political

instability. Of relevance is how the NPA was used to influence this political tussle in

favour of Mr Mbeki and against Mr Zuma. The allegations of political meddling, initially

denounced by the NPA as scandalous, vexatious and irrelevant, are now common cause

and evidence from the NPA itself. When Nicholson J made the findings on unlawful

political meddling, he did not have the benefit of the NPA’s evidence on that issue. The

SCA struck out the allegations of political meddling when the Nicholson judgment was

considered on appeal because it also did not have the benefit of the evidence of the NPA
 10

on political meddling. Nicholson J’s judgment read in the context of conceded evidence

of unlawful political by the NPA was correct in its findings.

“[174] We know that the decision not to prosecute him was for reasons totally
antithetical to the constitutional duties of the NDPP to make consistent, fair
and honest decisions without fear or favour and we are conscious of the
irrationality of charging the briber and not the recipient of bribes, but does
this alone show political conspiracy? One has to examine the decision not to
prosecute the applicant to ascertain whether it was made from fear or favour
and whether it was consistent.

[175] At first blush a decision not to prosecute the Deputy President of the country
appears to be as a favour to the second to 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. Those are allegations that the respondent seeks to strike out
of the record. Is there any evidence of this? Mr Ngcuka says that he and
Minister Maduna “informed the Deputy President about this investigation
shortly after it started”. That hardly constitutes proof of any interference.

[176] It is important to establish how extensive the political interference, influence

or pressure has to be to be recognised by the courts. In Sharma’s case
(supra), mentioned above, the Privy Council of the House of Lords in
England considered an appeal from the West Indies. The appellant was the
Chief Justice of Trinidad and Tobago and he was charged with attempting to
pervert the course of justice by trying to influence the decision of the Chief
Magistrate in a trial involving Mr Basdeo Panday, the Leader of the
Opposition and a former Prime Minister. Mr Panday was charged with
corruption and the Chief Justice had three meetings with the Chief
Magistrate during which he tried to influence the decision in favour of
Mr Panday.

[177] The prosecution authorities investigated the removal of the Chief Justice, in
terms of their constitution and the matter was placed in the hands of the
Deputy Director of Public Prosecutions. She brought a prosecution against
the Chief Justice for perverting the course of justice during his three meetings
with the Chief Magistrate, when he spent time trying to secure a result in
favour of Mr Panday. The Chief Justice brought an application to review the
decision to prosecute him and sought an order staying all action
consequential on that decision to prosecute. In other words, he was asking
the court to declare the indictment invalid. Had the Chief Justice been
successful with his application, the indictment would have been set aside and
 11

no further charges could be brought until the prosecuting authority had been
purged of the malign political influence.

[178] The Chief Justice in that matter alleged that there was improper, politically
motivated interference in the prosecution process against him i.e. the Chief
Justice, by the Prime Minister and the Attorney-General and the others,
including the Deputy Director who brought the prosecution.

[179] The Privy Council gave two separate judgments the main being by Lord
Bingham of Cornhill and Lord Walker of Gestingthorpe, who said the
following at 786 et seq

“The rule of law requires that, subject to any immunity and exemption
provided by law, the criminal law of the land should apply to all alike.
A person is not to be singled out for adverse treatment because he or she
holds a high and dignified office of state, but nor can the holding of such
an office excuse conduct, which would lead to the prosecution of one not
holding such an office. The maintenance of public confidence in the
administration of justice requires that it be, and be seen to be, even-
handed.

It is the duty of police officers and prosecutors engaged in the

investigation of alleged offences and the initiation of prosecutions to
exercise an independent, objective, professional judgment on the facts
of each case. It not infrequently happens that there is strong political
and public feeling that a particular suspect or class of suspects should
be prosecuted and convicted. This is inevitable, and not in itself harmful
as long as those professionally charged with the investigation of offenses
and the institution of prosecution do not allow their awareness of
political and public opinion to sway their professional judgment. It is a
grave violation of their professional and legal duty to allow their
judgment to be swayed by extraneous considerations such as political
pressure.”

[180] I would say that in South Africa it goes far beyond being a “grave violation
of their professional and legal duty [for prosecutors] to allow their judgment
to be swayed by extraneous considerations such as political pressure” as it
is a very serious criminal offense for which the Legislature has put a
maximum sentence of 10 years imprisonment for any breach.

…..

[182] An examination of the above passages posits that the test is therefore a
proscription of decisions to prosecute that are arrived at under political
pressure, or influence, or those that were motivated politically, rather than
 12

by an objective review of proper prosecutorial considerations. The South

African equivalents are of course the prosecution policy, the code and
directives I have already mentioned above. They posit a prosecution model
which is totally independent of political influence and which prosecutes
fairly, consistently and without fear or favour to anyone. I have already
indicated why the failure to prosecute the applicant was an egregious breach
of those principles.

13. From paragraphs 186 to 229 Nicholson J sets out succinctly the evidence of political

interference now conceded by the NPA as set out in the Hofmeyr affidavit deposed to in

the DA review application. In paragraph 229 is apt as it is now supported unequivocally

by the evidence of the NPA itself. Nicholson correctly concluded in the following terms:

“[229] Because of the political meddling I am of the view that the respondent did
not maintain his independence and was not in a proper position to carry out
his duties to honour the promise to hear representations or to respond
properly to the request to receive representations. I am not saying the
political meddling is a sufficient ground on its own to secure the relief at all.
That was not an issue in this application. What I leam is that it was legitimate
of the applicant to place it before the court to evaluate his rights to make
representations.

14. From paragraph 238 of the judgment, Nicholson dealt with the application to strike out

allegations relating to the biographical details of Mr Zuma, allegations of political

meddling and the material about his tax charges. He found that he could not exclude

political meddling and dismissed the application to strike out those allegations. Of

course, the SCA overturned this aspect. However, on the basis of evidence currently

available, there is no doubt that political meddling was involved in the investigation and

prosecution of Mr Zuma. The NPA says it. Downer himself says so.

15. As stated above, Nicholson J’s judgment was written as though he was a prophet – for

everything he said about the malignancy of political meddling in the Zuma investigation

and prosecution was finally conceded by the NPA itself and Downer. The new tact
 13

adopted by Downer and the NPA is to deny that political meddling affected the right to

fair trial, and therefore of no significance to whether the NPA continues to enjoy the title

to present evidence against Mr Zuma in the trial court. This new tact can only be

sufficiently addressed through oral evidence as will more fully be addressed further in

these submissions.

16. The Nicholson judgment stirred a political storm and on appeal was set aside in an SCA

judgment widely celebrated and relied on by the NPA as authority that improper or

unconstitutional objectives in a prosecution is largely irrelevant as a single ground for

impugning a prosecution. Whether the SCA judgment relied by the NPA for this position

is debateable. What is dealt with in this part of the submissions are comments made about

the conduct of the NPA for which it is submitted supports the contention relevant to the

debate on the issue of title to prosecute.

17. In National Director of Public Prosecutions v Zuma (Mbeki and another

intervening) [2009] 2 All SA 243 (SCA) the judgment of Nicholson was overturned.

The dispute between the NPA and Mr Zuma was described as follows:

“[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…”

18. On the political meddling, the SCA held that it was a non-contentious principle that the

NPA must not be led by political considerations and that ministerial responsibility over

the NPA does not give a Minister the right to interfere with a decision to prosecute. The

Court then said these uncontentious principles 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
 14

determined once criminal proceedings have been concluded. The motive behind the

prosecution is irrelevant because, as Shreiner 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.” This has very clumsily

been relied on by the NPA to justify conducting a prosecution in pursuance of

unconstitutional objectives. Downer and the NPA appear to have clung onto this

utterance by the SCA to wade off accounting for conducting a prosecution for clearly

unconstitutional and improper motives. We address this issue in detail further in these

submissions, but suffice that the SCA did not sanction prosecution for unconstitutional

or inappropriate objectives or motives when it made this finding. On its own terms, the

judgment does not say that improper prosecutorial motives are irrelevant for in paragraph

[38] of the judgment, the SCA immediately qualifies the statement by saying that “This

does not, however, mean that the prosecution may use its powers for “ulterior purposes.

To do so would breach the principle of legality.”

19. The evaluation of facts and evidence demonstrates that, not only has Downer breached

his duties as a prosecutor, to conduct a prosecution for unconstitutional or ulterior

purposes, he has been involved in a cover up of criminal acts or prosecutorial misconduct

relevant to the evaluation of whether the NPA is entitled to present evidence in a court

to prove the allegations against Mr Zuma.

20. In dealing with whether Ngcuka’s statement in announcing his decision not to prosecute

Mr Zuma, the SCA found that Mr Zuma had not alleged that the 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.”3 On the basis that these

3
Ibid, at para 41
 15

issues were not specifically raised by Mr Zuma, the SCA overturned the Nicholson

judgment. However, in this trial Mr Zuma specifically alleges that the prosecution is

unjustified and that Maduna acted inappropriately. There is no principle articulated on

which it can be suggested that the SCA condoned the unconstitutional abuse of

prosecution powers as evidenced by the NPA if the facts and evidence were properly

pleaded. The SCA’s major criticism of the Nicholson judgment was that it dealt with

issues not pleaded by Mr Zuma or that were not supported by credible evidence. Well in

this trial Mr Zuma has cured the malaise that was identified by the SCA when it

overturned the Nicholson J judgment.

21. In dealing with the sting of the statement of Ngcuka in his press conference announcing

that Mr Zuma would not be prosecuted, the SCA did not establish a principle that

sanctioned such conduct by the NPA in naming and shaming a suspect in a decision not

to prosecute. In fact, the principle that the SCA confirmed was 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. The terms

“prima facie evidence” has more than one connotation and may mean, as Mr Ngcuka

conveyed, that there may be evidence of a 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.”4

22. The stinging criticism of the SCA on the issue of political meddling is now irrelevant and

not binding on the trial court. There is clear evidence from the NPA itself that there was

unlawful and criminal political meddling in the prosecution process involving Mr Zuma.

The SCA would not have reached the conclusions that it reached in relation to political

4
Ibid, para 41
 16

meddling had it considered the evidence of Hofmeyr in the DA review application. There

is now clear evidence of political manipulation of the prosecution in order to achieve

political objectives – conduct which the SCA would regard as a breach of the principle

of legality. In fact, the SCA did not decide that there was no political meddling. It simply

found that there was no evidence of political meddling. Now those findings are of no

assistance to the NPA as they are irrelevant to whether the NPA’s evidence of political

meddling has properly been pleaded or as a fact exists. The NPA itself concedes that

there was unlawful political meddling in the NPA’s decision to prosecute Mr Zuma, the

nature of which was an abuse of the NPA title to prosecute.

23. In Zuma v Democratic alliance and Others 2018 (1) SA 200 (SCA), the Honourable

Court found that the decision of the NPA to discontinue the prosecution was unlawful

and reviewed that decision. Mr Downer and the NPA takes great comfort in this decision

to support the defence of res judicata and issue estoppel against the section 106(1)(h)

plea. These legal contentions are dealt extensively in separate set of heads filed on behalf

of Mr Zuma.

24. It is important to set out the critical parts of the judgment to demonstrate that even this

judgment shows that the NPA’s conduct in taking a decision to prosecute Mr Zuma was

unlawful. That cannot be used in favour of the NPA but of Mr Zuma. The findings of the

SCA support the contention that the NPA has lost its constitutional title or legitimacy to

present evidence against Mr Zuma as they drip in their hands with the blood of unlawful

conduct – at times criminal conduct. On the clean-hands doctrine, the NPA has lost its

title to conduct a lawful prosecution because it is impossible for it to prosecute in

accordance with the Constitution and the oath of office for prosecutors.

25. Far from supporting the res judicata point, the SCA judgment supports Mr Zuma’s
 17

contention that the NPA has, on a number of occasions, taken decisions about him that

are unlawful, or inconsistent with the title to prosecute, with the consequence that his fair

trial rights have been violated.

26. A summary of the judgement is necessary to make the point. As a starting point, the SCA

described the dispute between the NPA and Mr Zuma in the following terms:

[1] TS Eliot spoke of ‘the recurrent end of the unending’. The relevance of these
words will soon become apparent. Before us there are two applications for
leave to appeal, referred by this court for oral argument in terms of s 17(2) of
the Superior Court Act 10 of 2013. In referring the matter for oral argument,
this court directed the parties to be ready, if called upon to do so, to argue the
merits of the appeal. The two appeals were consolidated as they arise out of the
same facts…

[2] Eight years ago, in 2009, this court in National Director of Public Prosecutions
v Zuma 2009 (2) SA 277 (SCA) (2000) (1) SACR 361; 2009 (4) BCLR 393;
[2009] 2 SA 243; [2009] ZASCA (1) (hereinafter referred to as ‘Zuma’) stated
the following in para 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.”

Save for what is set out below, the litigation history up to that point is recounted
in that case. …Much of the litigation followed, culminating in the matter
presently before us. Unlike instances in the past, in the present case the National
Prosecuting Authority (the NPA) and Mr Zuma made common cause.

[3] The current applications are part of a continuing litigation saga that has
endured over many years and involved numerous court cases. It is doubtful that
a decision in this case will be the end of the continuing contestation concerning
the prosecution of Mr Zuma. ….

[4] The South African public might well be forgiven for thinking that the description
at the beginning of the judgment was coined to deal with the prosecution or
latterly, more accurately the non-prosecution of Mr Zuma. I shall in due course
deal with the nature and import of the concessions made by both the NPA and
counsel on behalf of Mr Zuma
 18

27. Although accepting that the concessions made by the NPA and Mr Zuma would

ordinarily be the end of the matter, the court found it its task to deal with aspects in the

facts in respect of which “judicial comment” (para 5) was necessary. It therefore made

judicial comment on aspects that it found were strictly necessary to make. The paragraphs

relevant to assessing the conduct of the NPA are found in 63 – 95 of the judgment. They

will be referred to in oral argument. In essence, the court criticised the conduct of what

it referred to as law enforcement agencies of government who, it appeared from the

evidence, were “spying upon each other. In so far as the tape recordings of the telephone

conversations were concerned, other than the hearsay evidence of the communications

between members of NIA and the NPA, we have no admissible substantiation concerning

the authenticity or accuracy of the recordings.” This judicial comment was made despite

the NPA accepting the authenticity of the recordings. The court criticised the NPA’s

position and referred to it as “submission by the threat of the use of recordings, the

legality of the possession of which is doubtful.” (at para 63). But, of course the NPA never

said that it had been cowed into submission by such threats. It maintained that it had

independently verified the facts and reached its conclusions independently and without

any threats from anywhere regarding information that was relevant to whether there had

been an unlawful abuse of prosecutorial powers or title.

28. In paragraph 64, the SCA, out of “concerns” about the nature and substance of

Mr Hofmeyr’s affidavit, asked in particular why Mr Mpshe, the decision-maker was not

the principal deponent. The reasons for this are set out and summarised in paragraph 65

of the judgement. But of critical concern is the SCA’s finding that a “careful

consideration of Mr Hofmeyr’s affidavit reveals that much of it is based on conjecture

and supposition.” That the NPA could allow a deponent to file an affidavit in its name

with information that is false in that it was conjecture and supposition is itself
 19

demonstrative of the gravity of the NPA’s offense in the prosecution of Mr Zuma. A few

examples are referred to in the judgment on paragraph 67 to 75 which the SCA found

amounted to conjecture and speculation. This is not to say such information was false

and Mr Hofmeyr has subsequently indicated under oath that he stood by everything he

said in the affidavit.5 Whether this evidence of the NPA is conjecture or supposition

should be tested through cross-examination in oral evidence when the trial is ordered by

this court.

29. The trial court is of course entitled to have the evidence of the NPA tested through cross-

examination. The SCA appears to have sought to extricate McCarthy from the allegations

made against him in the Hofmeyr affidavit, but it is immediately not clear on what basis

that was possible. In any event, where there is a dispute on the facts, it relates to the

conduct of the NPA and therefore relevant to whether the NPA’s conduct meets the

constitutional standard required for conducting a lawful prosecution.

30. In paragraph 80 of the judgement, the SCA makes the following findings about the NPA.

[80] The picture that emerges from the documents filed in the court below is of an
animated Mr Hofmeyr, straining to find justification for the discontinuation of
the prosecution. Mr Hofmeyr discounted the objective facts set out in [34],
namely that the indictment after the Polokwane conference would ultimately
and conclusively have impacted more severely on Mr Zuma than if it had been
served before the conference….”

31. It is equally unclear on what evidence the SCA could have found that Zuma stood to

benefit from being served with an indictment at any time – whether prior to or after the

Polokwane conference. What is clear though is that the SCA itself speculated on the

benefits to Mr Zuma regarding the timing of the indictment for there is no objective

5
See transcript of his evidence at the Jiba hearing
 20

evidence on which it could be concluded that Mr Zuma was a beneficiary of the NPA’s

unlawful and incompetent handling of its duties.

32. Thereafter in paragraph 81 the SCA went on to make scathing remarks about what it

constantly referred to as the Hofmeyr’s affidavit as opposed to the NPA’s affidavit:

[81] … He is an experienced litigator who should know better than to present the
case in the manner described above. Professedly advancing the cause of the
NPA’s independence and integrity, he achieved exactly the opposite. One now
has a better appreciation of the reluctance of counsel on behalf of the NPA to
be associated with the affidavits on its behalf.” (Own emphasis.)

33. On Mr Mpshe, the then Acting NDPP, the SCA reserved the harshest criticisms that can

ever be made against a person in his position. In essence this is why the NPA cannot be

said to hold the constitutional credentials that entitle it to present evidence against

Mr Zuma. We quote them below.

[84] It appears to me to be inimical to the preservation of the integrity of the NPA

that a prosecution is discontinued because of a non-discernible negative effect
of the timing of the service of an indictment on the integrity of the investigation
of the case and on the prosecution itself. There is no rational connection
between Mr Mphse’s decision to discontinue the prosecution on that basis and
the preservation of the integrity of the NPA. If anything, the opposite is true. In
these circumstances discontinuing a prosecution in respect of which the merits
are good and in respect of which there is heightened public interest because of
the breadth and nature of the charges and the person at the centre of it, holding
the highest public office, can hardly redound to the NPA’s credit or advance
the course of justice or promote the integrity of the NPA.

[85] The court below was right to take into account against Mr Mphse, the
contradictory accounts as to who made the decision to delay the service of the
indictment. It does not assist Mr Mpshe to explain that he had lied to
Mr Downer in telling him that he alone had made the decision to delay the
service of the indictment, when in fact it was Mr McCarthy who had made that
decision. If anything affects the integrity of the NPA, it is an ANDPP lying to a
senior prosecutor. The admitted deception compellingly affects the credibility
of Mr Mpshe’s motivation for discontinuing the prosecution.
 21

34. The SCA’s description of the NPA’s unlawful conduct is inexplicably benign. For

example, the timing of a prosecution must be done in a lawful manner. It is as important

in the prosecution process as the charging of the suspect, because the timing tells of the

following key prosecution steps in a lawful prosecution: (i) that the investigation has

been completed (ii) that the NPA is in a position to charge the accused person (iii) that

there is probable cause for the NPA to charge the accused person. When there is unlawful

interference with the when-to- charge stage, such interference is not insignificant to

evaluating whether the NPA has violated fair trial rights. As in this case, the NPA was

not ready to charge Zuma until after the Msimang judgement in 2005.

35. The SCA went to find that the part of the media statement announcing the termination

decision was had been plagiarised from a judgment in HKSAR without considering

whether it was applicable.

36. Further scathing comments were made in relation to the NPA’s submission that it had a

duty to terminate a prosecution on the abuse of process doctrine. It found that it “is in the

interest of the NPA, the accused persons and the public’s confidence in the

administration of justice, that decisions concerning allegations of abuse of process be

made by a trial court.” (para 91). In paragraph 92 the court then made its judicial sting

even more painful when it observed in horror that:

“In light of what is set out in the proceeding paragraphs, it beggars belief that
the present regime at the NPA, on its own version of events, saw fit to defend
Mr Mpshe’s decision as being rational.

37. In the S v Shaik judgements6 the Court found that there was a generally corrupt

relationship between Shaik and Zuma. In essence Mr Zuma has already been convicted

6
Insert all the judgments on Shaik
 22

of the crime of corruption in his absence. This conviction was as a consequence of the

NPA’s prosecutorial decision in terms of which, although in possession of prima facie

evidence (Downer having advised the then NDPP that the evidence was such that there

was a reasonable prospect of conviction) it would prosecute Mr Zuma together with

Shaik. In a memorandum to the NDPP, Advocate Pikoli, Downer makes it clear that the

trial of Shaik was essentially a trial run for Mr Zuma. While Downer denied this in his

affidavits, such denial cannot stand the evidence of his own memorandum where his

assessment of the strength of the case against Mr Zuma is based on the Shaik judgment

and the successes Mr Downer enjoyed in that case.

FINDINGS OF THE PUBLIC PROTECTOR AGAINST THE NPA

38. As a consequence of the prejudice that Mr Zuma had been exposed to, due to the NPA’s

prosecutorial misconduct, he lodged a complaint with the Public Protector on 30 October

2003. His complaint was the following:

38.1. Manner in which the criminal investigation against him was conducted;

38.2. Leaking to the media by the NPA of confidential information relating to the

criminal investigation against him;

38.3. Failure by the NPA to inform him of the criminal investigation against him;

38.4. Public statement by the NDPP that there was prima facie case of corruption

against him but not winnable in a court of law;

38.5. Apparent continuation of criminal investigation after it was decided not to

prosecute him;

39. The Public Protector’s investigation coincided with the Hefer Commission of Enquiry
 23

into allegations of spying against the NDPP. At the conclusion of the Hefer Commission,

President Mbeki noted the remarks of the Hefer Commission regarding the leaks of

confidential information by the NPA and commissioned an internal investigation which

found the following;

39.1. Nothing that suggested that the NDPP could have been party to the leaks and;

39.2. Strong circumstantial evidence that privileged information found its way to

unauthorised persons outside its structures.

40. The recommendations made to prevent the leaks were the following:

40.1. Develop as a matter of urgency, a proper security management system that

meets the accepted standards of information security. This should include

guidelines to ensure that no privileged information lands in the hands of

“sources” used in the course of investigation;

40.2. Ensure that all personnel of the NPA, including external consultants are properly

screened in terms of section 19B of the NPA and the Intelligence Service Act,

1994;

40.3. Ensure that the Ministerial Coordinating Committee, established in terms of

section 31 of the NPA Act urgently attend to all matters of relationships between

the DSO and other Intelligence and security institutions to improve effective

coordination in the performance of their functions.

41. The Public Protector limited the scope of his investigation to the effect of Mr Ngcuka’s

statement that the NPA had in its possession prima facie evidence of corruption against

Mr Zuma but would not be prosecuting him. The Public Protector found that the Minister
 24

and the NDPP refused to cooperate with his investigation claiming that the matters under

investigation were sub judice. This was despite the fact that the NDPP had specifically

indicated that he was not prosecuting Mr Zuma and the rule was inapplicable.

42. The Public Protector found that the NPA had violated the UN Guidelines on the Role of

Prosecutors, the NPA Act and the Prosecution Policy in issuing a public statement in the

terms that the NDPP had.

43. The Public Protector also found that the NDPP and the Minister’s failure and refusal to

cooperate with his investigation into their conduct was improper and unconstitutional.

44. The Public Protector also found that the press statement made by the NDPP on 23 August

2003, that there was a prima facie case of corruption against Mr Zuma, but that he would

not be prosecuted, “unjustifiably infringed upon Mr Zuma’s constitutional right to human

dignity and caused him to be improperly prejudiced” and that the press statement was

unfair and improper.

45. The Public Protector then issued remedial action in terms of the Constitution and the

Public Protector Act to ‘ensure that the NDPP and the NPA were held accountable, by

virtue of the provisions of sections 41(1) and 181(3) of the Constitution and section 35

of the NPA Act, for the following transgressions:

45.1. Failing to cooperate with the Public Protector in the investigation of the

complaint of Mr Zuma;

45.2. Infringing upon Mr Zuma’s constitutional right to human dignity and thereby

causing him to be improperly prejudiced and

45.3. Acting in an unfair and improper manner in regard to Mr Zuma.

 25

46. The NPA has never challenged the lawfulness or rationality of the findings made in the

report of the Public Protector. The prosecution is therefore being conducted in

circumstances where a constitutional institution, the Public Protector, has made a

definitive finding of unconstitutional conduct on the part of the NPA and the NDPP.

Downer is aware of these findings which are relevant to the question of whether the NPA

is able to conduct a lawful prosecution against Mr Zuma, the very person whose

constitutional right it has violated.

THE KHAMPEPE COMMISSION INVESTIGATION INTO THE MANDATE AND

LOCATION OF THE DSO

47. In 2006, President Mbeki established what came to be known as the Khampepe

Commission to conduct an investigation and report on the lawfulness of the DSO and its

mandate. In the executive summary, the report says that “the evaluation of the

implementation of the mandate of the DSO, the evidence tendered before the Commission

raised a number of concerns relating to the manner in which the DSO discharged its

mandate. The evidence pointed to numerous incidence of DSO conduct which went

beyond the legislative mandate of the DSO or threatened to do so. In instances, the

shared legal mandate with the SAPS gave rise to unfortunate competition over territory.

The unhappy relationship between the DSO and the other law enforcement agencies was

exacerbated by the malfunctioning of the Ministerial Co-ordinating Committee. This

body did not do what section 31 of the NPA enjoined it to do. Under the previous Minister

of Justice, it did not convene, alternatively, there was no evidence that it convened. It is

recommended that this committee be mandated to effectively perform its functions.”

(page 9-10 of the report)

48. This Ministerial Co-ordinating Committee is the one referred to in the report of the Public
 26

Protector in 2004 who had similar findings against the NPA and made the following

remedial action which it was anticipated would prevent the NPA from perpetrating

constitutional violations against Mr Zuma – ‘ensure that the Ministerial Co-ordinating

Committee established in terms of section 31 of the NPA Act urgently attend to all

matters between the DSO and other intelligence and security institutions to improve

effective coordination in the performance of their functions.’ (p. 95 of the record).

49. Justice Khampepe made the following findings in relation to the Ministerial Co-

ordinating Committee:

49.1. It is regrettable that the Commission was not favoured with a plausible

explanation why the Ministerial Co-ordinating Committee ostensibly did not

properly discharge its responsibility under the Act. This finding was made in

2006 – two years after the Public Protector had directed the Committee to take

steps that would ensure that there was lawful oversight and accountability in the

investigation and prosecution processes of the DSO and the NPA.

49.2. The failure of the Committee to perform its duties exposed ordinary persons –

Mr Zuma – in particular to subsequent blatant unlawful conduct by the DSO

that was highly prejudicial to him, i.e. the Browse Mole Report.

49.3. Paragraph 18 of the Khampepe reports record a very disturbing feature under

which Mr Zuma’s investigation prosecution was done. The first is that the

NDPP failed to comply with the provisions of section 19B in that some of the

special investigators of the DSO were not vetted by National Intelligence

Agency as required by the Act. The second on this non-compliance with the law

is that the head of the DSO (McCarthy) “although conceding to such non-

compliance nevertheless sought to explain how it came about. His evidence that
 27

everything under the law to ensure that its operatives are properly vetted was

done, was unconvincing. There can be little debate that the practice is

unacceptable and may ultimately prove to undermine the security of the state. I

therefore find that the DSO has not complied with the provisions of section 19B

of the NPA Act. That duty, strictu sensu lies squarely on the shoulders of the

National Director and not on the head of the DSO.”

49.4. Section 19B of the NPA Act required that persons who perform their functions

in the DSO, as special investigators, must undergo security screening so as to

protect the nature of the information that they came across in the discharge of

their functions. The Commission’s finding is directly relevant to the issue of

how the DSO compiled the Browse Mole Report and obtained Mr Zuma’s

private information regarding tax and bank accounts. It calls into question

whether Mr Zuma’s investigation was conducted by investigators who were

lawfully appointed. The inference of the findings of the Commission is

inescapable that the investigators appointed to investigate Mr Zuma were not

lawfully appointed and their work was performed without any controls

necessary to safeguard information obtained about Mr Zuma. This failure

enabled the production of the Browse Mole Report by the DSO.

49.5. In paragraph 18.6. Justice Khampepe specifically recommended that the NDPP

be strongly reprimanded for his failure to adhere and monitor adherence to the

requirements of section 19B of the NPA Act. In fact, it is unsurprising that

Mr Pikoli, the NDPP was subjected to an inquiry which recommended his

removal for amongst others, a failure to appreciate the legal and security risks

of appointing investigators without complying with the law.

 28

49.6. Justice Khampepe also observed that the “risks sought to be covered by the

provisions of this section must extend to external contractors, who equally come

to consider the information sought to be protected under this section”. This was

because the NPA and DSO appointed external contractors to consider

information obtained by the DSO investigators – without being vetted.

49.7. In paragraph 18.9 of the Justice Khampepe found “evidence pointing to the fact

that the DSO has liaisons with foreign law enforcement and intelligence

structures. If nothing else, this illustrates the dangers that lie in the conduct of

the DSO stretching its “information gathering” mandate to include

“intelligence.” She held definitely that such conduct compromised the security

of the state as the DSO members had no requisite training in intelligence.

50. In paragraph 19, Justice Khampepe found that there was evidence suggesting that the

DSO, in the discharge of its legislative mandate, did so through the use of unvetted

private sector entities which are thereby likely to come into contact with sensitive

intelligence. When the law required that specific categories of personnel within the DSO

must undergo security clearance, by NIA, it was the responsibility of the DSO to comply

with that legislative injunction. The Browse Mole Report was created through these

unlawful channels opened by the DSO’s incompetence or blatant disregard of the law in

section 19B of the NPA Act.

51. In paragraph 20.5 of the report, Justice Khampepe found that the Head of the DSO,

McCarthy, “also admitted that there were unwarranted disclosures that were made from

within their ranks. His view on the matter was that there should be no disclosures prior

to the accused appearing in court except in exceptional circumstances.” In paragraph 21

Justice Khampepe found that there had been a myriad of justified public complaints
 29

relating to the leaking of information by the DSO. She concluded that the “improper

media sensation associated with the investigation and/or arrest of some individuals

resulting from leaks in the DSO may open a practise that is inconsistent with the right of

a fair trial guaranteed under section 35 of the Constitution.” There is clear evidence that

inappropriate leaks violated and undermined Mr Zuma’s rights.

52. In paragraph 21.4 Justice Khampepe found that the DSO “in its aforementioned conduct

not seem to have acted properly and lawfully in exercising its powers and failed to

construe those powers in the light and spirit, purport and object of the Bill of Rights.”

53. The judge further found that there “is merit in the concern raised in evidence relating to

the alleged abuse by the DSO with regard to the manner which it publicises its work in

the media.” She accepted that the DSO acted as “a law unto itself”, urging that its conduct

possibly violated the rights and freedoms protected under the Bill of Rights. It appears

that McCarthy indicated to Justice Khampepe that the conduct of the DSO was “a subject

of an on-going focused “sensitive inquiry”. No record has been given of this “sensitive

inquiry”. However, the judge described the DSO conduct to “out of kilter with our

Constitution, reprehensible, unprofessional and corroding the public’s confidence in the

law enforcement agencies.” (para.21.6)

54. Justice Khampepe investigated the intelligence operations of the DSO and made stinging

finding in paragraph 23 of the report. In paragraph 24 of the report, it was found that the

“welter of evidence before the Commission as well as the on-site visit to the DSO

revealed that the DSO has established intelligence gathering capabilities. This goes

beyond the ambit of its information gathering mandate set out in section 7 of the NPA

Act. When McCarthy handed the Browse Mole report to Pikoli, he immediately informed

him that it was not within the mandate of the DSO to conduct intelligence operations. He
 30

ordered him to stop the investigations immediately as these activities were clearly illegal.

The extent of unlawfulness and whether it affected the fair trial rights and related

constitutional rights of Mr Zuma has not fully been explored. What is clear though is that

these unlawful activities of the DSO powered the NPA’s prosecution of Mr Zuma. These

unlawful intelligence activities of the DSO were known by the NPA which did nothing

to stop them but utilised the information unlawfully obtained through intelligence

methods to shape the prosecution of Mr Zuma.

CONCLUSION

55. There is no court that has not heaped unpleasant criticisms against the NPA’s failure to

conduct itself in accordance with its constitutional title. There are findings of a Chapter

9 institution that are binding on the NPA in which it is clear that the NPA acted

unlawfully in relation to Mr Zuma’s constitutional right to a fair trial. Then there is the

evidence of the NPA’s own assessment of its conduct which cannot be controverted by

Mr Downer. Mr Downer’s attempt to forestall the reliance on the NPA’s evidence of

prosecutorial misconduct is evidence of a cover up of relevant evidence. In oral evidence,

the true constitutional impact of the NPA’s conduct must be tested through cross-

examination including Mr Downer’s own evidence against that of the NPA.

THE NPA’S OWN EVIDENCE ON ITS PROSECUTORIAL MISCONDUCT

56. Despite what the SCA said about the evidence of the NPA on prosecutorial abuse of

process in the DA review application, that evidence of the NPA remains relevant and

valid in determining whether the NPA retains the title conferred on it by the Constitution

to conduct a criminal prosecution against Mr Zuma. The evidence of the NPA in the DA

review application was evaluated on a civil law standard of balance of probabilities and

not the criminal law standard of beyond a reasonable doubt and subjected to cross-
 31

examination. What is equally clear, and despite the absence of cross-examination, the

evidence submitted for its decision to terminate the prosecution has never been disowned

or abandoned by the NPA. In fact, Hofmeyr stands by that evidence and regretted that

the NPA had failed to appeal the SCA judgement to the Constitutional Court. The trial

court is entitled to conduct its own evaluation of the evidence by directing that a full

enquiry be made on that evidence of the NPA of gross abuse of prosecutorial powers and

processes. It is not sufficient that the SCA criticised the NPA’s evidence as conjecture

and speculation. Mr Zuma’s own evidence of his experience of this political meddling

has not been evaluated and is largely consistent with that set out in the NPA’s affidavit.

57. Alternatively, based on the NPA’s evidence, this trial court must hold that the NPA’s

conduct is so egregious to have disentitled it the duty to present evidence against

Mr Zuma. The trial court cannot ignore this evidence despite Mr Downer’s spirited

defence in seeking to devalue it or disown it on behalf of the NPA. In essence, with

Mr Downer’s evidence on prosecutorial misconduct, the Court has two version that are

mutually destructive of each other and irreconcilable. On the one hand it has the evidence

of Mr Downer in which he says that there is no evidence of political meddling,

alternatively that such political meddling as may be found was insignificant to affect the

integrity of the prosecution. On the other hand, is evidence from two members of the

NPA more senior to Mr Downer – Mpshe and Hofmeyr specifically setting out, in very

clear terms that there was evidence of political meddling and criminality in the NPA’s

prosecution processes, the nature of which justified terminating the title to prosecute the

case. These two NPA versions are irreconcilable. But more importantly, the two versions

demonstrates that the NPA has lost its constitutional legitimacy to represent the people

or the State in conducting a constitutionally sanctioned prosecution against Mr Zuma.

 32

Mr Mpshe’s decision to terminate the criminal proceedings

58. When Mr Zuma made representations to the NDPP of evidence of criminal abuse of the

prosecution system, the NPA was obliged to act in order to, not only protect the integrity

of its constitutional processes, but to protect the constitutional rights of the accused who

had been a victim of prosecutorial abuses and also in the public interest. The NDPP

realised that he had a constitutional obligation to deal with the evidence of criminal abuse

of the NPA’s constitutional position. He was correct to take a position – and had he relied

on the correct provisions of the NPA Act, and submitted that evidence of criminal abuse

for an order withdrawing the charges against Mr Zuma, this matter would have ended

then.

59. In this criminal trial, the evidence of criminal abuse of the prosecutorial processes and

the NPA’s response to it, is a relevant starting point which must be a subject of a trial in

terms of section 108 of the CPA. Based on the NPA’s own admitted evidence of

prosecutorial abuse, Mr Downer is not entitled to prosecute in the sense that he can have

no title from the NPA to prosecute a matter in which it has found, is characterised by

gross abuse of prosecutorial status, powers and authority. The nature of the misconduct

is criminal. There is no evidence, other than the termination of the prosecution which has

now been overturned by the SCA, that the NPA did anything to purge this most stinking

stain on its constitutional title.

DISCUSSION ON TITLE TO PROSECUTE

60. In terms of s 106 of the Criminal Procedure Act 51 of 1977, an accused who pleads to a

charge may plead any one or more of a range of pleas (s 106(1)(a)–(i)). Included in this

list is the plea that the prosecutor has no title to prosecute (s 106(1)(h)). Such a plea

attacks the prosecutor’s locus standi to conduct a prosecution. Where prosecutions by the
 33

state are concerned, the courts have held that the term ‘the prosecutor’ in s 106(1)(h) is a

reference not to the state but to the person who acts as prosecutor in court (Ndluli v

Wilken NO 1991 (1) SA 297 (A)). This position was made more lucidly in a recent High

judgment in S v Moussa Sylla of Strydom J in the Gauteng Local Division. We attach a

copy of the judgment to these submissions as “X” for ease of reference.

61. The objection raised by such a plea is an objection to the right or authority of that

individual to act as prosecutor in the case (at 306C-D). This was precisely the objection

raised by the appellants in Porritt v NDPP 2015 (1) SACR 533 (SCA) which concerned

an appeal to the SCA against a decision of the court below not to acquit the appellants

despite upholding their plea for the removal of the prosecutors in their trial.

62. In Ndluli v Wilken en Andere (378/89) [1990] ZASCA 107; 1991 (1) SA 297 (AD);

[1991] 1 All SA 256 (A) (27 September 1990) the Court cited with approval from

textbooks by legal academics on the origin of the lack of title plea. The Court

cited Gardiner and Lansdown.; "South African Criminal Law and Procedure"

6th Edition, Vol 1 on p 365 which states:-

"That the person who appears to present the case to the Court on behalf of the
Attorney-General or private prosecutor has no locus standi, or is not in the
particular case properly authorized, is not a subject of this plea although it
might form the ground of an allegation of irregularity in the proceedings. What
is meant by the plea is that the Queen, or the private prosecutor in the matter,
has no authority to claim the punishment of the alleged offender in respect of
the particular offence charged."

63. It also cites another author, "Swift's Law of Criminal Procedure" 2nd Edition on p 286, -

"The substance of this plea is that the accused denies the ability of the prosecutor, i.e.

the ' State or the private prosecutor, to claim a conviction in respect of the offence with

which the accused is charged."

 34

64. Philips v Botha, 1995 (2) SACR 228 (W) concerned the standing of a private prosecutor

to conduct a prosecution, which the Attorney-General had declined to prosecute. The

crux of the dispute was whether the appellant had shown, as s 7(1)(a) of the CPA requires,

a “substantial and peculiar interest in the issue of the trial arising out of some injury”

which he had suffered in consequence of an alleged fraud. In an obiter dictum the court

stated the following:

‘. . . It seems to me that the failure to take objection by way of pleading to a

charge does not prevent an accused from raising it thereafter. Absence of title in
the prosecutor is fundamental to the proceedings, a jurisdictional void . . . since
the statute only recognises and empowers persons who possess the specified
attributes. Accordingly, if the magistrate was correct in his conclusion, his
judgment was as effective as if it had been given pursuant to a plea to the private
prosecutor's title. The proceedings are not a nullity when such a plea is upheld
since s 106(4) provides that the accused is entitled to demand that he be
acquitted, as the magistrate did.’[Ibid 231H-232C]

65. When exactly does such a “jurisdictional void” in the title of the prosecutors arise?

In Delport and Others v S (861/13) [2014] ZASCA 197; [2015] 1 All SA 286 (SCA);

2015 (1) SACR 620 (SCA) (28 November 2014) the SCA stated:

“[32] Properly understood the dispute in this case, however, is not over the
prosecutors’ standing to prosecute but about whether they were properly
appointed and authorised to prosecute. And even if I accept for present
purposes that s 106(1)(h) may be invoked not only where the standing of a
prosecutor is in issue[1] but also where it is asserted that the appointment is
irregular, it does not follow that an accused is entitled to demand an acquittal
in terms of s 106(4), as was suggested in Philips v Botha, and relied upon by
the magistrate in this case.

[33] Section 106(4) provides that an accused who has pleaded to a charge,
other than a plea that the court has no jurisdiction to try the offence, or an
accused on whose behalf a plea of not guilty is entered by the court, shall unless
provided for differently in this Act or any other law, be entitled to demand that
he be acquitted or convicted. The section operates in favour of an accused who
has pleaded to a charge.”

66. In Singh v Minister of Justice and Constitutional Development and

 35

Another (5072/05) [2006] ZAKZHC 20 (5 May 2006) the Court states as follows:

“The provisions of section 106(1)(h) of the Act do not in my view help

Mr Blomkamp's contention as Section 106(l)(h) of the Act is also of application
when it is contended by an accused that the prosecution constitutes an abuse of
the Court's process. Roper J in Solomon v Magistrate, Pretoria &
Another 1950 (3) SA 603 (W) dealt with this point as follows at 607F-H :

"The process of the Court, provided for a particular purpose, would be

used not for that purpose, but for the achievement of a totally different
object, namely for the oppression of an adversary. The Court has an
inherent power to prevent abuse of its process by frivolous or vexatious
proceedings (Western Assurance Co. v Caldwell's Trustee (1918, AD
262); Corderoy v Union Government (1918, AD 512 at 517); Hudson v
Hudson & Another (1927 AD 259 at 267)), and though this power is
usually asserted in connection with civil proceedings it exists, in my
view, equally where the process abused is that provided for in the
conduct of a private prosecution. In such a case as I have postulated,
therefore, this Court would in my opinion by virtue of its inherent power
be entitled to set aside a criminal summons issued by its own officials or
to interdict further proceedings upon it."

67. This principle was confirmed in the judgment of Hoextcr JA in Phillips v Botha 1999(2)

SA 555 (SCA) where after referring to extracts from the judgment of Roper J in Solomon

v Magistrate, Pretoria & Another (supra) the learned Judge of Appeal remarked as

follows at 565G-I:

"Where the Court finds an attempt made to use for ulterior purposes machinery
devised for the belter administration of justice it is the Court's duty to prevent
such abuse. This power, however, is to be exercised with great caution and only
in a clear case. (See Hudson v Hudson & Another (supra) at 268).

68. The question is whether the private prosecution of the respondent was either instituted or

thereafter conducted by the appellant for some collateral and improper purpose, such as

the extortion of money, rather than with the object of having criminal justice done to an

offender.
 36

INTERPRETING TITLE TO PROSECUTE WITHIN THE CONSTITUTION

69. It is now well-established that the Constitution directs how courts must interpret

legislation that guides administrative agencies whose constitutional role involves the

application and interpretation of the Bill of Rights. The Constitutional Court has

established how our courts must approach statutes that have a bearing on the Bill of

Rights such as the CPA.7 The Constitutional Court endorses the purposive approach to

the statutes that have a bearing to the interpretation of those rights. The Constitutional

Court’s approach represents the spirit and purport of the law, the Constitution and more

especially, the values enshrined in the Bill of Rights. Article 1 of the Constitution states

that the Republic of South Africa is one, sovereign, democratic state founded on the

values of:

69.1. Human dignity, the achievement of equality and the advancement of human

rights and freedoms.

69.2. Non-racialism and non-sexism.

69.3. Supremacy of the Constitution and the rule of law.

70. Section 2 (the supremacy clause) expressly states that this “Constitution is the supreme

law of the Republic; law or conduct inconsistent with it is invalid, and the obligations

imposed by it must be fulfilled” (emphasis added). This article makes it clear that the

Constitution is to be enforced through the courts, to ensure that any “law or conduct” is

7
In Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd
and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC),
Langa DP had an occasion to consider the meaning of s 39(2) and he opined as follows: ‘The purport and objects
of the Constitution finds expression is s 1, which lays out the fundamental values which the Constitution is
designed to achieve.’ In Makate v Vodacom Ltd 2016 (4) SA 121 (CC), the CC had to consider the provisions of
the Prescription Act 68 of 1969. Jafta J recognised the significance of s 39(2) when dealing with pre-constitutional
precedent. See also Turnbull-Jackson v Hibiscus Coast Municipality and Others 2014 (6) 592 (CC); MEC, Health
and Social Development, Gauteng v DZ [2017] ZACC 37 from paras 30;
 37

“consistent” with the terms and duties it entails. A Court interpreting these provisions in

the face of a criminal acts and prosecutorial misconduct fails in its duty if it starts from

the premise that the “motive” for the prosecution is irrelevant.

71. Courts are given explicit instruction in section 39(1)(a) of the Constitution which reads:

"When interpreting the Bill of Rights, a court, tribunal or forum must promote the values

that underlie an open and democratic society based on human dignity, equality and

freedom." Courts are further reminded to keep these values – which crop up frequently

in South Africa's constitutional law – at the front of their minds when dealing with the

Bill of Rights.

72. Section 7 states the Bill of Rights is a cornerstone of democracy in South Africa. It

enshrines the rights of all people in our country and affirms the democratic values of

human dignity, equality and freedom. Further “[t]he state must respect, protect, promote

and fulfil the rights in the Bill of Rights.” Every person holding public office, including

Judges, are required to “respect, protect, promote and fulfill the rights” contained in the

Bill of Rights. Section 7(3) recognizes that “the rights in the Bill of Rights are subject to

the limitations contained or referred to in section 36, or elsewhere in the Bill.” Section

8 (1) stipulates that “[t]he Bill of Rights applies to all law, and binds the legislature, the

executive, the judiciary and all organs of state.” Thus, no Court is permitted to trivialize

the violation of the rights enshrined in the Constitution and to adopt the attitude of the

“end justifies the means” when it comes to prosecutorial misconduct.

73. Section 9(1) states that “[e]veryone is equal before the law and has the right to equal

protection and benefit of the law.” Section 9(2) clearly states that: “Equality includes the

full and equal enjoyment of all rights and freedoms.” Section 9(3) states: “The state may

not unfairly discriminate directly or indirectly against anyone on one or more grounds,
 38

including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour,

sexual orientation, age, disability, religion, conscience, belief, culture, language and

birth.”

74. The various decisions of the NPA to prosecute or not to prosecute appear to have violated

this provision – for at the helm of the prosecutors, the prosecution of Mr Zuma was a

special project because of his political status. The fact that he was the deputy President

of the Republic influenced Ngcuka’s decision not prosecute even though the NPA had

prima facie evidence of criminal wrongdoing. This too appears to have concerned

Mr Downer who counseled against considering political factors for the purpose of

conducting a lawful prosecution. Similarly, Mr Pikoli’s decision to prosecute Mr Zuma

was reported to politician including then President Mbeki. In fact, there is no better

evidence than the evidence of Mr Downer and the NPA, for the fact that Mr Zuma’s

political status was a factor in considering whether to charge him and on what charges.

Viewed in the context of the equality provisions, it is mandatory for the trial Court to

examine the evidence on the NPA’s decisions on to determine whether they have not

breached section 35(3) constitutional rights.

75. The Court is also obligated to deal firmly and thoroughly with evidence showing that

Mr Zuma’s prosecution was marred by ethnic discrimination in which he was referred to

as a “Zulu boy”, a “Zulu bastard”, as well as any other ethnically and culturally

demeaning and abusive epithets. The Court is also constitutionally obligated to subject

to persecution the NPA’s collaboration with foreign intelligence agencies such as the

COA (not law enforcement agents) in Zuma’s prosecution.

76. Section 10 states that: “Everyone has inherent dignity and the right to have their dignity

respected and protected.” Section 12 states that everyone has the right to freedom and
 39

security of the person, including the right:

76.1. not to be deprived of freedom arbitrarily or without just cause;

76.2. not to be detained without trial;

76.3. to be free from all forms of violence from either public or private sources;

76.4. not to be tortured in any way; and

76.5. not to be treated or punished in a cruel, inhuman or degrading way.

77. Section 18 states: “Everyone has the right to freedom of association.” Section 19 states

that every citizen is free to make political choices, including the right;

77.1. to form a political party;

77.2. to participate in the activities of, or recruit members for, a political party; and

77.3. to campaign for a political party or cause.

77.4. Every citizen has the right to free, fair and regular elections for any legislative

body established in terms of the Constitution. Every adult citizen has the right:

77.5. to vote in elections for any legislative body established in terms of the

Constitution, and to do so in secret; and

77.6. to stand for public office and, if elected, to hold office.

78. In Independent Institute of Education (Pty) Ltd v KwaZulu-Natal Law Society and

Others 2020 (2) SA 325 (CC), at para 45, Justice Theron, (Froneman J concurring)

summarized the approach to constitutional interpretation in the following manner.

 40

[45] However, and importantly, legislation must be interpreted through the

prism of the Bill of Rights. In Hyndai, this court held that s 39(2) requires that
all legislative provisions must be read ‘so far as it possible, in conformity with
the Constitution’. Thus, an interpretation which is constitutionally compliant
must be preferred over an interpretation which is not.’

79. The meaning of title has received contextual meaning in some cases. In Smyth and Others

v Investec Bank Ltd and Another 2018 (1) SA 494 (SCA) at para 54;

[54] It is trite that a party wishing to institute legal proceedings must have a
direct and substantial interest in the dispute which is the subject-matter of the
proceedings. (see in this regard Jacobs en’n Ander v Waks en Andere 1992 (1)
SA 521 (A) [1991] ZASCA 152 at 534A-E) In Sandton Civic Precinct (Pty) Ltd
v City of Johannesburg and Another 2009 (1) SA 317 (SCA) [2008] ZASCA 104)
para 19 Cameron JA said that legal standing means the sufficiency and
directness of a litigant’s interest in proceedings which warrants his or her title
to prosecute the claim asserted’.

80. Title to prosecute was therefore linked to the standing to institute legal proceedings.

Although in a different context, it is clear that title to prosecute is linked to the standing

of the NPA to institute legal proceedings against an accused person. That standing

derives from the CPA read within the context of the Constitution and the NPA Act. As

clear from the CPA, title is not defined and therefore must be read within the context

provided by the Constitution and the NPA which confers on the NPA the right to confer

title on its officials to prosecute. Where the NPA has acted unlawfully, it does not have

title to prosecute – for there can be no lawful title in that context.

81. A court may not turn a blind eye to the evidence of criminal acts perpetrated by senior

members of the NPA in which the constitutional status and legal authority of the NPA

was abused to advance the political interests of Mr Zuma’s political rivalries. Downer’s

defences, given through references to what Ngcuka and Pikoli have said about these

criminal acts is essentially a cover up of the despicable abuse of the criminal process to

victimize Mr Zuma for political ends.

 41

82. Simply put, Downer does not deny that Ngcuka’s decision not to charge Mr Zuma was

largely for political reasons – based on his position as deputy President of the ANC and

the country. He says that he warned all the NDPPs about these political factors

influencing the prosecuting decisions. Downer does not deny that Ngcuka’s decision not

to issue warrants to conduct a search of Mr Zuma’s premises at the same time that such

searches were conducted at Shaik premises was for political reasons. Downer knew that

Ngcuka had political interests which essentially powered his prosecutorial decisions.

Downer also knew that Ngcuka’s criminal meddling in Mr Zuma’s prosecution was

aimed at achieving political goals. This hijacking or abuse of the NPA’s status and

powers to conduct a criminal prosecution is not consonant with the title to prosecute

under the Constitution. Downer and the NPA knew that Mr Ngcuka’s criminal

interference was based on the fact that Ngcuka would have a personal benefit – for his

wife stood to benefit from Mr Zuma’s prosecution and the election of Mr Mbeki as

President of the ANC in 2007. Downer knew that Ngcuka’s conduct was a criminal act

for which he should have been charged. However, Downer offers his explanations as

though they have integrity and credibility measured against Mr Zuma’s complaints.

Downer’s attempts to downplay the gravity of Ngcuka’s criminal conduct and abuse of

the prosecution process to achieve political ends is a prosecutorial cover up - itself

potentially unlawful - and a clear indication that he would hide evidence involving

Ngcuka if such evidence would hurt his legacy project of wanting to prosecute.

83. Downer cannot seriously deny that he and the NPA is bound by the following:

83.1. The Constitution and the NPA Act.

83.2. The judgment of Msimang J on the prosecution’s conduct relating to the

prosecution;
 42

83.3. The findings of the Public Protector on the violence perpetrated against

Mr Zuma’s constitutional rights by Ngcuka and the NPA;

83.4. The direct evidence of the NPA in the Democratic Alliance’s review application

on why it was consistent with the central mission of the NPA to terminate the

prosecution;

83.5. Downer’s own evidence in the DA review application in which he supported the

relief sought by the DA to set aside the NPA’s decision to terminate the

prosecution;

83.6. The judgment of the SCA reviewing and setting aside the termination of the

prosecution against Mr Zuma told the NPA that it had acted unlawfully in using

the wrong law to terminate the prosecution. Its comments on the rationality

question did not change the evidence of the NPA on why the prosecution was

terminated. In other words, the SCA judgment does not endorse the view held

by Downer that it is lawful for the NPA to use its constitutional status and

processes to advance political interests by prosecuting political opponents of

those that are not favored by the NPA. The SCA judgment is not authority for

the view held by Downer that criminal conduct perpetrated by the NPA officials

in a prosecution may not result in the acquittal of the accused under section

106(4) of the CPA.

83.7. The findings of the judgment of Nicholson J in which he made very scathing

remarks on the abuse of the prosecution to advance political goals of those that

were not supported by its officials.

84. The incontrovertible evidence referred to above demonstrates two points relevant to the
 43

plea of title. First, that Downer is entangled and, in some respects, a major source of the

NPA’s loss of constitutional title to prosecute in these circumstances. Second, that his

removal is justified as is Mr Zuma’s acquittal in the event of Downer’s removal being

ordered because the constitutional title of the NPA cannot countenance a prosecution

under these factual and constitutional circumstances.

85. When dealing with the incontrovertible evidence of abuse of process because of criminal

interference in the prosecutorial process, the pivotal question must always be whether the

criminal acts and misconduct has so gravely violated the central mission of the

prosecuting authority that it cannot confer title to conduct a lawful prosecution.

Alternatively, whether to prosecute under these circumstances would violate the rule of

law principle which sits in the heart of our constitutional system. It is also whether the

loss of title is justified because upholding such title in the circumstances, would not only

cause the accused to suffer oppression, anxiety, concern, or compromise the moral

integrity of the criminal process but also that cause society to believe that it is part of the

NPA’s constitutional authority to determine use its title in pursuance of unconstitutional

objectives. This was the thrust of what the NPA submitted to the public and the Courts

in the DA review application – that it had so gravely violated its prosecutorial powers

such that the constitutional and moral authority of the NPA to conduct a legitimate and

lawful prosecution against Mr Zuma could not be justified by prosecuting Mr Zuma. That

is what loss of title means – that a prosecutor does not have title to conduct a prosecution

in circumstances where there is evidence that the NPA lacks the constitutional legitimacy

to do so by virtue of having violated its mandate. Section 106 – although pre-

constitutional dispensation legislation allows an accused to seek refuge from being

prosecuted by an authority that has lost its title to prosecute him or her in accordance

with the law. In the circumstances, the NPA should be disentitled from conducting a
 44

prosecution because to not do so not only undermines the rule of law, but is ultra vires

the powers conferred on the NPA by the Constitution and the NPA Act.

86. The Constitution and its enforcement provisions justify a new ‘category’ of abuse of

process in criminal proceedings where the removal of a prosecutor is the only just and

equitable remedy to safeguard not only the constitutional authority of the NPA but

ultimately the rule of law. Where a prosecution may not be lawfully conducted without

covering up its own dirt, or without disclosing grave violations of constitutional rights

and a criminal abuse of the prosecutorial processes, the NPA has no title to prosecute.

Loss of title must also result in loss of constitutional authority to present evidence against

the accused in circumstances where the constitutional authority of the NPA to do so is

shrouded in criminality and unconscionable acts of prosecutorial misconducts.

87. Insofar as the effect of the constitutional values on the NPA’s title to conduct criminal

prosecutions, its approach to prosecutorial misconduct, and the doctrine of abuse of

process are concerned, it follows that all law in South Africa, including the common law

and conduct of prosecutions, must promote the rule of law and supremacy of the

Constitution and the values that underlie the Bill of Rights. The tension between the

executive and the judiciary, in the context of claims of executive impingement on

fundamental rights such as those that may occur in the context of the application of the

abuse of process doctrine, will inevitably be impacted upon by the legal character of

those fundamental rights. The title plea is therefore one which is raised within the context

of the abuse of process doctrine. If the NPA or Mr Downer is permitted to conduct this

prosecution, that will erode the constitutional and moral authority of the NPA to perform

its duties as prescribed by the law. It would mean that the NPA may conduct a

prosecution to advance illicit and unconstitutional objectives. That is not consistent with
 45

its central constitutional mission. It will also mean that the rule of law violations by the

NPA are irrelevant to whether the NPA has the title to prosecute for as long as the NPA

and Downer believe that there is evidence against the accused. To render irrelevant

conceded acts by the NPA officials of a criminal nature while purporting to prosecute

Zuma would plunge the prosecutorial system into a weapon of terror.

88. Section 106(4) is designed to give a court the power to restore the rule of law and to

ensure that the NPA is only permitted to present evidence against an accused in

circumstances that reflect the constitutional values and principles. Where a prosecutor is

engaged in covering up criminal acts, he or she cannot be regarded as having the lawful

title to present evidence against an accused in a court of law.

THE COURT MUST INTERPRET THE NPA’S TITLE TO PROSECUTE WITH DUE

REGARDS TO THE CONSTITUTION AND THE NPA ACT

89. The court should examine the conduct of the NPA within the context of its constitutional

and statutory obligations. So done, the Honourable Court will find that the title to

prosecute comes directly from its primary constitutional and legislative duties in the

Constitution and the NPA Act. The title to prosecute has to be exercised only along the

terms prescribed by the Constitution and the NPA Act and prosecution policies and

guidelines. In that regard, there is no title on the NPA to prosecute in pursuance of

political objectives. The NPA cannot prosecute in circumstances where it will have to

contradict its own evidence on criminal abuse of its powers.

90. The evidence in the spy tapes demonstrate a grave deviation of the NPA from the law

which gives it title to conduct lawful prosecution. There is no standing on the NPA to

conduct itself in the manner revealed in those tapes so there is no title to prosecute arising
 46

from the criminal conduct of the NPA. Ultimately, the spy tapes and the NPA’s evidence

on the gravity of the political interference with its prosecution title is consistent with a

fair understanding of the phrase “title to prosecute”. The NPA’s title is linked to its

constitutional duty in section 7(2) of the Constitution to “respect, protect, promote and

fulfil the rights in the Bill of Rights”. The NPA’s evidence that its processes were

corrupted by its own officials results in a loss of title to prosecute this case- for there can

be no lawful title to prosecute where the NPA has acted in a rogue manner in relation to

its powers. The NPA, in terminating the prosecution, was attempting to extricate its title

from these illegal acts and to align its title with a prosecution that is consistent with its

constitutional duties which include to prosecute in an open and democratic society based

on human dignity, equality and freedom. The crux of the NPA title to prosecute must

therefore be aligned with the following constitutional goals;

90.1. To exercise its prosecutorial duties independently and with due regard only to

the oath of office of the NPA officials;

90.2. To utilize its title to prosecute in accordance with section 9(1) of the

Constitution which guarantees the right to equality before the law;

90.3. To utilize its title to prosecute in accordance with section 10 of the Constitution

which guarantees the right to inherent dignity;

90.4. To utilize its title to prosecute in accordance with section 34 which guarantees

the right to access courts and have the dispute involving whether he is guilty of

any criminal wrongdoing or not, determined in a fair public hearing before a

court;

90.5. To utilize the title to prosecute in accordance with section 35(3) of the
 47

Constitution, which amongst others guarantees the right to a fair trial, to a public

trial before an ordinary court; to have the trial begin and conclude without

unreasonable delay; to be present when being tried; to be presumed innocent.

91. When addressing the issue of title to prosecute, the court must have regards to the

requirements in section 39 of the Constitution which requires that when interpreting the

Bill of Rights, a court “must promote the values that underlie an open and democratic

society based on human dignity, equality and freedoms.” It must ask itself the following

question – does the title to prosecute under our Constitution require the NPA to prosecute

in a manner that “promote the spirit, purport and objects of the Bill of Rights.” If yes,

there is no title to prosecute where the NPA has committed criminal acts in the process

of conducting that prosecution. The Constitution and the NPA Act require that the NPA

as an institution to be independent and the prosecutor to possess the requisite skills,

qualities of independence, impartiality and integrity. A prosecutor’s lack of those

attributes amounts to a lack of title and can be challenged through a section 106(1)(h)

plea.

92. Section 179 of the Constitution provides the framework in terms of which the prosecuting

authority functions. This is where title to prosecute derives its meaning. Section 179

provides for a single national prosecuting authority structured in terms of an Act of

Parliament, with a NDPP who is the head of the prosecuting authority and Directors of

Public Prosecutions (DPP) and prosecutors as determined by an act of Parliament.

Section 197(1) provides that the President, as head of the executive, appoints the NDPP.

That process is a rigorous process – succinctly set out in the judgment of the
 48

Constitutional Court, colloquially referred to as the “Simelane judgment”.8

93. In section 179(2) of the Constitution, the prosecuting authority has the power to institute

criminal proceedings on behalf of the state, and to carry out any necessary functions

incidental to instituting criminal proceedings. Section 179(4) of the Constitution says that

national legislation must ensure that the prosecuting authority exercises its functions

without fear, favour or prejudice.

94. The NDPP must determine, with the concurrence of members of Cabinet responsible for

the administration of justice, and after consulting the directors of public prosecutions,

prosecution policy which must be observed in the prosecution process. However, there

is judicial unanimity that ministerial interference is prohibited. The scope of ministerial

involvement does not extend to the core prosecutorial decisions that relate to who, when

and why should an accused be prosecuted. The NDPP must issue policy directives which

must be observed in the prosecution process. The NDPP may intervene in the prosecution

process where policy directives are not complied with. The NDPP may also review a

decision to prosecute or to decline prosecution after consulting the relevant director of

public prosecutions and after taking representations from certain identified parties.

95. The member of Cabinet responsible for the administration of justice must exercise final

responsibility over the prosecuting authority. Sect. 179(6). All other matters concerning

the prosecuting authority must be determined by national legislation. Sect. 179(7).

96. Parliament enacted the NPA Act to give effect to section 179. The NPA Act also regulates

other matters concerning the prosecuting authority. In terms of the NPA Act the President

8
Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR
1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012) see paras 13 to 14 and then paras 16 to 20 and
 49

must appoint a NDPP.19 The President may, after consultation with the Minister of

Justice and the NDPP, appoint a maximum of four persons as Deputy National Directors

of Public Prosecutions (DNDPP).20 The President may also after consulting with the

Minister of Justice and the NDPP appoint Directors of Public Prosecutions at the seat of

each High Court in the Republic. Sect.13.

97. The salaries that the NDPP, a DNDPP and a DPP receive are linked to the salary of a

judge of the High Court. The salary of the NDPP may not be less than that of a judge of

the High Court and the salary of a DNDPP and a DPP may not be less than 85 per cent

and 80 per cent of the salary of the NDPP respectively. Section 17 of the NPA Act says

so. The salary of a judge of the High Court is determined from time to time by the

President after taking into account the recommendations of the Independent Commission

for the Remuneration of Public Office-bearers, and must be approved by Parliament.9

98. In terms of section 15 of the NPA Act, the Minister of Justice may, after consultation

with the NDPP, appoint Deputy Directors of Public Prosecutions (DDPP). Prosecutors

are appointed on the recommendation of the NDPP in terms of section 16 of the NPA

Act.

99. A DDPP or prosecutor is paid a salary in accordance with his rank and grade on a scale

determined from time to time by the Minister of Justice after consulting the NDPP and

the Minister for the Public Service and Administration, and with the concurrence of the

Minister of Finance by notice in the Gazette. The notice must be approved by Parliament.

The salary payable to a DDPP or a prosecutor may not be reduced except by an Act of

Parliament. Other conditions of service of a DDPP and a prosecutor are determined by

9
Sect. 2(1)(a) read together with s 2(4) of the Judges’ Remuneration and Conditions of Employment Act 47 of
2001.
 50

the Public Service Act.10

100. Personnel of the prosecuting authority serve impartially and exercise, carry out or

perform their powers, duties and functions in good faith and without fear, favour or

prejudice subject only to the Constitution and the law.11 As well, no organ of state and

no member or employee of an organ of state nor any other person shall improperly

interfere with, hinder or obstruct the prosecuting authority or any member thereof in the

exercise, carrying out or performance of its or his powers, duties and functions subject

to the Constitution and the NPA Act.12 The Minister of Justice, for purposes of any law

regarding the prosecuting authority, exercises final responsibility over the prosecuting

authority in accordance with the provisions of the NPA Act. The prosecuting authority

is accountable to Parliament in respect of its powers, functions and duties under the Act,

including decisions regarding the institution of prosecution. The title to prosecute is

linked to all these provisions and must be interpreted as the authority conferred by the

NPA in terms of the Constitution and the NPA Act to conduct a lawful prosecution

against any accused person. To limit the meaning of title to formal qualification is to

devalue the constitutional status of the NPA and its prosecutors to conduct prosecutions

on behalf of the State.

NPA UNLAWFUL DECISIONS

101. The conduct of the NPA in relation to Mr Zuma’s prosecution was so egregious in its

deviation from the mandatory provisions of the Constitution, the NPA Act 32 of 1998,

the prosecutorial policy, guidelines and Code of Conduct for Prosecution that it should

be regarded as having no constitutional title to present evidence in Court against

10
Proc 103 of 1994; sect. 19
11
Sect. 32(1)(a).
12
Sect. 32(1)(b).
 51

Mr Zuma. The criminal investigation involving against Mr Zuma was characterised by

conceded acts of serious prosecutorial misconduct for which no prosecutor has title to

prosecute.

101.1. According to Ngcuka, the NPA could not confer any title on any prosecutor to

conduct Zuma’s prosecution because it had authority to conduct a prosecution

under the circumstances even though they had prima facie evidence of criminal

wrongdoing. This was the first decision not to prosecute Zuma for the crimes in

which it was alleged Shaik committed with him.

101.2. The second decision of the NPA under Pikoli was to prosecute. Assuming that

at this stage the NPA could confer title to prosecute on a prosecutor, this

decision was shrouded in unprecedented controversy that involved the DSO’s

production of the Browse Mole Report. Preceding the decision to confer title to

prosecute this matter, the NPA had engaged in scandalous actions that were

inconsistent with the title to prosecute. In any event, before the Court, and when

called upon to do so, they failed, with the result that Msimang J stuck the matter

off the roll and made very scathing judicial findings on the NPA’s conduct. The

judgment of Msimang J is binding on the NPA and remains authority on the

NPA’s unlawful conduct in relation to that prosecution.

101.3. The third decision of the NPA under Mpshe was also to prosecute. As soon as

the evidence of unconstitutional conduct and criminal wrongdoing committed

by the NPA in the handling of criminal investigation and prosecution against

Mr Zuma was disclosed to Mpshe he terminated the prosecution. The

termination decision was in fact a termination of the title of the NPA to

prosecute on account of prosecutorial misconduct.

 52

101.4. That decision was not only criticised by the NPA’s own lawyers, including

Downer SC and Trengove SC, but was ultimately challenged by Mr Zuma

political opponents – who successfully overturned it. The courts found that

Mpshe had acted unlawfully in terminating Mr Zuma’s prosecution on the

grounds that he used the wrong section of NPA Act and the Constitution.

However, what is important in the entire episode of determining the lawfulness

of the NPA’s decision to terminate Mr Zuma’s prosecution, is the record of

evidence given by the NPA in the justification of the impugned decision. The

SCA judgment accorded no weight to the evidence of the NPA set out in

commendable detail, in the affidavits of the NPA deposed to by Hofmeyr and

confirmed by Mpshe. Instead, the SCA almost downplayed the gravity of the

evidence of gross prosecutorial abuse, while recording its judicial apprehension

over it. What the SCA did not do was to assess whether the evidence of

prosecutorial misconduct violated the title of the NPA to prosecute – even

though it acknowledged the damage of the evidence to the title to prosecute.

101.5. The fourth decision of the NPA under Abrahams was to prosecute Mr Zuma,

and this followed a political firestorm with country-wide campaigns calling for

Mr Zuma to resign. This included the DA and EFF’s applications to set aside a

funding agreement that Mr Zuma had had with the State to cover the criminal

trial. The Courts set aside that funding agreement – calling it an abuse of public

funding and with no regards to the provisions of section 35(3) which entitles

Mr Zuma to state funding. Mr Abrahams was essentially forced to bring the

criminal prosecution. The decision to prosecute was forced on the NPA by the

SCA judgment, the vigorous litigation threats by the DA and another

organisation called CASAC. While Abrahams was considering whether to

 53

institute prosecution or not in light of the SCA judgment, the CASAC brought

an interdict application in terms of which it sought an order that Abrahams is

barred from exercising that power. That application was dismissed by the

Constitutional Court. With that political pressure, came litigation threats from

the DA to obtain specific undertakings in relation to his exercise of prosecution

powers. The political threats were such that Abrahams gave a political party the

undertaking that he would provide it with Mr Zuma’s representations prior to

making his decision to prosecute, and that he would give this political party a

right to be heard on his representations prior to Abrahams making his decision.

This was an unprecedented abandonment of prosecutorial independence.

Abrahams did nothing to protect the institution from the barrage of attacks from

political parties and appears to have been supine in his readiness to accede to

these political threats.

102. The events leading to that decision are characterised by unconstitutional conduct that is

inconsistent with the title of the NPA. It must be born in mind that Abrahams on

ascending to the position of NDPP could have reviewed the Mpshe decision and

abandoned the NPA’s appeal to the SCA in the DA review application and taken a new

prosecution decision. He too, strongly believed in the correctness of the evidence of the

NPA on the criminal interference with the integrity of the prosecution. He vigorously

defended the termination decision and when the Court found against the NPA and

thereafter purported to make a lawful decision to prosecute, after having made certain

undertakings and assurances to political parties about that decision. His decision to

prosecute was not made independently and appears to have been done under dictation of

the political party – the DA. It was after that decision of Abrahams, that Mr Zuma applied

for an order that his criminal prosecution be permanently stayed. We deal with this
 54

judgment in the context of the res judicate claim of the NPA in relation to the issues

raised in the plea.

ON THE NPA’S EVIDENCE OF POLITICAL INTERFERENCE

103. The NPA believes that the rulings of the High Court and SCA on the issue of criminal

political interference with the prosecution have now been settled and therefore irrelevant

in the trial. They are wrong because they conflate the nature of a criminal trial with that

of a civil application. In essence, there is an attempt to suggest that the NPA wants to

entrench the prohibited principle that political interference in criminal prosecutions may

be condoned as long as it can be demonstrated that the trial on the merits may be achieved

on good evidence against the accused. This has to be stated to be rejected as nonsensical

and a blatant attempt to condone unlawful and criminal abuse of the prosecution system.

This approach would undermine the independence of the NPA and the sanctity of the

power or title it has to prosecute. Our Courts have on numerous occasions stated that the

independence of the Prosecuting Authority is vital to the independence and integrity of

the whole legal process. In fact, our Constitutional Court has held that the independence

of the NPA is vital for the democracy itself. With prophetic precision, the Court has held

that the criminal justice system must be independent from capture by any political

factions or sectional interest. A monopoly of control over the criminal justice system by

a political grouping or interests will strip the NPA of its constitutional attributes and

make it part of a political process of persecution of one particular targeted political

enemy. The NDPP sits at the apex of the Prosecuting Authority, insulated from political

interference and is the final decision maker in the prosecuting process. Where the NDPP

compromises these weighty constitutional responsibilities to shield the entire prosecution

process from political manipulation, fundamental rights are threatened. The

 55

constitutional system of government itself is threatened. In appropriate circumstances,

the prosecution process is grossly compromised in a particular criminal case when it

deviates from its central constitutional mission, this justifies the granting of a permanent

stay of prosecution.

104. The hierarchy of prosecuting authority requires that decisions to prosecute are made by

various levels in descending order from the NDPP and down through the ranks of DPPs

to the lowest prosecutor. The NDPP is empowered alone to authorize prosecutions in

certain instances including the Prevention of Organised Crime Act, No 121 of 1998,

sections of the Films and Publications Act 65 of 1996, and The Implementation of the

Rome Statute of the International Criminal Court Act, No 27 of 2002. The fact that

authorization is required from the NDPP tends to suggest that he is not involved in the

actual prosecution itself and authorizes the DSO to prosecute. Apart from that the lower

levels of prosecutors below, DPPs exercise a delegated authority to bring prosecutions in

the courts.

105. Acting on this delegated authority prosecutors decide to prosecute or not, depending on

criteria established in the policy directives emanating from the prosecution policy. The

prosecution policy requires the prosecution function to be done “without fear, favour or

prejudice” and that the process must be “fair, transparent, consistent and predictable”.

It purports to promote “greater consistency in prosecutorial practices nationally”. It

requires “members of the Prosecuting Authority to act impartially and in good faith. They

should not allow their judgment to be influenced by factors such as their personal views

regarding the nature of the offence or the race, ethnic or national origin, sex, religious

beliefs, status, political views or sexual orientation of the victim, witnesses or the

offender.”
 56

106. Regard should also be had to the Code of Conduct of the National Prosecuting Authority

which was framed by the NDPP in terms of section 22(6)(a) of the NPA Act and which

is binding on all members of the Prosecuting Authority. It provides that “prosecutors

should be individuals of integrity whose conduct should be honest and sincere who

should respect, protect and uphold justice, human dignity and fundamental rights as

entrenched in the Constitution… strive to be and be seen to be consistent, independent

and impartial…”

THE NPA HAS NO TITLE TO PROSECUTE IN VIOLATION OF SECTION 9(1) OF

THE CONSTITUTION

107. Section 9(1) of the Constitution provides that “everyone is equal before the law and has

the right to equal protection and benefit of the law.” This requires the NPA to treat

accused persons – where it is necessary as in this case – to the standard of equality. The

criminal prosecution of Shaik without Mr Zuma violated this principle. As it is now clear

that the prosecution decision to prosecute Shaik alone was a prosecution strategy of

getting to Mr Zuma. In its own memorandum in assessing the prosecution prospects after

the successful prosecution of Shaik, Downer makes the following remarks that supports

the allegation that the Shaik trial was a curtain raiser to that of Mr Zuma.

108. In fact, it is Downer’s advice to the NDPP that they erred in considering the status of

Mr Zuma for purposes of prosecuting him. This, he says in his affidavit in the stay

application – that he cautioned all the NDPP that handled the case of Mr Zuma, to not

consider Mr Zuma’s status in determining the appropriate prosecution decision. But

coming back to Downer’s own memorandum to the NDPP here is evidence that supports

the allegation that Mr Zuma’s prosecution was conducted via Shaik’s prosecution and

when the NPA was successful with Shaik, it struck Zuma.

 57

DOWNER’S REPORT ON THE PROSPECTS OF A SUCCESSFUL PROSECUTION

OF JACOB ZUMA13

109. The report was at the request of the NDPP and prepared by Downer and his team to

advise the NDPP on the “prospects of a successful prosecution of the (now former)

Deputy President Jacob Zuma in light of the successful prosecution of his financial

advisor, Shabir Shaik, and various of his companies on charges of corruption and fraud.”

Downer specifically asked “to pay particular attention to issues of the admissibility of

evidence and any other practical difficulties that may be encountered in such a

prosecution. We have also been requested to advise on any further investigation

required.”

110. In the executive summary – Downer says it “is a matter of record that the prosecution

team, in our previous report dated 21 August 2003, recommended that Zuma be

prosecuted along with Shaik and his companies on, in alia, 2 counts of corruption. In the

opinion of the then National Director, however, while there was a prima facie case of

corruption against Zuma, there was not a reasonable prospect of a successful

prosecution.”

111. Downer starts off by saying that “on the evidence presented in the Shaik case the court

found that the State had proved beyond a reasonable doubt:

“7.1 That there was ‘overwhelming’ evidence of the existence of a generally

corrupt relationship between Zuma and Shaik, during the course of which Shaik
paid bribes to Zuma in excess of R1,2 million in return for Zuma’s support for
and assistance in Shaik’s private business affairs;

7.2. That Zuma provided Shaik with improper assistance in at least 4 instances;

7.3.That the so-called loan agreement between Shaik and Zuma dated 16 May

13
Page 3444 of the Record
 58

1999, which was relied upon by Zuma in his declarations (or lack thereof)
to parliament and to the Secretary to the Cabinet, was a sham and that the
payments were bribes and not loans;

7.4.That, even if these payments could be regarded as loan, they amounted to

benefits as envisaged in the Corruption Act;

7.5.That Shaik, Zuma and Thetard met in Durban on 11 March 2000 and at this
meeting an agreement was reached that Thomson CSF would pay Zuma a
bribe of R500 000 per annum until the first payment of ADS dividends, in
return for Zuma’s protection during the investigation into the Arms Deal
and for his permanent support for future projects; and

7.6.That the so-called Service Provider Agreement between Kobifin and

Thomson International (Mauritius) was merely a device employed to
launder the bribes monies intended for Zuma and that R250 000 was so
laundered before the agreement was terminated for reasons unknown; and

7.7.That Shaik’s payment to Development Africa were tantamount to payments

to Vivian Reddy, who in turn financed the bond on Zuma’s Nkandla
homestead.

8. For the reasons set out hereunder and subject to the caveats discussed, it is our
view that this judgment has provided strong support for our contention that
there is indeed a reasonable (at least) prospects of a successful prosecution
against Zuma on at least 2 counts of corruption and one found of fraud.

9. …

10. Although the investigation against Shaik was thoroughly completed, there is still
a great deal of investigation specific to Zuma that needs to be undertaken, as
discussed in more detail in section E below, for instance;

10.1. Zuma needs to be searched as soon as possible. Although it may be

urged that this may be undesirable in the light of the likelihood that he
would probably have long since destroyed any incriminating evidence
and because of the embarrassment that it might cause him, we are
strongly of the opinion that this is essential, for reasons discussed;

10.2. In the light of Shaik’s evidence that he was continuing to fund Zuma,
Nkobi needs to be searched again to obtain updated information of such
payment and any possible repayments;

10.3. It must be determined whether or not Zuma declared such payments to

SARS; and
 59

10.4. Other sources of funding for Zuma, such as Jurgen Kogl, Vivian Reddy
and Norah Fakude/Bohlabelo Wheels need to be investigated, which
may also entail further searches.

14. In conclusion, we have always been of the opinion that there was a reasonable
prospect of a successful prosecution of Zuma, and the outcome of the Shaik
trial has fortified such opinion. While certain practical difficulties may arise
from the piecemeal prosecution of the case, we believe that these are
manageable. (emphasis added)

We are indeed now in a far stronger position than when we made our original
recommendation. In the light of the terms of the Shaik judgment and the reaction
thereto from all sides of the political spectrum, including calls from Zuma
himself to have ‘his day in court’, the decision that the NPA would in our view
be most hard pressed to defend, would not be a decision to prosecute Zuma,
but rather a decision not to prosecute him.” (Own emphasis)

112. In analysing the crime of corruption, Downer concludes the following:

112.1. In page 29 of the memo, Downer says that “In the Shaik’s case, the Court upheld

the State’s argument that it is possible to charge and convict an accused, who

has participated in an ongoing series of corrupt payments, with the

contravention of both subsections (i) and (ii) of section 1(a), in circumstances

where it is not possible to determine whether any particular payment was

intended as an inducement or a reward. In these circumstances, it is sufficient

to allege a “generally corrupt relationship”.

113. In paragraph 128, Downer considers the ‘admissibility of the evidence led in the Shaik

trial in a prosecution of Zuma’ and makes the following conclusions;

113.1. He assures that the hearsay nature of evidence against Zuma will not be a

difficult huddle to overcome because the “prosecution faced the same

challenges in the Shaik trial in relation to documents seized from Thomson CSF,

both locally and in France and Mauritius. However, the State successfully
 60

argued that the evidence was admissible on one or more of the following

grounds

113.1.1. In terms of section 3 of the Law of Evidence Amendment Act, No 45

of 1988, alternatively

113.1.2. On the basis that they are tendered not for the truth of their contents,

but merely to prove their existence.

113.2. The documents seized from Thomson CSF may be proved in the same manner

in which it was in the Shaik trial, where it was admitted despite the fact that it

was hearsay. The State successfully argued that the evidence was admissible on

one or more of the following grounds:

113.2.1. In terms of section 221(1) of the CPA

113.2.2. In terms of section 222 of the CPA read with s 34(1) of the Civil

Proceedings Evidence Act, No 25 of 1965

113.2.3. In terms of section 3 of the Law of Evidence Amendment Act, No 45

of 1988.

113.3. The encrypted fax should be admitted on the same basis that it was found to be

admissible in the Shaik trial, to wit:

113.3.1. As an executive statement made in the furtherance of a common

purpose; or

113.3.2. In terms of section 3 of the Law of Evidence Amendment Act, No 45

of 1988
 61

113.4. Most of the witnesses who testified in the Shaik trial may also be used to

testified against Zuma.

113.5. In paragraph 138 of the memorandum Downer deals with “consideration of

other practical difficulties and requirements.”

113.6. In paragraph 139 Downer certain practical lessons learnt from the Shaik trial.

113.6.1. The assistance of the KPMG team played a vital role in the success of

the prosecution. It is essential that the same team be employed from the

outset of the investigation/prosecution of Zuma.

113.6.2. The investigation/prosecution team faced criticism relating to the fact

that it consisted largely of white males, which exposed it to allegations/

insinuations of racism. It is anticipated that these criticisms would

sound even louder if the same team were to prosecute Zuma.

113.6.3. The appointment of Senior Counsel of colour to deal with ancillary

matters.

114. In addition to this memorandum, Downer and his team, based their decision to institution

charges based on POCA, on the basis of the lessons learnt from the Shaik trial. This

appears from the “Application to the Acting Director for the Institution of Prosecution

in terms of Chapter 2 of the Prevention of Organised Crime Act, No 121 of 1998: the

State v JG Zuma and Others.”14

115. In paragraph 3 of the application Downer says that the “evidence that was accepted by

the trial and confirmed by the appeals courts revealed the complicity of Mr Jacob G Zuma

14
Page 3535 of the record
 62

(“Zuma”) and two subsidiaries of the French Thales group, to wit Thint Holdings (Pty)

Ltd, in the two corruption counts.

116. In paragraph 4, Downer says that the Shaik trial also revealed “a clear pattern of conduct

on the part of Shaik and his companies of attempting to obtain the political patronage of

high-ranking government officials and influential politicians in exchange for his

financial support and to leverage his resultants “political connectivity” to attempt to

obtain lucrative government contracts and profitable joint venture agreements with

successful foreign and local corporations.” 15

117. In paragraph 44, Downer says that the “lessons of the Shaik trial ought to be borne in

mind in this connection. It may be argued that high-profile and difficult prosecutions

should be streamlined to avoid controversial legal problems. The contrary proved to be

the case in the Shaik trial. It was only because the prosecution was prepared to take

calculated risks that the prosecution succeeded. Many of the crucial aspects of the case

were highly controversial and untested, such as: the formulation of a charge of general

corruption; the tendering of the fax in evidence in terms of the law of executive

statements; sec 3(1)(a) of Act 45 of 1988; and secs 332 and 222 of Act 51 of 1977; the

tendering of Wilson’s statement in terms of sec 222 of Act 51 of 1977; the general theory

of the entire case based on corruption. As opposed to benign friendship or “ubuntu”, etc.

The lessons learned is that it is precisely in important, hard-fought and controversial

cases that the prosecution must not hesitate to utilise all the weapons legitimately at its

disposal. The racketeering provisions of POCA are such weapons that suit the present

case ideally.”

118. In paragraph 45 Downer further records the lessons learnt from the Shaik prosecution “is

15
Page 3536 of the record
 63

that a robust court will embrace controversial provisions in favour of the prosecution, if

the basic structure of the case is merit-worthy. Virtually all the controversial issues were

decided in favour of the State in the Shaik prosecution. Neither the SCA nor the

Constitutional Court saw fit to interfere in any of the trial court’s decisions, including its

controversial decisions.”

119. In paragraph 46 of the application, Downer says the following about Zuma: “Finally, it

is anticipated that the accused and their allies will try to make political mileage out of

the racketeering charges as further support for their allegations that Zuma is a victim of

a political conspiracy. In our view, however, this is not a factor that should enter the

equation when deciding whether racketeering is an appropriate charge.”

120. The application demonstrates that the NPA used the Shaik trial as a trial run – to sharpen

the NPA’s spears against Zuma and ensure that they utilise the lessons learnt from trying

Shaik for Zuma. This approach of the NPA demonstrates that there was never a good

reason for not prosecuting Zuma with Shaik. The prosecution strategy was to first

prosecute Shaik and learn some difficult lessons from it – holding Zuma’s prosecution in

abeyance while experimenting with robust prosecution of Shaik – to test the waters for

the Zuma prosecution. Downer’s denial and explanations given to the Court on why the

NPA did not try Zuma together with Shaik is without merit – as demonstrated by his own

documents, it is clear that the NPA’s strategy was to try Shaik first as an experiment and

thereafter go after Zuma on the basis of lessons learnt from prosecuting Shaik. This is

unfair discrimination – in direct violation of the equal protection clause of the

Constitution in section 9.

121. The NPA’s conduct amounted to a selective prosecution that is discriminatory in a

manner prohibited in section 9(1) of the Constitution. First, given the NPA’s claim of a
 64

prima facie case of corruption against Zuma and Shaik, its decision to single out and

charge Mr Shaik and not Zuma is unjustifiable and a violation of section 9(1) of the

Constitution. There has never been a constitutionally sound basis for such a

discriminatory application of the prosecutorial discretion and policy within the context

of the Constitution. Our Courts, including the SCA has questioned the rationality and

reasonableness of the NPA’s decision. What has never been the focus of our courts is

how this discriminatory application of prosecutorial discretion affected Mr Zuma’s

constitutional rights. On the basis of the State’s own record, it is now clear that the NPA’s

prosecution of Mr Shaik and not Zuma as far back as 2004 was based on a prosecutorial

strategy of unlawful and unjustified selective prosecution. The Courts that have excused

the NPA from these allegations have done so without any knowledge of Downer’s own

reflections of why the prosecution did not prosecute Zuma with Shaik.

122. The second element of selective prosecution is that there must exists some evidence of

improper motivation in deciding to prosecute. Our Courts, as the Constitution, do not

permit prosecution for improper motives – for to do so would be contrary to the founding

principles of our Constitution which is based on human dignity, the achievement of

equality and advancements of human rights and freedoms. It would violate the oath of

office of the NPA officials and its fundamental tenets of independence and impartiality.

While prosecutorial discretion is broad and there exists a strong presumption that

prosecutors have properly discharged their duties, this discretion is bound by

constitutional constraints, which forbids a decision to prosecute from being based on an

unjustifiable standard such as political status, activities, race, religion, or other arbitrary

classifications. Our Courts have held that nothing can corrode respect for a rule of law

more than the knowledge that the government looks beyond the law itself to arbitrary

considerations, such as race, religion, or control over the defendant's exercise of his
 65

constitutional rights, as the basis for determining its applicability.

123. The Courts before made their remarks on these matters without the evidence of Downer

evidencing the main reason for not prosecuting Zuma with Shaik. The memorandum now

places, in the hands of the court the reasons of the NPA for this selective prosecution and

it is clear from this evidence that Downer was gambling with the prosecution of Shaik

for Zuma. Justice Msimang in his judgement, recognized the unique set of circumstances

showing that the absurdity of this prosecution decision which was clearly in violation of

section section 9(1) of the Constitution. Judge Msimang recognized that Mr Zuma had

publicly been accused as an unindicted co-conspirator in 2003 even though the

prosecution decided for its own tactical reasons not to indict him. Msimang J made

specific reference to the 23 August 2003 press statement by Ngcuka in which he

announced that the investigations against Mr Zuma and Shaik had been finalised, that the

state would prosecute only Shaik on various counts of corruption, fraud, theft of company

assets, tax evasion and reckless trading. Ngcuka expressly informed all present that,

though the investigating team had recommended that Mr Zuma should also be

prosecuted, after careful and dispassionate consideration of the evidence and the facts of

the case, it was concluded that, whilst there was a “prima facie case” of corruption

against Zuma, the prospects of success in a prosecution were not strong enough and that

it was not certain that the case against Mr Zuma was a winnable one. Accordingly, the

NDPP concluded, a decision had been made not to prosecute Mr Zuma. In the tactics

employed by the NPA through Mr Ngcuka, an individual citizen could be identified as

an unindicted co-conspirator, an unindicted guilty crook walking or a criminal against

whom “prima facie evidence of corruption” existed while the NPA assiduously avoided

the indictment of that citizen.

 66

124. The NPA had identified Mr Zuma as having committed a comparable or similar act for

which Shaik had been charged but the NPA was consciously embarking on a prosecution

strategy that carried the inherent risk of subjecting only Shaik to the burden of a criminal

prosecution and the possibility of a greater punishment than Mr Zuma who had allegedly

committed an identical act - that is corruption through bribery (as an alleged recipient of

bribes.)

125. Sadly, the NPA’s actions did not stop there. The Hefer Commission heard testimony that

Ngcuka used a confidential meeting with black editors for the "vitriolic character

assassination"16 of several subjects of Scorpions investigations, including Deputy

President Jacob Zuma and Shaik. One of the witnesses, Mona, told the commission the

following: Ngcuka said "he would wash his hands-off Zuma and leave him in the court

of public opinion". Ngcuka allegedly said that Mr Zuma had landed in trouble because

he "surrounded himself with Indians". For good measure, Mr Ngcuka allegedly called

former transport minister Mac Maharaj a "straight-faced liar." Mona sent copies of his

notes about the meeting with Ngcuka to the Chief Justice, the public protector and Justice

Minister Penuel Maduna.

126. Whatever one’s assessment of Mona’s credibility may be, several facts are undeniable;

for example, (i) the racially exclusive meeting did take place; (ii) it was a meeting to

which only black editors were invited and was indicative of the approach by the NPA to

implement a well-orchestrated and vituperative press campaign in which the comradely

relationship between Mr Zuma and Mr Shaik from the dark days of the struggle would

be portrayed in racist terms as the case of an unsophisticated black African man being

manipulated by a mercenary intelligent Indian. In short, this suggests or has the

16
The Star on November 27, 2003, page 3.
 67

appearance that the NPA wanted to lower Mr Zuma in the esteem of his followers by

invoking a racist stereotype of alleged manipulation of African politicians by exploitative

Indians. This conduct was despicable in the least as it was not only inconsonant with the

Constitution, the NPA Act and prosecutorial directives, it was an abuse of prosecution

process based on political considerations that were inappropriate.

127. Mr Zuma’s complaint that he was subjected to selective prosecution and trial by proxy

during Shaik’s trial as well as “in the court of public opinion” as Mr Ngcuka allegedly

promised the select group of black editors is correct. When a group of people are charged

with participating in the same crime, they ordinarily are tried together even if the

evidence is stronger against one or some than against others. Most court rules allow

charging in the same indictment two or more offenders if they are alleged to have

participated in the same act or transaction or in the same series of acts or transactions

constituting an offense or offenses. In the Shaik case, the NPA ignored this basic rule of

practice and created a risk that Mr Zuma would suffer irreparable constitutional prejudice

because of the manner in which Shaik’s trial was conducted. This issue is explored at

length in the section dealing with prejudicial delay that Mr Zuma was subjected to, during

the period 2003 through 2005. This delay not only caused Mr Zuma actual, substantial

constitutional prejudice, but also that the prosecution orchestrated the delay to gain a

tactical advantage over him in direct violation of the principle of equality of arms.

128. In the media and the court of public opinion, Mr Zuma was tarred and feathered as a

criminal suspect but could never disprove that label as he was never formally brought

before a court of law until 2005 or told what evidence exists to justify the label. This is

harkening to the dark days of apartheid where anti-apartheid activists in South Africa

could be labelled communists, placed under house arrest or suffer other indignities based
 68

on the say-so of a government minister.

129. A question which this court must give consideration or weight is – if the NPA had decided

not to prosecute Mr Zuma, what was the point of the NPA entertaining the public with

stories about the existence of “prima facie evidence” of corruption against him other than

to cause political prejudice? Obviously, since these statements “have no functional tie to

the judicial process just because they are made by a prosecutor” and the “conduct of a

press conference does not involve the initiation of a prosecution, the presentation of the

state's case in court, or actions preparatory for these functions”, the statements seemed

to have been geared at provoking public condemnation and were a gratuitous humiliation

that serves no societal purpose at all but a grand political manoeuvre aimed at side-lining

his political role and influence through the abuse of the prosecution power. The stratagem

was designed to mislead the public in a fundamental way for no context was given, no

elaborate facts were stated to give the listeners independent means of evaluating the

strength of the so-called “prima facie evidence.” Furthermore, at the time they were

uttered the admissibility of the evidentiary material and documents on which the NPA

was relying had not even been tested in court or properly admitted in accordance with

the usual rules of procedure.

130. A naming and shaming punishment is one in which a convicted criminal is subjected to

embarrassment as part of a sentence. A prosecutor has the responsibility in terms of the

constitution and the NPA Act. This responsibility carries with it, specific obligations to

see that the defendant is accorded procedural justice and that guilt is decided upon the

basis of sufficient evidence. Courts in other countries have not hesitated to condemn

tactics similar to those employed by Mr Ngcuka in this case. This court should find that

the conduct of Mr Ngcuka to be in conflict with his fundamental constitutional

 69

obligations. He should have been aware that press statements by prosecutors –

particularly while criminal investigations and trials are ongoing – pose several significant

dangers including undermining the constitutional integrity of a prosecution. Mr Ngcuka

knew that this was a case where intense media interests in the criminal proceedings

involving allegations of corruption and bribery against a sitting Deputy President would

inevitably follow. His secret briefings with a few handpicked editors of newspapers

appear to have been aimed at influencing an adverse public reaction against Mr Zuma.

He must be taken to have known that a prosecutor’s extrajudicial comments can

jeopardize an accused’s rights to a fair trial by implanting suggestions of guilt in the

minds of the public before the charges can be fully and fairly exposed in a court of law,

thus undercutting the presumption of innocence to which all accused persons are

constitutionally entitled. In fact, to see the egregious disregard of his public office and

constitutional duties, when Mr Zuma specifically raised this very issue, the NPA

derisively and arrogantly told him to “sue us”.

131. The NPA’s statements to the media and the latter’s erroneous attribution of statements to

Judge Squires by the SCA irreparably destroyed Mr Zuma’s dignity, and become a

significant thorn in the flesh of his political career. Even if he is acquitted, the significant

taint left by the NPA’s accusations of wrongdoing may never wash entirely clean as

Mr Zuma will always be considered a public servant who failed the test of his

revolutionary morality.

132. Finally, the court must pronounce on the impact of Mr Ngcuka’s media statement in

relation to Mr Zuma’s constitutional right to remain silent. If, as in this case, the NPA’s

theory of its case is widely broadcast, an accused may feel compelled to respond rather

than remain silent and put the state to its burden of proof. For each of these reasons, some
 70

curtailment of a prosecutor’s comments to the media may be necessary to safeguard the

fairness and accuracy of adjudicative process.

133. This court must appreciate that the NPA’s conduct of trial by proxy and the public

condemnation and branding of Mr Zuma as Mr Shaik’s unindicted co-conspirator

without affording him a forum in which to vindicate his rights violated sections 9, 10, 12

and 14, 34 of the Constitution.

134. Faced with this plea, the court should determine whether the approach that allegations of

Mr Zuma’s criminal wrongdoing could be fully ventilated during Shaik’s trial without

regard to his constitutional rights being affected. So long as Mr Zuma was not publicly

charged or indicted, he was not considered an “accused” and as such had no standing

worthy of legal recognition. In addition, since the trial was taking place in a courtroom

open to the public and members of the media, so the logic went, everything was fair game

and press freedom had to be allowed to trump the unindicted co-conspirator’s

constitutional rights. Besides the gross prosecutorial missteps at the press conference, the

conduct of the trial by proxy was carefully designed to produce the type of constitutional

prejudice that Mr Zuma suffered here in terms of public condemnation and more

strategically, the quality of evidence that could be used against him following the

successful prosecution of Mr Shaik.

135. The NPA used the media precisely for the purpose of inflicting reputational damage and

discrediting Mr Zuma’s political role. Having done so, it then orchestrated even the

media coverage of the trial ensuring that every negative or damaging testimony about

Zuma was given notoriety. However, no matter the form that the NPA chose to publicly

identify Mr Zuma, the public identification of an alleged unindicted co-conspirator

clearly implicates his privacy, reputational and economic interests. The NPA’s strategy
 71

of charging Shabir Shaik alone and then using his trial as a trial by proxy for Zuma has

already been questioned by several judges of our highest courts.

136. The court should hold that the NPA’s public smear accomplished by the public naming

of Mr Zuma and announcing the availability of the prima facie evidence of his

criminality at a press conference was even more heinous. The damage to his reputation

as unindicted alleged corrupt politician is two-fold. First, he, as an unindicted person,

was and continued to be branded as a “criminal” with all the accompanying damage to

his reputation. Also, however, because of the nature of this case, the unindicted co-

conspirator is labelled as “corrupt politician” who takes bribes and ethnic stereotypes

such as “being controlled by Indians” were invoked, thus multiplying any damage done

to Mr Zuma’s name.

137. Furthermore, Mr Zuma’s case specifically has gained wide notoriety through many

media outlets, thus increasing the damage done to him - the alleged unindicted co-

conspirator’s privacy, reputations and economic well-being. As in In re Smith, where

“the news media carried many accounts concerning the ... bribery scandal, and,..

[where] the news media reported that, as a matter of public and official courtroom

record,” the Mr Zuma was involved in the scandal, here the intensity of mainstream

media reports misled even the SCA to adopt the same terminology in describing me as

having a “generally corrupt relationship” with Shaik. This misreporting of the true

findings of Judge Squires caused a major embarrassment to our judicial system in a

manner that underscores the irreparable nature of the harm visited upon Mr Zuma. The

SCA had to issue a further clarification judgment which in a sense confirmed what the

court a quo in the Shaik case had in essence not found that Mr Zuma had a generally

corrupt relationship with Shaik.

 72

138. In assessing the facts within the prism of the Constitution, the court should find that there

is unequivocally no legitimate governmental interest in publicizing the names of

unindicted co-conspirators during pretrial proceedings because no government interest is

sufficient to justify stigmatizing private citizens as criminals without affording them

access to any forum for vindication.

139. Therefore, the court, faced with the detailed facts of the NPA’s conduct should have

found that there is nothing that the NPA can offer in his case that would rise to the dignity

of a substantial governmental interest or public interest.

140. The question that this court must engage with is whether the NPA’s real objective in

publicizing the allegation that it had “prima facie evidence” and its decision not to indict

Mr Zuma with Shaik. Other courts as the NPA have dismissed the motive as irrelevant

to the exercise of prosecutorial discretion on the authority of an SCA judgment17 of

Harms DP. It is clearly evident that the public smearing of Mr Zuma as an unindicted co-

conspirator and as having a “generally corrupt relationship” with a person convicted of

corruption and bribery has severely and irreparably damaged Mr Zuma’s fair trial rights

and his dignity.

141. The overall effect of stigmatization by being branded a criminal and a corrupt politician

even by the courts and without any due process hearing has been quite severe and has

been nothing short of constitutionally perverse. Politicians from major political parties

(such as DA and the EFF) structured their political programmes and campaigns on his

removal from office based on corruption allegations on Mr Ngcuka based on his prima

facie statement. As far as political discourse on the issue is concerned, the media and

opposition political parties treat Mr Zuma as though he is guilty of the crimes that he not

17
Zuma v NDPP (Harms J)
 73

charged with by Mr Ngcuka. Justifying Mr Ngcuka’s despicable conduct against

Mr Zuma by the court a quo simply entrenches within the prosecutorial system a

disregard of the supreme duty to comply with the law.

142. The court must have regards to the fact that the NPA’s trial tactics including trying

Mr Zuma by proxy, and a failure to employ prophylactic measures during all the stages

of the Shaik trial violated international norms and our Constitution in a manner that

irreparably damaged his right to fair and impartial trial.

143. The court must reference its assessment of the NPA conduct against international

jurisprudence. If it does so, it would accept that the trial by proxy in the court of world

opinion and in a court of law during the Shaik trial is totally inimical to due process and

inconsistent with internationally accepted prosecution norms. At a minimum, and as

international jurisprudence shows, our courts may not sit idly by when faced with

evidence of egregious violations where a trial implicates the constitutional rights of

uncharged third parties. The fair trial rights of an unindicted accused would be

jeopardized by having them identified by name during the course of criminal proceedings

in which their participation is not sought. This is what amount to trial by proxy and is

completely inimical to our constitutional scheme. The court must therefore align itself

with the internationally accepted norms on prosecutions and condemn the NPA for its

conduct against Mr Zuma.

144. To paraphrase again, regardless of what criminal charges may have been contemplated

by the NPA against Mr Zuma for the future, it is difficult to perceive how the interests

of the criminal justice system were advanced at the time of the Shaik hearings by such

an attack on Mr Zuma’s character and the claims about alleged “corrupt relationship”

which subsequently received judicial acceptance. When that happened, the court should
 74

hold, is that the presumption of innocence, to which every criminal accused is entitled,

was subverted and violated by the NPA who uttered statements which implicated

Mr Zuma in criminal conduct without affording him a forum for vindication.

145. In Mr Zuma’s case, there is an even more compelling reason for the court to show its

strong disapproval of the NPA’s actions. Had the prosecution team been more candid

and forthright with Judge Squares about their future intentions to prosecute Mr Zuma,

the judge would probably have put in place some prophylactic measures designed in ‘the

interests of justice pertinent to the pending trial to minimise, if not eradicate, the risk

that popular perception will regard the crucial question in the Zuma case as having

already been made’ as the SCA observed. The NPA’s cloak and dagger strategy deceived

all involved. The NPA pretended that Mr Zuma would not be prosecuted and prevented

him from asserting his extremely limited “rights” during the Shaik trial. Absent an

unequivocal grant of immunity by the NPA to Mr Zuma it would have been ill-conceived

and highly risky for him to testify for Shaik without waiving his guaranteed constitutional

rights, including rights to silence and against self-incrimination. Most egregious the

NPA’s strategy resulted in the trial court making findings that implicated Mr Zuma in his

absence.

146. It is also a matter of record that the trial court was prevented by the NPA’s strategy from

taking appropriate measures during Shaik’s trial to balance the interests of the NPA in

naming and putting Mr Zuma on trial in absentia as an un-indicted co-conspirators

against the individual harm to him that stems from being accused without having a forum

in which to obtain vindication. In the Shaik case, the NPA ignored an unacceptably high

risk that the NPA strategy would subject Mr Zuma to the torture of public condemnation,

loss of reputation and that unrestrained vitriolic press statements and in-court statements
 75

would leave him “just as defenseless as the medieval prisoner and the victim of the lynch

mob.”

147. To be sure, incalculable harm to our criminal justice system was caused by the NPA’s

unusual and bizarre decision not to charge Shaik and Mr Zuma together while it

maintained that they were co-conspirators. In this regard, the SCA18 has made certain

observations that should have been seen as valuable to Mr Zuma’s plea. Judge Howie in

the SABC v Downer SC NO & others questioned the NPA’s decision not to charge Shaik

with Mr Zuma together and stated ‘Considering next the problem of the pending Zuma

trial, it is not apparent why the prosecuting authorities did not charge both accused in

one case. Their present predicament could well be of their own making.’

148. Second, it is standard prosecutorial practice in most criminal justice systems that, where

practically possible, alleged co-conspirators must be prosecuted together in the same

trial. A reason for the alleged co-conspirators being tried together is that it is in the

interests of justice that all evidence that may be adduced by the different accused be

presented to the court when it decides the question of guilt. It is for this reason that the

practice of joint trials is widely accepted in most legal systems. Judge Howie then went

on to say that “although Zuma's alleged guilt is not in issue in the pending criminal

appeal discussion and consideration of the case against the second respondent will

necessarily involve exhaustive reference to Zuma and may even appear to the outside

observer or listener to portray him as a co-accused and even as criminally liable.

Obviously, it will not be anyone's intention in the pending criminal appeal to consider or

18
South African Broadcasting Corporation Limited v National Director of Public Prosecutions and Others
(CCT58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC); [2006] JOL 18339 (CC) (21
September 2006)
 76

pronounce upon Zuma's alleged guilt but again it is in the interests of justice pertinent

to the pending trial to minimise, if not eradicate, the risk that popular perception will

regard the crucial question in the Zuma case as having already been made.”

149. Unfortunately, the SCA’s observation was too little and too late. The damage had already

been done. The phrase “generally corrupt relationship” was coined by the media and later

adopted by the SCA which then attributed it to Judge Squires who was in turn forced to

publicly deny it. As things stand, there is a wrong judicial finding by the SCA that

Mr Zuma and Shaik have a generally corrupt relationship. The entire episode of naming

Mr Zuma as a party to the conviction of Shaik in the phrase “generally corrupt relations”

– the NPA knew but remained silent about the error in the SCA judgment. Contrary to

the NPA’s duty to ensure that Mr Zuma’s name was not paraded as though it is him who

had been found guilty of the crime of corruption, it kept quiet, forcing the SCA to issue

a supplementary or explanatory judgment in relation to the phrase “generally corrupt

relationship.” That explanatory judgment is very telling in what it says about the findings

in Squires J judgment. In essence, it found that Squires had in essence found that there

was a “generally corrupt relationship” with Zuma.

150. As an unindicted person who has been openly accused by the State of criminal activity,

Mr Zuma not only have a constitutional right to the presumption of innocence but also

have strong liberty and security of person interests which include his reputations, good

names and economic well-being. Furthermore, the NPA knew or should have known that

the court records did not support the comments erroneously attributed to Judge Squires

by the press and later by the SCA. The NPA’s failure to issue a public statement setting

the record straight is an additional aggravating factor that militates strongly in favour of

a finding of abuse of process.

 77

151. Courts have unequivocally stated, that the duty to maintain an “impartial court” must be

construed so as to embrace a requirement that not only the adjudicating body but also the

prosecution exhibit fairness and impartiality in its treatment of an accused person. The

prosecutor as an officer of the court forms an indispensable part of the judicial process –

he is duty-bound to correct false media statements about the court in which he

participated especially statements having serious implications for the integrity of the

court itself. The NPA could not cavalierly sit back in to derive maximum propaganda

benefit from erroneous media statements which subjected Mr Zuma “to the torture of

public condemnation, loss of reputation.” When viewed in light of the fact that the

“generally corrupt relationship” statement emanated from the NPA and the fact that the

NPA never shied away from media spotlight and was never short on press releases, the

NPA’s failure to promptly correct the false media statements appears to have been aimed

at inflicting maximum damage on Mr Zuma. After all, the statement if attributed to a

judge gives judicial imprimatur to the NPA’s action and vindicates its strategy even if it

involved foul blows.

152. Without question, our justice system can only function properly if those charged with

upholding its integrity are dissuaded from cloak and dagger activities through a firm and

unequivocal denouncing such violations. The SCA berated the NPA’s conduct when it

reviewed and set aside the NPA’s decision to terminate Mr Zuma’s prosecution. The

constitutional implications and the damage done by the NPA to our judiciary by the way

in which it handled Mr Zuma’s criminal prosecution, if not properly addressed in this

plea, will inflict maximum damage to our constitutional system. Worse still it will give

the NPA the impression that it can prosecute citizens whose rights it has violated without

any consequences. This would reverse the gains of our Constitution. As Judge Msimang

correctly observed, the treatment that Mr Zuma received in the hands of the NPA was an
 78

aberration and should not be accepted by our courts. He stated that, ‘the problem with

this kind of prejudice is that it closely resembles the kind of punishment that ought only

to be imposed on convicted persons and is therefore inimical to the right to be presumed

to be innocent enshrined in the Constitution.’ Much as such prejudice is inevitable in our

criminal justice system, the accused's right to a trial within a reasonable time demands

that the tension between the presumption of innocence and the publicity of trial be

mitigated.” The court may not ignore this eminently well- conceived principle that

accords with our rights-based jurisprudence and the accused person constitutional

protection. In essence the NPA stripped Mr Zuma of any constitutional protection by its

conduct.

NPA has no title to prosecute in violation of the accused’s right of access to courts which

includes the right to a fair public trial

153. The well-established principle that our courts are bound under the Constitution, to

interpret and apply the constellation of rules relating to criminal proceedings in a manner

which promotes the spirit, purport and object of the Bill of Rights to have a dispute

decided in a fair hearing before a court. Section 7(2) of the Constitution read with the

oath of office of the NDPP and NPA officials require the NPA to promote, protect

advance and fulfil the Bill of Rights. These are binding constitutional requirements on

the NPA which the NPA abrogated to pursue a politically motivated trial of Mr Zuma.

The NPA has no title to conduct an unjustified discriminatory or selective prosecution.

It has no constitutional title to prosecute in a manner that causes unjustifiable

constitutional prejudice to an accused.

154. The denial of Mr Zuma’s right of access to the courts is occasioned by the NPA’s failure

and refusal to charge him in August 2003 when it announced that it had prima facie
 79

evidence against Mr Zuma.

155. It is very significant that this right of access to court is under a separate provision in

section 34 of the Constitution and not merely subsumed under the section guaranteeing

the right to a “fair trial” in section 35(3). For the purpose of articulating the legal

argument on the denial of access to court, the focus should be on the NPA’s public

accusation of Mr Zuma during the 2003 press conference in which it announced that there

was prima facie evidence of criminal wrongdoing against him - and its subsequent failure

(for a period of 22 months period) to file charges against him. The dispute between the

NPA and Mr Zuma started in August 2003 when the NPA announced that it was not

charging him even though there is prima facie evidence of criminal wrongdoing. The

NPA held and still holds the key to the door of the criminal court. It is a key that is

exclusively in the hands of the prosecution. The prosecution title is worn only by the

NPA. In this case, it simply abused and exploited its monopoly of the title or power to

bring Mr Zuma to the court by naming him as someone against who there was prima

facie evidence of criminal wrongdoing but who it would not give access to court for the

protection of his rights.

156. The Constitution and common sense require that a prosecutor acts expeditiously to

provide a forum for criminal litigation (by filing charges) in court, once a prosecutor has

declared to the whole world that there is “prima facie evidence” of criminal wrongdoing.

A press conference does not give or affirm the right of an accused person to defend

himself or herself against any evidence of criminal wrongdoing – prima facie or not. This

is especially crucial when the prosecutor has tarred and feathered an individual citizen in

the press. This makes perfect sense since under our criminal system of constitutional

justice, the prosecutor (public or private) usually holds the key to the criminal court. An
 80

individual who is being falsely accused by a prosecutor has very few options to vindicate

his rights. The prejudice to the accused which would be caused by a public stigmatization

at this stage remains incalculable. The public interest in the expedition of the conclusion

of any criminal trial and the court’s interest in adjudicating the rights of the accused

(indicted and unindicted co-conspirators) all militate strongly in favour of recognizing

the accused’s right of access.

157. The deliberate strategy in delaying to charge Mr Zuma for the period between August

2003 and June 2005 contravened the right to a fair trial as envisaged in section 35(3) of

the Constitution. The NPA’s argument that Mr Zuma was not an “accused person” until

he was formally charged in June 2005 is an argument intended to sanitize the gravity of

the NPA’s violations. The fact of the matter is that NPA’s misuse of the courts process

during the Shaik trial to put Mr Zuma on trial by proxy as well as the prejudicial delays

that followed.

158. While the NPA has a discretion when to lay charges against an accused, it does not have

the right to use the court’s process improperly, ‘official public smear of an individual

when that individual has not been provided a forum in which to vindicate his rights. The

courts have aptly described such actions by prosecutors as misconduct subjecting victims

like Zuma “to the torture of public condemnation, loss of reputation” which assumes

egregious proportions when such person is denied an authoritative judicial forum in

which to defend himself. Because the right of access to the courts is self-standing and is

not subsumed under section 35(3) which deals with “fair trial” rights

159. Mr Zuma’s right to a fair trial does not dependent on there being a “formal” accusation

or indictment. Our courts should not allow abuse of prosecution by the NPA of more than

fifteen years after Mr Zuma was subjected to the torture of public condemnation and after
 81

he has suffered irreparable harm due to the prosecution’s misuse of its discretionary

power to file criminal charges.

160. During Shaik’s trial, the NPA publicly refrained from filing charges against Mr Zuma

but continued its flurry of rhetoric and media churning of allegations against him in a

manner showing clear abuse of the legal process. It punished Mr Zuma leaving him with

no effective legal remedy. After the damage was done through the abuses in the Shaik

trial, the NPA now seeks to use the courts to whitewash its constitutional violations. The

court should not permit the NPA to do so.

161. The fact that the NPA routinely and with unrestrained passion labels Mr Zuma’s attempt

to assert his constitutional rights against abuse of prosecution authority as a unjustified

response; the fact that the NPA does not even acknowledge that it has treated him badly

by any standards of acceptable prosecution, demonstrates its loss of constitutional

credibility to remain custodians of decisions to prosecute Mr Zuma within the context of

our Constitution. The NPA has not restrained itself from deriding Mr Zuma’s exercise of

his rights as an abuse of our Constitution. The label Mr Zuma’s robust exercise of

constitutional rights is derided as “stalingrand” – which is euphemism for reckless

attempts to avoid being prosecuted demonstrates the vindictive manner in which the NPA

handles the prosecution.

162. The manner in which the NPA has conducted itself therefore violated its obligations to

ensure that Mr Zuma’s prosecution was conducted within the framework of its title –

guaranteeing his constitutional rights to due process and the right to a presumption of

innocence.

163. Everyone has the right to be presumed innocent, and treated as innocent, until and unless

they are convicted according to law in the court of law. This right has the highest
 82

protection reflected in numerous international instruments.19 This principle has firm and

sturdy roots in the Constitution and has been readily accepted and applied by our courts.

164. The right to be presumed innocent applies not only to treatment in court and the

evaluation of evidence, but also to treatment before trial. It applies to suspects, before

criminal charges are filed prior to trial, and carries through until a conviction is confirmed

following a final appeal. This right undergirds all other “fair trial rights” including the

presumption of release pending trial; the right to trial within a reasonable time or to

release from detention; the right not to be compelled to testify against oneself or confess

guilt and the related right of silence are rooted in the presumption of innocence. The right

to the presumption of innocence applies to all other public officials, including the

prosecution authorities and even the presidency.

165. In Mr Zuma’s case, the impugned statements by Ngcuka were actually made in a context

independent of the criminal proceedings themselves, they were made at a press

conference and were therefore clearly in violation of Mr Zuma’s constitutional rights.

These were not the remarks that were necessary to inform the public of the nature and

extent of the prosecutor’s action and they served no legitimate law enforcement purpose.

A prosecutor in a criminal case shall “refrain from making extrajudicial comments that

have a substantial likelihood of heightening public condemnation of the accused…” How

else could the NPA (through Ngcuka) inform the public of the nature of the corruption

charges against Shaik or explain their decision not to charge Mr Zuma in 2003 without

laying bare the allegations and evidence in the prosecuting authorities files even if it

19
Article 11 of the Universal Declaration19, Article 14(2) of the ICCPR19, Principle 36(1) of the Body of
Principles, Article 7(1)(b) of the African Charter, Paragraph 2(D) of the African Commission Resolution, Article
XXVI of the American Declaration, Article 8(2) of the American Convention, Article 6(2) of the European
Convention19, Article 21(3) of the Yugoslavia Statute, Article 20(3) of the Rwanda Statute, Article 66 of the ICC
Statute.
 83

meant extensive reference to Mr Zuma’s alleged role? After all, in a bribery or corruption

case it usually takes two to tango. The answer is simple.

166. There were virtually no safeguards against adverse publicity and no restraints on

Mr Ngcuka during the investigatory stage of Mr Zuma’s case. The cult of celebrity

prosecutor asserted itself and the NPA violated the most basic principles observed by

prosecutors throughout the constitutional systems of the world. The NPA failed to

comply with mechanisms to prevent publication of unwarranted charges against an

innocent target of an investigation whom the prosecutor may ultimately decide not to

indict. In our country, just like in other mature democracies human dignity is a basic

constitutional right and every person is presumed to be innocent until he or she is proven

guilty in a court of law. It is common cause that the NPA’s handling of Mr Zuma was

deplorable and dogged by numerous unauthorized leaks to the media and some persons

in that office kept flouting the prohibition against the disclosure of information – this

continues to date – with the NPA papers against Mr Zuma handed over to the media to

magnify its condemnation of him. The incalculable damage to the credibility of our

justice system is immense. The NPA is well aware of allegations that it was being used

by certain individuals to advance a political agenda. It was aware that the investigation

of involving Mr Zuma was essentially a matter interfered with by foreign intelligence

organisations working in collaboration with the officials in the DSO. Mr Zuma’s case

has the unique distinction of being the only case where a state prosecutor publicly

accused a citizen of criminal wrongdoing in that there was “prima facie evidence” of

corruption but would not be subjected to a criminal trial. The decision of the NPA that it

had no winnable case was not for the NPA to make but for the Courts – as the Court has

held that the NPA had no power to terminate Mr Zuma’s prosecution without the Court’s

imprimatur. It is not consistent with the principles of lawful prosecution to prosecute

 84

only where the case against the accused is winnable. Prosecution are about not losing or

winning cases but about presenting evidence to the Court to enable the Court to determine

whether the accused is guilty of a crime. The NPA could not decide only its own that it

had prima facie evidence of criminal wrongdoing, announce it to the public and then

judge its chances of securing a conviction. The obligation of the NPA was to present the

prima facie evidence of corruption and thereafter leave it to the Courts to determine

whether such evidence met the criminal standard of beyond of a reasonable standard.

167. The NPA failed to appreciate the scope of its obligation in announcing that it had prima

facie evidence of criminal wrongdoing against Mr Zuma which it believed was not

winnable in Court.

168. The delays in commencing a lawful criminal prosecution should disentitle the NPA from

conferring title on its officials to prosecute a delayed criminal prosecution. The NPA’s

argument that Mr Zuma was jointly liable for the conceded unreasonable delay in his

prosecution is demonstrative of their failure to appreciate the scope of the constitutional

obligation. The accused person has no joint constitutional liability over his criminal

prosecution. The obligation on the NPA under section 35(3) is only binding on the NPA

and it alone. There is no constitutional obligation on the accused to bring his trial within

a reasonable time.

169. The right of an accused to have criminal proceedings started and concluded without

undue delay or within a reasonable time is well established numerous international

conventions. The evolution of this right to trial without undue delay can be traced from

the days of Magna Carta through the development of the common law to its refinement

in human rights legislation in many common law jurisdictions including our own.

170. The guarantee of prompt trial in criminal proceedings is tied to the right to liberty,
 85

security of the person, the presumption of innocence and the right to defend oneself. It

aims to ensure that an accused person's fate is determined without undue delay. It is

aimed at ensuring that a person's defence is not undermined by the passage of inordinate

amounts of time, during which witnesses' memories may fade or become distorted,

witnesses may become unavailable, and other evidence may be destroyed or disappear.

At the start of this criminal trial, the NPA announced, without naming its witnesses, that

many of them had died or became senile. It is also aimed at ensuring that the uncertainty

which an accused person faces and the stigma which attaches to a person charged with a

criminal offence, despite the presumption of innocence, are not protracted. The right to

be tried promptly encapsulates the maxim that justice delayed is justice denied. The NPA

has no title to violate this sacred principle.

171. Predictably, the NPA does not address the “prima facie evidence of corruption”

comments or the period between August 2003 and August 2005 when Shaik’s trial was

used to put Mr Zuma on trial in absentia. In a feeble attempt to sidestep this reality and

in desperation, the NPA invokes the “exercise of prosecutorial discretion” excuse and

claims that its actions in not charging Mr Zuma with Shaik may not be impugned as such

charging decisions are not subject to judicial review. Unfortunately for the NPA, this

Herculean effort is woefully inadequate and suffers from no less than four infirmities.

The first and most obvious is the dismal failure to appreciate the explicit instructions

given to our judges in section 39(1)(a) of the constitution which reads: "When

interpreting the Bill of Rights, a court, tribunal or forum must promote the values that

underlie an open and democratic society based on human dignity, equality and freedom."

172. The second frailty in the NPA’s argument is that a mere comparison of the language of

our Constitution with its Canadian, New Zealand and European counterparts reveal the
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shallowness of the NPA’s analysis. The language in Article 6(1) of the European

convention is as follows: “In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair and public hearing within

a reasonable time by an impartial tribunal established by law”. In a similar vein, s11(b)

of the Canadian Charter uses a specific term for one “charged” with an offence "to be

tried within a reasonable time." Likewise, Section 25(b) of the New Zealand Bill of

Rights Act states that: “Everyone who is charged with an offence has, in relation to the

determination of the charge, the right to be tried without undue delay.”

173. The third and most obvious frailty is the NPA’s inability to appreciate that even if the

courts were to accept the absurd argument that pre-charge delay is not relevant to the

determination of the length of the "unreasonable" delay referred to in section 35(3) of

our Constitution, it is certainly relevant to an assessment of the fairness of the

proceedings required by this section of the Constitution and the doctrine of abuse of

process. Under the circumstances of Mr Zuma’s case, the pre-charge delay would

certainly have an influence on the overall determination as to whether post charge delay

is unreasonable. This is so even if a court was somehow inclined to rule that the pre-

charge delay of itself is not counted in determining the length of the delay. That pre-

charge delay is relevant under section 35(3) of our Constitution even if a court subscribes

to the view that it is not the length of the delay which matters but rather the effect of the

delay upon the fairness of the trial. Pre-charge delay is as relevant as any other form of

pre-charge or post-charge conduct which has a bearing upon the fairness of the trial. After

all, in Mr Zuma’s case, the “pre-charge” period was one during which the NPA

improperly used the press and the court’s process in Shaik’s trial for official public smear

of an individual when that individual has not been provided a forum in which to vindicate

his rights. It is precisely that kind of prosecutorial misconduct which calls into question
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the title of the NPA to put Mr Zuma on trial this time around.

174. Fourth and most important, the NPA’s incantation of “prosecutorial discretion” is more

like whistling past a graveyard. Judge Msimang has already told the NPA in plain English

and in no uncertain terms what he thought of the NPA’s litigation strategy and overall

performance in handling Mr Zuma’s case.

175. Even in common law countries, the purpose of the existence and exercise of this

discretionary power to dismiss cases for abuse of process is to ensure that there should

be a fair trial according to law. As explained by the High Court of Australia in Jago v.The

District of New South Wales and others 1989 168 CLR 23, even in a common law

country without constitutionally guaranteed right to a speedy trial (separate from the right

to a fair trial), if "…circumstances exist in which it can be seen in advance that the effect

of prolonged and unjustifiable delay is that any trial must necessarily be an unfair one,

the continuation of the proceedings to the stage of trial against the wishes of the accused

will constitute an abuse of that curial process." (per Deane, J. p.59). An available remedy

at common law for such an abuse of the process is a stay of the proceedings where it

appears that the effect of the unreasonable delay is in all the circumstances that any

subsequent trial will necessarily be an unfair one or that the continuation of the

proceedings would be so unfairly oppressive.

COMPARATIVE APPROACH ON THE ISSUE OF UNREASONABLE DELAY: NPA

HAS NO TITLE TO DELAY UNREASONABLY IN PROSECUTING AN ACCUSED

176. The issue of unreasonable delay disentitles the NPA from performing its prosecution

duties – for there is no lawful title to prosecute with unreasonable delay. The title is to

prosecute timeously and without unreasonable delay. The NPA cannot confer title on a

prosecute to prosecute with unreasonable delay.

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177. An examination of comparative jurisdiction demonstrates how the title to prosecute is

lost where the NPA has acted with unreasonable delay.

178. The Supreme Court of Canada in R.v. Askov (1990) 79 CR (3d) 273 interpreted the right

under s11(b) of the Canadian Charter for one “charged” with an offence "to be tried

within a reasonable time". Cory, J., giving the judgment of the majority, took four factors

into account when determining whether there had been unreasonable delay: (1) length of

the delay, (2) the explanation for the delay, (3) waiver, and (4) prejudice to the accused.

The factors he took into account are little different from those suggested by Powell, J. in

Barker v.Wingo and he also recognised the need to engage in a balancing exercise. The

aim of this test is to provide a method based upon the underlying purposes of s11(b)

which will permit courts to balance the applicable substantive factors in a consistent

manner. Later on, in Morin (1992) 12 CR (4th) 1, another case dealing with undue delay

in prosecution of cases or applications under Section 11(b) of the Charter, Supreme Court

of Canada the court emphasised discretion and the need to establish prejudice. Morin is

the leading. The factors that are to be considered in analysing how long is too long are:

The length of the delay; waiver of time periods; the reasons for the delay which include

inherent time requirements of the case, actions of the accused, actions of the Crown,

limits on institutional resources, and other reasons for delay; and finally, prejudice to the

accused.

179. Contrary to the NPA’s argument that section 35(3) of our Constitution is limited solely

to post-charge delay, the circumstances of the pre-charge delay should be considered

when assessing the reasonableness of the post-charge delay. The pre-charge is a factor

that has an influence in identifying a principle of fundamental justice, but that factor does

not by itself imply a breach of fundamental justice. The Canadian courts could never
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have fathomed a situation where any citizen could, prior to the charge, “stand accused

before the community of committing a crime” or have their security of person violated by

‘overlong subjection to the vexations and vicissitudes of a pending criminal accusation’

without being provided a forum in which to defend themselves. Mr Zuma was informed

and publicly accused by the NPA as a guilty crook walking back in August 2003.

180. To sum up, the issues can be properly stated as follows: the public naming of Mr Zuma

as a person against whom evidence of criminal wrongdoing existed triggered the

prosecution’s duty to initiate proceedings or to provide a forum in which he could have

a name-clearing hearing or trial. Given some courts’ condemnation of prosecution’s

actions of “stigmatizing private citizens as criminals while not naming them as accused

or affording ... affirmatively opposing access to any forum for vindication” the NPA lost

title to prosecute as a consequence of unreasonable delay between August 2003 and June

2005. More importantly in terms of the equal protection clause in section 9(1) of the

Constitution, the NPA, having named Mr Zuma as a co-conspirator with Shaik in

criminal wrongdoing, was duty bound to bring the prosecution as expeditiously as

possible to avoid the constitutional pitfalls of its title.

181. In short, the NPA’s failure to indict Mr Zuma was entirely due to both (a) intentional

tactical decision charge Shaik as a trial run for Zuma and (b) gross prosecutorial

negligence in that the NPA failed to appreciate that a prima facie evidence would require

the prosecution to initiate criminal prosecution. In any event, the NPA’s public

announcement obligated the NPA to bring Mr Zuma to court, that is, provide him with a

forum in which to vindicate his rights. The NPA’s conclusions to the contrary or its

erroneous assessment of the facts and the law is no excuse. As shown above, the courts

have already criticised the NPA’s tactical decisions on several occasions and are not
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likely to find the same impugned decisions to be legitimate reasons for the delay. There

is ample evidence that the NPA’s actions intentional and designed to delay charging

Zuma until such time they had tested his case with the Shaik trial.

182. Another point that bears repeating is that the prosecution’s decision to charge Shaik

separately from me reflected a deliberate State strategy which was aimed at prejudicing

Mr Zuma while empowering the NPA unduly to fight him in a certain future prosecution.

At least the NPA has conceded to abuses in the prosecution of Mr Zuma’s case the nature

of which the NPA disentitled to prosecute Mr Zuma.

183. The bouquet of evidence submitted on oath on behalf of the NPA unequivocally

demonstrates orchestrated media leaks, political and intelligence manipulation of

prosecutorial discretion, unlawful interference in the work of prosecutors working on

Mr Zuma’s prosecution, illegal investigations designed to prejudice Mr Zuma and

advantage the prosecution and the trial strategies that include trial by proxy.

184. On the 23 August 2003 Sipho Ngwema, spokesperson for Mr Ngcuka, hinted that on

reasons why the NPA said there was a prima facie case of corruption against Mr Zuma

and other details of the case ‘were contained in the charge sheet against Shabir Shaik,

who was implicated in alleged corruption around the government's arms procurement

process. Responding to Mr Zuma’s comments, Mr Ngwema said "It is unfortunate that

we cannot release the basis of our assertion that there is a prima facie case of corruption.

'Those things will come out in court in the matter against Shaik' . "However those things

will come out in court in the matter against Shabir Shaik." That is a clear admission that

a tactical decision was made to use the Shaik trial to establish a case against Mr Zuma.

There is a memorandum drawn for the attention of the NDPP by Downer which confirms

beyond a doubt that decision not prosecute Mr Zuma with Shaik was to test the waters
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for the Zuma prosecution.

185. What is also clear is that the NPA’s handling of Mr Zuma’s prosecution has been

characterized by the polar opposite of due diligence. The SCA, per Navsa JA sternly

reprimanded the NPA for its tardiness and for cavalierly flouting the prosecutorial

discretion in terminating Mr Zuma’s prosecution. The strings of prosecutorial

transgressions disentitle the NPA from conducting any trial against Mr Zuma.

186. The NPA’s approach is bullish and full of arrogant disregard of its supreme constitutional

obligations, incomprehensible lack of competence to realise the damage it has done in

ensuring that Mr Zuma has his day in court based only on the Constitution.

CLEAN HANDS DOCTRINE AND LOSS OF TITLE TO PROSECUTE

187. The issue of title to prosecute is linked to the doctrine of clean hands – for the title is only

given to the NPA to prosecute in accordance with the law. Where there is evidence, as in

this case, of unconstitutional conduct, criminal interference and gross abuse of

prosecutorial discretion, the title to prosecute is lost on the clean-hands doctrine. That

means that the power or title to prosecute is reserved only for lawful prosecution. Where

there is gross misconduct in exercising prosecutorial powers the NPA does not retain the

constitutional credibility to conduct a lawful prosecution. In terms of section 106(4) of

the CPA, Mr Zuma is entitled to demand finality in his case - on the basis that

prosecutorial misconduct bars a fourth attempt by the NPA to prosecute him.

187.1. The first attempt was under Ngcuka – who deliberately failed to prosecute for

tactical reasons.

187.2. The second was under Pikoli – which as a consequence of gross incompetence

and disregard of prosecutorial policies and directives resulted in the Msimang J

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reprimand and struck out of the roll.

187.3. The third was under Mpshe who (so the SCA found) unilaterally and unlawfully

terminated Mr Zuma’s prosecution on the basis of unconscionable prosecutorial

abuse by the NPA of prosecution processes and power.

187.4. The fourth is one which Mr Downer now attempts – which he seeks to do by all

means necessary, evening denying obvious prosecutorial lapses that the NPA

should have had no difficulties accepting. This is the decision of Shaun

Abrahams. If the conduct of the prosecuting prosecutors before Msimang J

could not be tolerated for an 18 months prosecution abuse, nothing could justify

a court condoning a combined period of sixteen years of prosecutorial abuse and

blunder after blunder?

188. Moreover, this trial court must find that the NPA has no title to prosecute in conditions

that are consistent with its central constitutional mission. Aside the excessive delays,

there are other irrevocable constitutional infirmities committed by the NPA that stand as

evidence against it in relation to lawful title to prosecute. Simply put, the NPA should

have been held to lack the constitutional credibility to conduct a lawful and fair criminal

trial against Mr Zuma and directed to abandon its abusive and unlawful mission to

prosecute a man whose rights it has routinely violated from as far as 2003 when they

investigated him.

189. Under section 35(3) (d) of the Constitution, the five-year delay between the initial public

accusation and the filing of charges in December 2007 was excessive in the extreme and

is sufficient to give rise to presumptive prejudice. The NPA has already been found by a

court of law (Msimang J) to have essentially engaged in reckless acts which caused

severe prejudice to Mr Zuma’s rights.

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190. The court should find that the NPA does not, on the clean-hands doctrine, have title to

prosecute Mr Zuma and in terms of section 106(4) acquit him. Not only is the dirt in the

delay to prosecute which, in Mr Zuma is presumptively prejudicial, the delay in this

instance was accompanied by NPA’s egregious acts of prosecutorial misconducts

ranging from unlawfully investigations (Browse Mole report) abuse of prosecutorial

powers (spy tapes) to adverse media publicity generated and manipulated in part by the

NPA itself to discredit Mr Zuma. The entire prosecution of Mr Zuma appears to be a

deliberate intelligence and political plot to discredit Mr Zuma’s political standing.

191. Regarding the prejudice factor, the courts must determine whether Mr Zuma should be

required to demonstrate actual prejudice resulting from the delay in order to demonstrate

loss of title. As a starting point, the NPA does not have title to delay prosecution a case

in which there is prima facie evidence of crime. In any event, the prejudice of the delay

meets the criteria of section 106(4) of the CPA. This requires the courts to revisit the

reasons for and the extent of the delay. There is actual trial prejudice – which is the right

to a speedy trial and to be presumed innocent. In any event in the absence of proof of

particularized prejudice, the NPA’s negligence and a substantial delay will compel relief

unless the presumption of prejudice is either ‘extenuated, as by the accused’s

acquiescence or persuasively rebutted by the NPA. In this case, where the NPA has

demonstrably deliberately negligent and reckless or acted in bad faith, the reasons for the

delay are critical and must be examined closely.

192. Deliberate intent to delay a trial in order to impair the defense is weighted more heavily

against the NPA than delay resulting from mere negligence. That is, whereas in this case,

the NPA engaged in bad-faith delay, the court’s concerns regarding the length of the

delay and substantiating prejudice are much reduced, thereby bolstering an accused’s
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chance for relief. The NPA’s incomprehensible strategy seems to have been to make

statements about Mr Zuma intended for public consumption but it was found wanting

when it came to proceeding to trial with expedition. Msimang J saw through this strategy

and aptly described it as one where the "…state's case limped from one disaster to

another." Even when faced with that unpleasant and unfavourable judicial criticism, the

NPA prosecutors, informed the court that it was "not in a position to continue with the

trial". Msimang J also took notice of an admission by the NPA’s Downer that the NPA

“takes chances every day” in court effectively admitting that the NPA engages in justice

by lottery. It was a case where the NPA thought it permissible to “gamble with the

interests of criminal suspects assigned a low prosecutorial priority.”

193. As a consequence of the NPA’s deliberate strategy to publicly smear Zuma with the

public announcement of prima facie evidence which is not winnable in court, Mr Zuma

suffered serious damage. He was fired as Deputy President of the country but even that

did not earn him a speedy trial which his firing as Deputy President was intended to

achieve. Msimang J captured the essence of the actual prejudice already suffered by

Mr Zuma as follows: “We cannot imagine any case in recent times which has triggered

as much negative publicity in the media as the present one…However, as it was pointed

out in the Sanderson case, the problem with this kind of prejudice is that it closely

resembles the kind of punishment that ought only to be imposed on convicted persons

and is therefore inimical to the right to be presumed to be innocent enshrined in the

Constitution. Much as such prejudice is inevitable in our criminal justice system, the

accused's right to a trial within a reasonable time demands that the tension between the

presumption of innocence and the publicity of trial be mitigated.”

194. In a not so veiled effort to influence the outcome of the hotly contested ANC elections,
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the NPA kept issuing prejudicial media statements about Mr Zuma pending charges

while the ANC conference was underway in Polokwane, Limpopo. It went so far as to

publicize its “draft indictment” and followed it up with the present indictment. The third

form of prejudice—possible impairment of Mr Zuma’s was incalculable. Shabir Shaik’s

“availability” as a witness for Mr Zuma is doubtful and questionable. Given the ruling

of the SCA on the nature of Mr Zuma’s relationship with Mr Shaik, it a risk for Mr Zuma

to use him as a witness. Generally, the loss of witnesses, evidence and the general

dimming of memories that is attendant to the lengthy delay present in a case will

substantially impair Mr Zuma’s ability to defend himself and is an appropriate basis for

an acquittal in terms of section 106(4) of the CPA.

Downer has no title to abuse prosecutorial powers by prosecuting to advance political

objectives

195. The NPA accepts that its processes were criminally interfered with to advance the

political interests of one political faction of the ruling party against another. The NPA

relies on judgment of the SCA per Harms, dismissed the view that a political motive is

irrelevant to assessing whether or not a sufficient basis for terminating a prosecution. The

full court in the permanent stay also lurched on this proposition of the SCA relating to

the status of prosecutorial objectives in testing the lawfulness of a prosecution. With

uncritical reliance, the court in the permanent stay of prosecution found that even where

there was incontrovertible evidence of political manipulation of the prosecutorial

discretion or interference, that did not amount to a grave transgression.

196. The NPA’s evidence on the spy tapes disposes of any questions relating to the dangers

of abusing prosecutorial powers.

197. The law does not operate in a neutral, ahistorical fashion, or independently from the
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underlying power relations in society. Legal procedures can and has been misused to

serve political agendas or for other nefarious ends. Certain kinds of ideological

perspectives can also lead, unwittingly, to human rights violations and can lead people,

even judges, to believe that in this country with its skyrocketing crime rate or corruption

it is acceptable, even desirable to ride roughshod over citizen’s rights. The courts can be

galvanized under the guise of combating crime or corruption, to overlook abuses by

police and to ignore gross misuse of legal process by the prosecuting authorities to

advance political agendas. The courts may say the right things about corruption in politics

or business but maintain a deafening silence even when presented with evidence of

prosecutorial corruption and misconduct from say, the Public Protector as in this case.

Our courts, based on the Constitution, must reject the notion that the elimination of crime

or combating corruption - is thought to be so compelling that highly repressive or

unconstitutional means are seen as necessary for achieving those ends. The NPA has no

title to prosecute in circumstances that do not reflect the terms of the constitutional title.

The NPA must be held to the title of the Constitution.

198. There is also a need to deal with the myth that the NPA has title to abuse state public

powers and organs to fight partisan political battles so to allegedly rid this country of

rampant corruption in high places. Viewed against this background, the court must not

fail to express itself firmly that the NPA has no title to abuse of its constitutional power

to prosecute to advance political goals.

199. The trial courts must be willingness to exercise supervisory powers over the NPA’s

handling of Mr Zuma’s prosecution and to chastise it for abusing its powers to advance

political outcomes. The SCA in SABC v Downer SC NO & others [2006] questioned the

NPA’s decision not to charge me together with Shaik and said that ‘considering next the
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problem of the pending Zuma trial, it is not apparent why the prosecuting authorities did

not charge both accused in one case. Their present predicament could well be of their

own making.” The SCA may be excused in its mild expression of concern at the NPA’s

conduct – but what is puzzling is why the SCA per Navsa JA, faced with admitted

evidence of abuse of prosecutorial misconduct to advance a political agenda of the

magnitude expressed in Hofmeyr’s affidavit would simply shrug it off and insist on the

same NPA to prosecute the victim of their abuse. This trial court must test the title of the

NPA to prosecute Mr Zuma against its own evidence. The NPA’s unlawful self-imposed

short-cuts is not consistent with the title to prosecute.

200. The SCA cautioned that ‘it is in the interests of justice pertinent to the pending trial to

minimise, if not eradicate, the risk that popular perception will regard the crucial

question in my case as having already been made’. Of course, this judicial caution is

correct but was ignored - for the NPA continued to treat Mr Zuma as though he were

guilty of crimes. More importantly there are very key findings by the Courts that lend

credence to the prophetic utterances of the SCA that “the crucial question in the Zuma

case as having already been made.” For example, the finding by the SCA, that there was

a “generally corrupt relationship” with the convicted Shaik has decided –and so the

question of the nature of the relationship between Mr Zuma and Shaik, the basis on which

payments could be paid by one to the other. The NPA as the courts appear to have

determined the question of whether Mr Zuma used his political office to protect and

advance Shaik’s or his personal interest through Shaik.

201. Our courts must not condone the egregious constitutional violations by the NPA on any

basis. It has no title to commit constitutional violations in the process of conducting a

prosecution. This prosecution has all the hallmarks of what political commentators and
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writers have called “the derivative political trial, where the weapons of defamation …and

contempt are manipulated in an effort to bring disrepute upon a political foe.”

202. To maintain public confidence in title of the prosecutors, it is necessary to determine

whether the conduct of the prosecutor conforms to the terms of that title. Downer and

this NPA have expressly conducted themselves outside the terms of the title on which to

perform a prosecution that conforms to the standard of the Constitution. The NPA and

Downer are not impartial and therefore lack an attribute of the title to prosecute. The

impartiality or independence or even the integrity of the NPA is lost in its outrage at

Mr Zuma’s attempt to asset his constitutional rights from being prosecuted under

conditions of constitutional violations.

203. The use of prosecutorial power as a weapon to “evict” Mr Zuma from the political scene

is obvious and is admitted by the NPA. It has no title to do this.

204. The conceded NPA’s constitutional violations, overwhelming evidence of the NPA’s

egregious errors and accompanying violations of Mr Zuma’s constitutional rights. Our

Constitution codifies our political will of entrenching the values of human dignity,

equality, freedom, democracy, and the rule of law. The court a quo failed to appreciate

that Mr Zuma’s political status was irrelevant to whether I should be prosecuted or not.

THE DOCTRINE OF ABUSE OF PROCESS IN ASSESSING TITLE TO PROSECUTE

205. The doctrine of abuse must be applied in assessing the NPA’s admitted misconduct

against Mr Zuma. As starting point, the NPA has no title to conduct a prosecution where

it is found that it has violated the terms of a lawful prosecution.

206. It is well settled legal principle that the court has a power, developed under the common

law, to intervene and safeguard the accused from oppression and to prevent prosecution
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when it would be unjust to permit the prosecution to proceed.20 This jurisdiction can be

exercised in a wide range of circumstances although from the authorities, three principal

situations emerge. (a) The first is where by reason of some circumstance the accused

would be denied a fair trial. (b) The second is where because of some circumstance it

would be unfair to try the accused. (c) The third is where the state has engaged in human

rights violations or abuses in its treatment of the accused.

207. The first situation is more frequently encountered where due to delay or the absence of

important evidence, the defence is prejudiced and the accused would thereby be denied

a fair trial. In the second category it is well recognized that where there has been such

grave misconduct on the part of the police, executive, or prosecution which undermines

or threatens the rule of law, the court may and sometimes should intervene even where a

fair trial can take place. In the third category are situations where the constitutional rights

of the accused have been violated by the state. The NPA committed all the three

circumstances in the three foregoing categories.

208. The most eloquent statement regarding the court’s inherent authority to determine the

outcome of a criminal trial on the basis of the abuse of process doctrine came from the

Canadian Supreme Court’s Amato v The Queen (1982) 69 CCC (2d) 31, 74, where Estey

J said:

"The repugnance which must be experienced by a court on being implicated in

a process so outrageous and shameful on the part of the State cannot be
dissipated by the registration of a conviction and the imposition afterwards of
even a minimum sentence. To participate in such injustice up to and including
a finding of guilt and then to attempt to undo the harm by the imposition of a

20
See, Connelly v. DPP [1964] A.C. 1254, where Lord Reid, at 1296, stated the court had “a residual discretion
to prevent anything which savours of abuse of process”, and Lord Devlin, at 1354, stated the courts have “an
inescapable duty to secure fair treatment for those who come or are brought before them”.Since the
implementation of the Human Rights Act 1998, direct regard should also be had to Article 6 of the European
Convention for the Protection of Human Rights and the related Strasbourg jurisprudence.
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lighter sentence, so far from restoring confidence in the fair administration of

justice, would contribute to the opposite result."

209. These view accord with a number of comparative jurisdictions, who see the granting of

a permanent stay as a way of protecting it from illegal conduct of its officers and to

preserve the purity or credibility of the courts or to protect the integrity of the criminal

justice system.21 See also, Lord Justice Neil’s statement in R. v. Beckford [1996] 1 Cr.

App. R. 94 at 100F, that “the constitutional principle which underlies the jurisdiction to

stay proceedings is that the courts have the power and the duty to protect the law by

protecting its own purposes and functions”.

210. As the English cases make clear, there exists a category of cases where the bad faith,

unlawful conduct or executive manipulation towards the accused is so grievous that an

acquittal of the accused is justified without trial. This is the position akin to a stay of

prosecution – but the CPA provides the facility of section 106(4) which allows the

accused to be acquitted where to prosecute would not be consistent with the title to do

so. In this case, it is the NPA itself that produced evidence of gross violation of

prosecutorial discretion to justify the loss of title in terms of section 106(1)(h) read with

the section 106(4) acquittal.

211. Although the SCA, in the judgment of Navsa JA, referred to the doctrine of abuse, it did

not authoritatively decide whether this doctrine applied to determining the scope of the

NPA’s title to prosecute and the Court’s power to acquit an accused where there are facts

and circumstances that justify a loss of title to prosecute.

212. The examination of the conduct of the NDPP for the NPA which is binding on Downer,

21
See, also, Mills v. Cooper [1967] 2 Q.B. 459 where Lord Parker C.J., at 467, stated that “every court has
undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and
abuse of process of the court”.
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is a further indication that the NPA has no title to prosecute Mr Zuma. Individual acts of

the NDPP in relation to this prosecution does not fall within the title to prosecute. This

court should examine the individual acts of each NDPP to determine whether such

conduct is consistent with the title of the prosecutor.

ON NGCUKA’S CONDUCT

213. Ngcuka’s decision not to prosecute Mr Zuma with Shaik for the reasons that he gave is

the mother of all the constitutional deformities that followed. The explanation of Ngcuka

should be examined against the elementary duties of the NPA. Assessing that explanation

within the context of the duties as set out in the Constitution, the NPA Act, the

prosecutorial policies and directives reveals that the NDPP did not have standing to name

and shame a suspect – condemn him for criminal acts he knew would not amount to a

crime in law and thereafter prevent the suspect from the opportunity of clearing his name.

However innocent the explanation of Ngcuka appears, the question was not whether his

explanation for his despicable conduct was reasonable or not. It should have been

whether the decision of Ngcuka was in accordance with the constitutional and legislative

mission of the NPA.

214. The SCA described Mr Zuma’s dispute with the NPA as one with a “long and troubled

history”. For over a period of about sixteen years, the NPA has failed to take a decision

that accords with its supreme constitutional title to prosecute, culminating in numerous

adverse judicial decisions against it. As a consequence of the NPA’s failure to lawfully

exercise its constitutional powers, Mr Zuma’s constitutional rights to equality in s 9(1),

human dignity in s 10, access to courts in s 34, rights in terms of s 35(1) and 35(3) of the

Constitution have been violated. The constitutional prejudice as a consequence of NPA’s

incompetent and unconstitutional handling of Mr Zuma’s prosecution is so severe and

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gross to amount to a constitutional failure.

215. The first direct prejudice of the unlawful prosecutorial decision was Mr Zuma’s removal

from office by President Mbeki as the Deputy President of the Republic. The perpetual

and irremediable constitutional prejudice was that the name of Zuma became associated

with national corruption without any evidence being brought before a court of law, for

the court to evaluate and determine the veracity of those allegations.

216. Ultimately in judicial exasperation, courts have castigated the NPA for failing to take

lawful prosecution decisions in relation to Mr Zuma.22 The intensity of pretrial litigation

involving the lawfulness of the NPA’s conduct and decisions is in itself an indication that

the NPA has lost its credibility to conduct a criminal trial that accords with the

Constitution.

217. Mr Ngcuka, the first supreme custodian of the constitutional power of the NPA to

prosecute struck the first blow to Mr Zuma’s constitutional rights when he, for political

reasons, took the infamous decision not to prosecute Mr Zuma in circumstances where

he publicly professed to be in possession of prima facie evidence of corruption and fraud

against him. The decision was not only wrong and inconsistent with the elementary

requirements of a prosecution, but fundamentally violated Mr Zuma’s rights. It is clear

that the decision was a calculated political strategy in which Ngcuka would benefit

himself from Mr Zuma’s removal from office as it happened after the Shaik judgement.

Furthermore, we have demonstrated that Ngcuka’s approach intended to run the Shaik

trial for Zuma’s future trial.

218. The decision of Ngcuka drew the ire of the legal community for it was unprecedented

22
S v Zuma (Msimang J) Zuma v NPA (Nicholson J; NDPP v Zuma (Harms DP) DA v NDPP (Full bench –
Pretoria) NDPP v DA (NAVSA DDP)
 103

and may well be the first time in history that a prosecutor publicly refused to prosecute a

suspect against whom there is prima facie evidence of corruption and fraud. Downer

appears to have always held the view that Ngcuka’s decision not to prosecute me with

Shaik to have been wrong. Pikoli, the NDPP that came after Ngcuka, also believed that

the Ngcuka’s decision to not charge Mr Zuma with Shaik was wrong. Downer also

believed that the decision not to charge Mr Zuma and Shaik was wrong and motivated

by political consideration rather than legal ones.

219. Ngcuka’s mobilisation of the media to give them views on Mr Zuma’s prosecution was

also an abuse of power. The example is the blacks-only press conference which he held

to power the narrative of a corrupt politician on one hand and on the other, affording him

no opportunity of an impartial court. He wanted the media to know that the allegations

that he was an apartheid spy had been triggered by influential people (including

Mr Zuma) that he was investigating for corruption. Mr Zuma’s name was mentioned in

that context to the media to inflict the idea that Mr Zuma had engaged in scandalising

Ngcuka or the NPA to prevent him from investigating him. The blacks-only media

conference triggered an unprecedented controversy and placed the NPA in serious

disrepute.

220. The third was Mr Ngcuka’s unlawful involvement and interference in the NPA’s

constitutional decision-making process involving Mr Zuma’s prosecution after he had

resigned from it. There is no doubt that Mr Ngcuka’s actions amounted to unlawful

interference of the nature that was calculated to abuse the NPA for political gains. The

NPA appears to condone this unlawful interference contrary to its mandate to ensure

that such conduct is criminally charged. It is clear that the purpose of that interference

was to use decisions to prosecute Mr Zuma to influence the outcome of a political

 104

process involving the election of the President of the ANC and therefore the Republic.

Hofmeyr’s affidavit sets out a proper assessment of the impact of this blatant abuse of

prosecutorial authority. Ngcuka unlawfully interference constitute a criminal offence in

terms of the NPA act, NPA has to date not bothered to open criminal case against him.

221. The fourth was the NPA’s use of Ngcuka’s affidavit to cover up his misdeed and

criminal conduct. The NPA’s reliance on Mr Ngcuka to defend what is clearly criminal

conduct is inconsistent with the NPA’s constitutional duties. The NPA has no title to

prosecute in these circumstances. The use of Ngcuka’s affidavit is inexplicable – given

what the NPA said about his conduct in the Hofmeyr affidavit. This is a blatant attempt

to subvert the truth about criminal interference with prosecution – which the NPA has

no title to condone or ignore. The NPA’s reliance on his affidavit is an attempt to cover

up this flagrant and unlawful abuse of the NPA constitutional process. It is a disgraceful

as it cannot be justified by reference to the law. The NPA has no title to prosecute on

the strength of what Ngcuka says about his criminal interference in its prosecution.

ON PIKOLI’S CONDUCT

222. Mr Ngcuka’s successor was Vusumuzi Pikoli, (“Pikoli”) who wasted no time to charge

Mr Zuma. His publicly held view is that Ngcuka’s decision not to charge Mr Zuma

together with Shaik was not justified by law or logic. He does not say so in his affidavit

because like others, including Downer he now seeks to provide an analysis of the NPA’s

conduct that seeks to sanitises the gravity of the prosecutorial lapses in order to save the

NPA from a debilitating constitutional embarrassment. Pikoli’s appointment coincided

with the outcome of the Shaik trial in which Shaik had, amongst others, been convicted

of a crime of corrupt in his alleged dealings with Mr Zuma. After that judgment, the

prosecution team advised Pikoli to charge Mr Zuma while the iron of Shaik’s conviction
 105

was still hot. There were many prosecutorial advantages to charging Mr Zuma after

Shaik, so Downer and Pikoli believed - for they now knew from the successful trial-run

of Shaik that their chances of winning against Mr Zuma on similar charges had

significantly improved. The evidence that Ngcuka’s strategy – the NPA’s strategy, was

to run a trial against Shaik as a proxy for that of Mr Zuma – is now irrefutable. Using

the Shaik trial to get to Mr Zuma in circumstances where the NPA had publicly stated

that it had prima facie evidence of corruption and fraud was simply unlawful. The

decision violated Mr Zuma rights in that it deprived Mr Zuma the rights in se 34 and

35, which include to a speedy trial.

223. When Pikoli took over, he did not blink but struck decisively, for Downer and his team

had indicated to him that the NPA now had good evidence and having managed with a

good trial run on Shaik for Zuma, there was a reasonable prospect of a conviction. He

went to inform the President of the Republic that he had decided to prosecute Mr Zuma-

on the basis of an explained courtesy to him. After that he informed the Minister of

Justice and Constitutional Development, Ms Mabandla – it is unclear why this was

done. The last person to know about this decision to prosecute was the target of that

prosecution decision – Mr Zuma. The steps taken by Pikoli do not find any basis in the

law or prosecutorial standards or policies. They appear to have been made to mobilise

political support for the decision to have Mr Zuma prosecuted. There is no title to

prosecute like this.

224. Without much ado, Pikoli sent his crack team of prosecutors who included Mr Trengove

SC to represent the NPA in criminal proceedings before Msimang J. Agreements and

arrangements between the parties were made to start the trial in July 2005. On arrival at

the Court, the large prosecution team, instead of initiating the prosecution as instructed,
 106

dithered and in an embarrassing moment of prosecutorial incompetence and

incoherence, sought a postponement that was not justified by the facts and the events

leading to that day. Msimang J saw through the NPA’s lack of integrity and its

unpreparedness to prosecute, and in an unprecedented judicial rebuke, struck the matter

off the roll. At that time, Mr Zuma was ready to launch a permanent stay of prosecution

but in light of Msimang J’s judgment, that did not material.

225. Following the embarrassing moment, Pikoli was undeterred but again on advice of his

prosecution team authorised an unprecedented wide-ranging search and seizure of

documents in spirited raids never seen even during the apartheid dark days. The target

of these widely publicised vicious raids was Mr Zuma’s private residences and offices

and the offices of his attorneys. These raids were unprecedented for their wide reach,

but even today, it is unclear what evidence was obtained from them that beefed up the

NPA’s case against Mr Zuma. No evidence from those raids appears to be of use to the

NPA. The search and seizure raids triggered intense litigation that was enthralling and

absorbing which ended at the Constitutional Court. Both the Supreme Court of Appeal

and the Constitutional Court handed down divided decisions on the lawfulness of the

raids and seizures. That said, the majority of judges upheld the reach of the warrants.

226. Pikoli was subsequently removed from office in circumstances that drew widespread

criticisms and condemnation. There is strong support for the view that his removal was

an attempt by the executive to interfere with the independence and prosecutorial

discretion of the NPA. Downer believes that Pikoli was removed for standing up against

the executive in his exercise of prosecutorial independence.

227. Arising from his decision to prosecute certain powerful individuals, it appears that he

drew the err of the executive which found his approach to prosecution an unprincipled
 107

and reckless use of very potent powers in his hands. The question one must immediately

ask, accepting that the executive interfered in his prosecutorial powers, is why it is easy

to believe that there was executive interference when the prosecution of a former

National Commissioner of Police was charged with corruption but not when a former

Deputy President of the Republic. Pikoli hits the roof denying any executive

interference where Mr Zuma is concerned but nods in agreement where allegations

relate to executive interference in the prosecution of Selebi. Pikoli fell and in a deal with

the executive exited the NPA before his decision to prosecute Mr Zuma could be carried

through.

228. An acting NDPP was appointed to lead the NPA after Pikoli’s removal was confirmed.

Mokotedi Mpshe assumed the helm of the NPA. The decision to prosecute had been

taken by Pikoli. He, too, immediately took the view that the prosecution should proceed

in accordance with the advice of McCarthy, the lead prosecutor in the prosecution team.

His view was that he would not interfere with the decision of the prosecution team who

he regarded as the lawful functionaries in the NPA to take that decision. His was

confined to reviewing that decision in the event that the prosecutor’s decision was not

in accordance with the NPA Act, prosecutorial policy, directives or code of conduct. He

stood far away from the decision-making process, preferring to receive advice on the

matter. McCarthy took the lead and advised him to charge Mr Zuma sometime in

January 2008 after the ANC elective conference in Polokwane. Mr McCarthy gave this

advice after consulting with Ngcuka – an ex NDPP of the NPA with no authority over

the NPA’s decisions. It is the sinister and unlawful NPA activities in November to

December 2007 that brought Mr Zuma’s prosecution deeper into problems for the

clearest evidence of unlawful and egregious abuse of prosecutorial powers is evidenced

in this period.
 108

229. There is yet an accurate story to be written about the gravity of offence that McCarthy

caused to the NPA’s constitutional credibility to prosecute Mr Zuma lawfully than has

currently been told. It is clear that Mpshe had trusted the integrity of his prosecution

and investigation team to perform their functions in accordance with the constitutional

requirements. When he discovered that McCarthy, the lead prosecutor in Mr Zuma’s

prosecution, had unlawfully engaged the powers of the NPA to seek to influence

political outcomes in the ANC, he lost it. In a decisive moment and in accordance with

his view of his review powers, he terminated the state’s case against Mr Zuma.

Hofmeyr’s affidavit filed on behalf of the NPA is the evidence of how the NPA

evaluated its own conduct vis-à-vis its constitutional powers. In essence, the NPA could

not give title to prosecute under these circumstances.

230. Following the discovery of irrevocable evidence of what can only be described as

unconstitutional and subversive acts of sabotage and gross abuse of the prosecutorial

and investigative powers of the NPA, Mpshe had a crisis of prosecutorial conscience

and boldly decided to terminate Mr Zuma’s prosecution. The true extent of the abuse

that the NPA was engaged in is yet to be fully told in free times, save to say that, what

we now know should outrage the conscience of our constitutional system. Mpshe, was

that conscience of the state which was shocked by the discovery of how a constitutional

process had been completed abused to violate the constitutional rights of an accused.

231. The decision of Mpshe provoked unprecedented commentary, which included the

public response of Mr Trengove SC and Mr Downer SC in addresses that appear to have

been designed to mobilise public outrage at the termination decision. The DA

immediately launched an application to review and set aside Mpshe’s decision to

terminate prosecution – on a number of grounds including that the decision was

 109

irrational given the NPA’s position on the merits of the prosecution. For eight years

after that decision, the DA was engaged in this litigation against the NPA, utilising both

the courts and the public platforms to broadcast the message of the NPA that Mr Zuma

was guilty of the corruption and other serious crimes. Political slogans and campaigns

were launched to place the NPA under the unprecedented political pressure to charge

Mr Zuma. This was a well-coordinated campaign that included the utilisation of the

parliamentary platforms, political rallies, social media and political alliances. It

involved targeting the financial arrangements made with the State to fund Mr Zuma’s

prosecution, where the public was told that Mr Zuma was resisting answering

allegations of corruption and fraud using state funds. Ultimately, the courts set aside the

financial arrangements and ordered the state to begin the process of recovering millions

of rands paid in litigation involving Mr Zuma.

232. The NPA was engaged in litigation against the DA defending its decision to terminate

Mr Zuma prosecution until the SCA. The NDPP, Mr Shaun Abrahams had the power to

terminate the opposition to the DA if there was a basis for it, but he too supported the

NPA’s opposition to the DA on the basis set out in the affidavit of Hofmeyr for the

NPA. The NPA lost that battle in the High Court and appealed to the SCA. After eight

years and following numerous interlocutory applications, the SCA found that the

decision of the NPA not to prosecute Mr Zuma on the basis set out in Hofmeyr’s

affidavit was irrational and unlawful.

233. The brief summary above is incontrovertible evidence that the NPA has lost the

constitutional credibility to use the courts in order to conduct a lawful prosecution

against Mr Zuma. The court must not allow its integrity, independence and impartiality

to be abused by the NPA.

 110

234. As the supreme custodian of the Constitution and in accordance with s 7(2) of the

Constitution, it is constitutionally desirable for the court to uphold the plea and acquit

Mr Zuma under section 106(4). Examined singularly or cumulatively, the conduct of

the NPA must be condemned as abhorrent and inimical to the constitutional

dispensation in which the foundational principles include “human dignity, the

achievement of equality and advancement of human rights and freedoms; the supremacy

of the Constitution and the rule of law and in which law or conduct inconsistent with

the Constitution is invalid and the obligations imposed by it must be fulfilled.”23

235. In Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor

Distributors 2001 (1) SA 545 (CC) the Court held at paras [21]-[24] that: “All law-

making authority must be exercised in accordance with the Constitution. The

Constitution is located in a history which involves a transition from a society based on

division, injustice and exclusion from the democratic process to one which respects the

dignity of all citizens, and includes all in the process of governance. As such, the process

of interpreting the Constitution must recognise the context in which we find ourselves

and the Constitution’s goal of a society based on democratic values, social justice and

fundamental human rights... The constitution requires that judicial officers read

legislation, where possible, in ways which give effect to its fundamental values.

Consistently with this, when the constitutionality of legislation is in issue, they are under

a duty to examine the objects and purport of an Act and to read the provisions of the

legislation, so far as is possible, in conformity with the Constitution ....”

236. Not only is the NPA obsessed with wanting a prosecution at all costs, Downer filed an

affidavit supporting the DA in its political fight against Mr Zuma. In his public lecture

23
S 1and 2 of the Constitution, 1996.
 111

on 15 April 2009, Trengove SC pleaded with the public to speak up, in relation to

Mr Zuma’s prosecution. His plea was ‘the important question is not whether the

decision to terminate the Zuma prosecution was right or wrong but how we respond to

it because that it is time for all of us and particularly lawyers, to stand up and speak

out about abuses of this kind. Lawyers have a particular duty to do so and if we don’t,

we might one day look back at this decision and realize that it was a tipping point

leading to the slippery slope of erosion and ultimate destruction of the rule of law. So,

I do believe that we are at a pivotal junction where we as lawyers should stand and

speak out.”24

237. His conclusion was that; “These issues erode our Constitution, the rule of law and the

fabric of our society. I suggest that it’s time for all of us in civil society to stand up and

speak out about it. There is a particular duty on lawyers to do so. Lawyers understand

better than most why conduct of this kind is so offensive to the Constitution and the rule

of law and why it is so important to maintain the integrity to the Constitution and the

rule of law. So I urge you to stand up and speak out.

238. Trengove SC’s revolutionary speech was about the NPA’s abuse of its prosecutorial

power in Mr Zuma’s prosecution. He was not speaking about the protection of the

Constitution and Mr Zuma’s constitutional rights in circumstances where the NPA had

acted unlawfully as he found. It was not a plea on the NPA to use its constitutional

powers in protecting Mr Zuma’s constitutional rights. For him, the NPA’s decision to

terminate Mr Zuma’s prosecution for the reasons they gave, was a sign that the

Constitution and the rule of law was degrading. It was not about Ngcuka’s continued

manipulation and interference in the constitutional duties of the NPA. It had nothing to

24
NPA 86 : Wim Trengove’s UCT lecture on 15 April 2009
 112

do with McCarthy’s abhorrent disregard of Mr Zuma’s constitutional rights as shown

in the Browse Mole Report or as the Spy Tapes, the deplorable indication that McCarthy

had abrogated the power to decide how and when to prosecute to a former prosecutor

after consultation with a former Minister of Intelligence, the President and the Minister

of Justice and Constitutional Development. This was a public lecture by Senior Counsel

protesting the decision of his client, the NPA, to correct a constitutional abnormality

committed in its name.

THE LAWFULNESS OF THE BROWSE MOLE INVESTIGATION

239. The NPA’s stance on the Browse Mole has never been to condemn its negative impact

on the perception that it triggered on the NPA. Downer’s approach is to maintain that

this unlawful and despicable act of investigating Mr Zuma using clandestine and covert

methods had no impact on the integrity of the investigation itself. The SCA appears to

have unfortunately accepted that evidence. There is nothing showing bad faith in the

conduct of the investigation against Mr Zuma than the Browse Mole report which, as it

turned out, was authorised and in substantial part drafted by the lead prosecutor and

investigator McCarthy. The Browse Mole report was conducted by the NPA under

McCarthy to add to a host of allegations against Mr Zuma – including charges of

treason. It is unclear when the Browse Mole was compiled but what is clear is that it

was released during Pikoli’s time and during the time when he was considering whether

to charge Mr Zuma or not and for what. McCarthy specifically intended to influence

Pikoli to commission a full-scale investigation against Mr Zuma based on the Browse

Mole report.

240. What is disturbing though is that Pikoli does not in his affidavit, as he does in his book,

disclose that when he informed Mbeki about the Browse Mole Report, (in Vietnam and
 113

in the presence of McCarthy and Frank Chikane,). Mbeki informed him that he already

knew about the Browse Mole Report and believed its explosive contents.25 It is unclear

why Pikoli omits to mention this salacious information but the inference should be

drawn that he is less than candid about what he discussed with Mbeki about Zuma.

241. Pikoli’s allegation that the Browse Mole Report did not amount to an abuse of the

NPA’s powers is simply inconsistent with his own conduct after the report was brought

to his attention.26 He instructed McCarthy to cease the investigation and reported the

matter to the relevant authorities including the President. In his own words, he allegedly

kept the Browse Mole investigation and report secret from Downer and his prosecution

team.27 A full-scale investigation into the origins of the Browse Mole investigation was

ordered by the President acting within the National Security Council.28

242. In paragraph 63 of his affidavit, Pikoli says that the Browse Mole Report is not evidence

of executive interference but the contrary. It is unclear on what basis he says so but what

is incontrovertible is that when he reported the matter to Mbeki, according to his book,

Mbeki indicated that he “knew about the report from his former spokesperson Smuts

Ngonyama and from the DG of SASS. He also said that part of what was contained in

the report was true and a large portion of the information was accurate.”29 The question

Pikoli cannot give an accurate answer to is what the impact of the investigation Browse

Mole had on the investigation into Mr Zuma’s prosecution or the title of the NPA to

prosecute lawfully. He clearly indicates that McCarthy conducted this investigation in

order to monitor Mr Zuma’s bail conditions in relation to the corruption charges. The

25
Pikoli; My Second Initiation: The memoirs of Vusi Pikoli, page 201-202; 205-206.
26
Pikoli’s affidavit; para 61.4.2.
27
Pikoli’s affidavit; para 130.5.
28
Pikoli’s affidavit; para 61.5.6.
29
Pikoli: My Second Initiation: The memoirs of Vusi Pikoli; page 201-202.
 114

fact that Pikoli came to know about a completed Browse Mole Report cannot support

the view that this unlawful investigation did not compromise the integrity of the Zuma

prosecution. This Browse Mole Report was leaked to the public and caused a very

damaging narrative to Mr Zuma. It was leaked by the only people who had access to it

– the DSO and more particularly McCarthy. The denial by Pikoli that the Browse Mole

reveals political manipulation is either disingenuous or downright faked naivety

intended to give the impression that the investigation and leaking of such a damaging

document as the Browse Mole by the DSO was a legitimate investigative exercise

intended to assist a legitimate prosecution decision. On Pikoli’s own knowledge, the

Browse Mole report was intended to provide further evidence of corruption. If the

intention of the Browse Mole report was to conduct a legitimate investigation into

criminal activities and not to mire and tarnish Mr Zuma’s reputation and dignity in the

public domain, why has no one from the DSO ever given an answer of the true purpose

of this dangerous document?

243. Pikoli’s rejection of the allegation that the Browse Mole was evidence of the DSO’s

manipulation of the investigative powers to undermine Mr Zuma politically and not a

legitimate investigation intended to detect crime and conduct a lawful prosecution, is

inconsistent with the evidence. McCarthy, the main culprit of this investigation was

engaged in investigating Mr Zuma for corruption. He is the same DSO official who was

involved in manipulating the prosecutorial powers for the purpose of advancing a

political outcome with the ANC elective conference.

244. Pikoli’s contention that he refused to accept reliance on the Browse Mole report to

charge Mr Zuma with serious charges because it contained raw intelligence is a telling

feature of the manipulation of this investigation to achieve political goals. It is clear that
 115

the investigation was illegal and never intended to achieve a lawful prosecution of

corruption charges – mainly because the report did not contain evidence but raw

intelligence.

245. A very damaging feature of Pikoli’s approach is his attempts to sanitise the impact of

the illegal investigation involving the Browse Mole Report. His attitude and assertions

lack credibility. In paragraph 74, Pikoli says that; “None of the DSO investigators

assigned to the investigating team in the current matter and none of the members of the

prosecution team in the present matter were assigned to or involved in the Browse Mole

investigation.” This is patently untrue because in the very next paragraph 75, Pikoli

contends that the leader of the DSO investigation team, McCarthy had the legal

authority to conduct the Browse Mole investigation. This attitude is inconsistent with

his order to McCarthy to stop the investigation and to surrender all the information to

the intelligence sector as the relevant body with the legal right to conduct intelligence.

It is simply untrue that the investigation into corruption allegations by McCarthy were

not conducted by the investigation team when the lead investigator was solely

responsible for that investigation. If Pikoli believed that McCarthy had the authority to

lawfully investigate corruption charges against Mr Zuma by obtaining what he refers to

as raw intelligence, he should not have ordered McCarthy to stop the Browse Mole

investigation and triggered an investigation into the matter.

246. The only purpose of this report was to influence charges against Mr Zuma which would

include the crime of money laundering and treason. The only reason that Pikoli has

given for not acceding to McCarthy’s plans was because he formed the view that the

report contained “raw intelligence” and did not fall within the mandate of the DSO.

Even if it were accepted that the Browse Mole report played no part in the charging
 116

decision (which is not accepted), the damage to Mr Zuma’s constitutional rights as

result of the DSO conducting an irrelevant and unlawful investigation is self-evident. In

essence, what Pikoli is saying is that the Browse Mole was of no use or relevance to

him in deciding whether to charge Mr Zuma, but rogue intelligence resources were

employed to investigate Mr Zuma or the crimes the Mr Zuma is now charged with. Why

then was this Browse Mole report produced and why did McCarthy give it to Pikoli at

a time when Pikoli was considering whether to charge Mr Zuma and for what crimes?

The impression is inescapable that the Browse Mole report was not produced for

legitimate prosecutorial purposes but as part and parcel of a smear campaign intended

to damage Mr Zuma’s political standing by rogue intelligence sources.

247. Pikoli mentions the establishment of a Task Team that investigated the production of

the Browse Mole report.30 What he does not do is to disclose what the Task Team found

about the Browse Mole report. He does this only in his book.31 The findings of the Task

Team were made public. It said:

“There is a considerable degree of clarity with respect to the role players

involved in the leaks, their modus operandi and their intentions. Further, there
is little doubt that the various leaks were deliberately orchestrated and timed.

With respect to the contents of the ‘Browse Mole Report’, it is quite clear that
while some of the events cited actually occurred or are true, woven into them
are provocative, deliberate and baseless allegations. For example, while former
members of Umkhonto we Sizwe (MK) the former military wing of the ANC,
actually met in Shaft 17, there is no truth to the allegations that the said meeting
also conspired to violently and unconstitutionally remove the current
government from office.

At this point, it is appropriate to characterise some of the sources of information

that were used to compile the Browse Report. They are predominately former
members of the present intelligence agencies whose initial background was with
the secret services of the apartheid government – the former Special Branch of

30
Pikoli affidavit; para 61.5.6.
31
Pikoli; My Second Initiation page 203.
 117

the South African Police; Military Intelligence of the South African Defence
Force and the National Intelligence Service. Others are people who had
relations or associations with these entities.

The investigation confirmed that some of the sources of the ‘Browse Report’
form part of wide networks of information peddlers [sic] who operate within the
country as well as in other countries. In this regard they offer services to private
businesses in the country and internationally as well as foreign intelligence
entities.

Within South Africa, there is evidence of concerted efforts to target the ANC
and its Alliance Partners, some organs of State, government officials and
departments. Their activities in the above regard have triggered considerable
tensions, mistrust, anxieties, confusion and deductions about conspiracies
affecting numerous people, both within Government and outside Government.”

248. McCarthy refused to cooperate with the investigation into the Browse Mole and denied

it access to the computer of Ivor Powel, who had been asked to prepare the report.32

Pikoli accepts that McCarthy was responsible for the Browse Mole report. He says that

McCarthy had the legal basis to conduct this investigation. However, in his book, he

laments the fact that McCarthy’s role in compiling the Browse Mole report was not

disclosed to him and he leant of this via a report in the Mail and Guardian of Ivor

Powel.33 Pikoli writes that “If what Powel; is saying is correct, then McCarthy was less

than honest with me. He never disclosed his role in the matter to me and I only got to

know Powell’s involvement once the document had been investigated by the task team.

I knew that there is suspicion because he told me that at one stage Powell’s computer

was hacked. If Powell is to be believed that McCarthy commissioned the report and he

was the combined ‘author’ supplying him with unsourced information, then McCarthy

misled everybody, including me. And because I trusted him, that would be a

disappointment to me. However, it would explain why he was so enraged when I told

him the DSO would not be involved in the matter and I would not declare a full-blown

32
Pikoli; My Second Initiation, page 204.
33
Ibid; page 205.
 118

investigation.”34

249. Pikoli speculated about McCarthy’s motives for the Browse Mole report and said “Who

knows what McCarthy’s agenda was, but read in conjunction with what emerged

around the Zuma spy tapes, if true, perhaps he believed it would have strengthened

Mbeki’s fight against Zuma. However, this project boomeranged and it could well have

hastened the demise of the DSO.”35 Importantly though, Pikoli makes an important

point, “I do believe the Special Browse Mole Report, as suggested by some

commentators, played a major role in tilting the balance of forces between the

Scorpions and its foes in the Zuma camp. It fed into claims of a conspiracy against

Zuma, and here was the DSO meddling in matters that were not within the domain of

making allegations that JZ was conspiring against Mbeki and that there had been

infiltration by foreign intelligence services.”

250. The only complaint that Pikoli is content to concede involves the leaking of the Browse

Mole report. He, however, embarks on an incoherent speculation of who leaked the

report and denies that anyone from the DSO did so. The DSO as the NPA had a

responsibility to ensure that the Browse Mole report did not leak. It is a duty they failed

to uphold, with grave consequences for Mr Zuma’s constitutional rights and the NPA’s

constitutional integrity to prosecute in accordance with the requirements of the law.

251. Pikoli’s book presents a different picture of the damage that the Browse Mole had on

the NPA’s credibility to be trusted as a custodian of the constitutional duty to prosecute

crimes than his affidavit.

THE REFUSAL OF MPSHE AND MCCATHY TO CONSULT WITH THE STATE IN

34
Ibid, page 205.
35
Ibid, page 207.
 119

RELATION TO THIS APPLICATION

252. Downer has, in paragraph 9 of his answering affidavit in the permanent stay application

indicated that “former Acting NDPP Adv Mokotedi Mpshe SC and the former Head of

the DSO Adv Leonard Frank McCarthy have refused to consult with the State.” Downer

does not indicate the reasons given for the position that these two have taken in relation

to this application, but it is not difficult to find. Having filed an affidavit in the DA

litigation justifying his decision to terminate the prosecution, Mpshe would lose

credibility if he were to associate himself with the position taken by Downer in these

proceedings. It is clear that Mpshe stands by what is set out by the NPA in the DA

litigation and cannot now change the NPA’s understanding of its constitutional lapses

in the handling of the prosecution. It must be accepted that Mpshe’s stance in relation

to the NPA’s conduct remains as it was set in the NPA’s affidavit deposed to by

Hofmeyr.

253. The strongest statement against the lawless abuse of the constitutional powers of the

NPA is Mpshe’s own public statement on 6 April 2009.36 The statement has never been

discarded as untrue or not a proper reflection on the NPA’s responsibilities. The court

a quo failed to have regards to this statement. It is worth quoting the relevant portions

of the statement without distorting its true import:

253.1. First, he says that the “painful facts that I am about to put before you have

serious implications for the integrity and independence of the NPA especially

the prosecution of Mr Zuma.”

253.2. The NPA must expose this conduct and deal with the consequences as honestly

36
NPA 84: Statement by the National Director of Public Prosecutions on the matter of S v Zuma & Others – 6
April 2009
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and constructively as possible if it is to have any chance of rebuilding its

credibility and integrity. Our democracy will have to find ways to learn from

this bitter experience and to build a stronger and more independent NPA.

253.3. Over the last three weeks the NPA has been engaged in a difficult and painful

process of dealing with allegations that the case of Mr Zuma has been affected

by manipulation and abuse of process.

253.4. We have come across information about collusion between the former heads of

the Directorate of Special Operations (DSO) and the NPA to manipulate the

prosecutorial process before and after Polokwane elections. We regard these

allegations as extremely serious and set out to investigate them as fully as

possible within the limited time at our disposal.

253.5. There are generally two categories of abuse of process:

253.5.1. a manipulation or misuse of the criminal justice process so as to deprive

the accused of a protection provided by law or take an unfair advantage

of the accused;

253.5.2. 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)

253.6. 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 permitted its processes to be abused and employed in a manner

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which gives rise to unfairness and/or injustice (See Jago v District Court of New

South Wales, [1989] 163 CLR 23 at 30, per Mason CJ)

253.7. Prosecutors have an inescapable duty to secure fair and just treatment of those

who come or are brought before them.

253.8. Fair trial is not the only test of abuse of process. Abuse of process may occur on

its own, either because:

253.8.1. It will not be possible to give the accused a fair trial, or

253.8.2. It will offend one’s sense of justice, integrity and propriety to continue

with the trial of the accused in the particular case. Discontinuance is

not a disciplinary process undertaken in order to express one’s

disapproval of the abuse of process; it if an expression of one’s sense

of justice and propriety. (See Conelly v DPP 1964 AC 1254).

253.9. In the present matter, the conduct consists in the timing of the charging of the

accused. In general, there would nothing wrong in timing the charging of an

accused person, provided that there is a legitimate prosecutorial purpose for it

and the accused is aware, should be aware or has been made aware of such

purpose. For example, the timing may be related to the availability of witnesses,

or the introduction or leading of specific evidence to fit in with the chain of

evidence.

253.10. It follows therefore that, any timing of the charging of an accused which is not

aimed at serving a legitimate purpose is improper, irregular and an abuse of

process. A prosecutor who uses a legal process against an accused person to

accomplish a purpose for which it is not designed, abuses the criminal justice
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system and subjects the accused person to that abuse of process.

253.11. Abuse of process through conduct which perverts the judicial or legal process

in order to accomplish an improper purpose offends against one’s sense of

justice.

253.12. Mr McCarthy used the legal process for a purpose outside and extraneous to the

prosecution itself. Even if the prosecution itself as conducted by the prosecution

team is not tainted, the fact that Mr McCarthy, who was the head of the DSO,

and was in charge of the matter at all times and managed it almost on a daily,

manipulated the legal process for purposes outside and extraneous to the

prosecution itself. It is not so much the prosecution itself that is tainted but the

legal process itself.

253.13. The prosecution team itself had recommended that the prosecution should

continue even if the allegations are true, and that it should be left to a court of

law to decide whether to stop the prosecution.

254. Downer does not say that the NPA has discarded and abandoned its approach as set out

in Hofmeyr’s affidavit. He does not say if it would be competent for him to use the NPA’s

evidence in this trial given the respective positions of the two witnesses. Downer cannot

conduct this trial without calling the NPA to testify on the evidence it gave for

terminating the prosecution against Mr Zuma. The evidence is self-evidently important

in assessing whether Downer had for the title to prosecute plea.

254.1. The NPA’s own assessment of its conduct in prosecuting Mr Zuma; (Mpshe’s

public statement and Hofmeyr’s affidavit)

254.2. Msimang J’s judgment and the adverse findings made against the NPA’s
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conduct when it had decided to prosecute me;

254.3. The binding findings of the Public Protector;

254.4. There has never been an explanation to the court on the purpose and role of the

Browse Mole report by the NPA and the DSO;

254.5. The evidence of the spy tapes;

254.6. The failure of the NPA to take a lawful decision to prosecute.

Downer is incorrect in asserting that the totality of alleged acts of prosecutorial

misconduct did not deprive Mr Zuma of his fair trial rights

255. Mr Downer’s answer is far off the mark in its analysis of the prosecutorial misconduct

claims brought by Mr Zuma in his current section 106 plea. He purports to address each

instance of prosecutorial misconduct in isolation when assessing whether he and his

NPA colleagues deprived Mr Zuma of a fair and impartial trial and violated his

Constitutional rights enshrined in section 35 of the Constitution. In doing so,

Mr Downer assiduously avoids dealing with the shenanigans of his boss at the DSO,

McCarthy and the alleged foreign intelligence agent of the US Central Intelligence

Agency (CIA) who sought to influence the Zuma prosecution in a manner detailed in

the Founding Affidavit. Other than feigned ignorance, Mr Downer makes no full

disclosure to this Court and instead, insists that the said information implicating both

McCarthy and the CIA agent in criminal wrongdoing and a plot to interfere with Zuma’s

fair trial rights are irrelevant. He makes no full disclosure about his own criminal

wrongdoing in regard to conversations had with a journalist who was being groomed

and fed information from Mr Downer’s prosecution files to write negative and

damaging information about Mr Zuma. Mr Downer further provides no credible

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explanation about why ex-prosecutor Ngcuka’s interference in the Zuma prosecution

two years after his resignation from the NPA must be deemed harmless and irrelevant.

Mr Downer has no plans to investigate criminal wrongdoing by both McCarthy and

Ngcuka and he certainly has no interest in investigate their conduct and to make a full

disclosure to the Court and the defendant.

256. Mr Zuma respectfully submits that this Court must address the cumulative impact of all

improper actions by the prosecutors in determining their impact on the fairness of the

trial. In Defreitas v. State, 701 So.2d 593 (4th DCA 1997), the court stated:

“Measuring the prosecuting attorney’s conduct in the instant case by the

aforementioned well settled standard, we are persuaded that appellant has been
denied one of his most precious constitutional rights, the right to a fair criminal
trial, by the cumulative effect of one prosecutorial impropriety after another
one. Furthermore, we are equally persuaded that the cumulative effect of the
numerous acts of prosecutorial misconduct herein were so prejudicial as to
vitiate appellants entire trial. In addition, we are likewise persuaded beyond
question that the cumulative effect of the numerous acts were of such a
character that neither rebuke nor retraction could have or would have
destroyed there sinister influence. The prosecutorial misconduct, taken in its
entirety and viewed in its proper context, is of such a prejudicial magnitude that
it enjoys no safe harbor anywhere in the criminal jurisprudence of this state.
Accordingly, we find fundamental error.” 701 So.2d at 600 (emphasis added).

257. Other Florida cases also hold that the cumulative effect of the prosecutor’s comments

or actions must be viewed in determining whether a defendant was denied a fair trial.

See Brown v. State, 593 So.2d 1210 (Fla. 2nd DCA 1992)(holding that a combination

of improper comments made by the prosecutor in closing argument amounted to

fundamental error); Kelley v. State, 761 So.2d 409 (Fla. 2nd DCA 2000)(holding that

the cumulative effect of the prosecutor’s improper comments and questions deprived

Kelley of a fair trial)(emphasis added); Garron v. State, 528 So.2d 353 (Fla. 1988);

Ryan v. State, 509 So.2d 953 (Fla. 4th DCA 1984)(holding that prosecutorial
 125

misconduct amounts to fundamental error and is excepted from the contemporaneous

objection/motion for mistrial rule, when the prosecutors remarks, when taken as a

whole are of such character that its sinister influence could not be overcome or

retracted)(emphasis added); Freeman v. State , 717 So.2d 105 (Fla. 5th DCA 1998);

Pacifico v. State, 642 So.2d 1178 (Fla. 5th DCA 1994) (holding that the cumulative

effect of prosecutorial misconduct during closing argument amounted to fundamental

error)(emphasis added); Taylor v. State, 640 So.2d 1127 (Fla. 1st DCA 1994);

Carabella v. State, 762 So.2d 542 (Fla. 5th DCA 2000)(holding that the cumulative

effect of improper prosecutorial comments during closing argument was so

inflammatory as to amount to fundamental error)(emphasis added); Pollard v. State ,

444 So.2d 561 (Fla. 2nd DCA 1984)(holding that the court may look to the “cumulative

effect” of non-objected to errors in determining “whether substantial rights have been

affected”) (emphasis added).

258. This Court should assess the cumulative effect of the prosecutorial misconduct in

accordance with the law contained in the cases cited above. Mr Downer’s attempt to

downplay his interaction with journalist Sam Sole is particularly telling. See, eg.,

Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 253 (7th Cir. 1975) (prosecutors

"are a prime source of damaging statements"), cert denied, 427 U.S. 912 (1976).

Contrary to Downer’s assumptions, publishing that someone has committed a crime

may be devastating to that person's reputation. Moreover, the nature of the crime may

also implicate the accused's privacy interests. The presumption of innocence does not

shield the accused from reputational or invasion of privacy damage and acquittal does

not necessarily repair that damage. The prosecutor represents the state, which is

attempting to deprive the accused of life, liberty, or property, and the state is limited in

doing so by the requirements of due process of law. The prosecutor, in short, is subject
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to broader duties,37 and the US Supreme Court has declared that one of those duties is

to ensure that guilt be based on the evidence presented in court and that the defendant

receive a fair trial.38 When the prosecutor speaks publicly about a pending case, he

cannot separate his representational role from his speech, and he thereby involves the

state in the extrajudicial comment. In this context, the US Supreme Court stated in

Stroble v. California, 343 U.S. 181, 201 (1952) (Frankfurter, ., dissenting) the

following:

“To have the prosecutor himself feed the press with evidence that no self-
restrained press ought to publish in anticipation of a trial is to make the State
itself through the prosecutor, who wields its power, a conscious participant in
trial by newspaper, instead of by those methods which centuries of experience
have shown to be indispensable to the fair administration of justice.”Id; see
also State v. Wixon, 30 Wash. App. 63, 69, 631 P.2d 1033, 1038 (1981)
("state's association with trial related publicity is factor to be considered" when
determining whether a defendant has been prejudiced). Indeed, a prosecutor,
because he is a state actor, could be sued for violation of the accused's
constitutional fair trial right as a result of prejudicial extrajudicial comment.
See, eg., Powers v. Coe, 728 F.2d 97, 105 (2d Cir. 1984) (plaintiff entitled to
attempt to show that his constitutional right to fair trial in criminal prosecution
was violated by alleged news leaks from prosecutors).

259. Mr Downer is an officer of the Court because his duty to his client, the State, must be

fused with his duty as a participant in the governmental function of protecting the

judicial process from extraneous influences that impair its fairness. That position must

not be abused to the detriment of the accused. When the prosecutor secures access to

information by virtue of his participation as counsel for the state in a criminal

prosecution, he accepts a powerful responsibility to facilitate a governmental process

37
See Berger v. United States, 295 U.S. 78, 88 (1935); People v. Kelley, 75 Cal. App. 3d 672, 680, 142 Cal.
Rptr. 457, 461 (1977).
38
See Sheppard v. Maxwell, 384 U.S. 333, 350-52 (1966); see also Owens v. State, 613 P.2d 259, 263 (Alaska
1980) (noting "prosecutor's duty as an officer of the court to guarantee all criminal defendants their constitutional
rights to a fair trial").
 127

that has as its primary objective fair procedure and a fair decision. See People v.

Dupree, 88 Misc. 2d 780, 785, 388 N.Y.S.2d 203, 207 (Sup. Ct. 1976) (lawyers "stand

on a different footing" than the press or public because "they acquire information not as

general members of the public, but by virtue of their status and employment"). The

prosecutor's access to sensitive information makes him a good press source for

information about a case and creates an obligation to exercise utmost care in

disseminating information.

260. Contrary to Mr Downer, the trial court has a very critical role to play in monitoring and

restraining prosecutorial conduct which adversely affects the fair trial rights of a

defendant. In Sheppard v. Maxwell, 384 U.S. 333 (1966) the US Supreme Court placed

on the trial judge the burden of ensuring that press coverage does not compromise the

fairness of the proceeding: "The courts must take such steps by rule and regulation that

will protect their processes from prejudicial outside interferences."' Id. at 363. See also

Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 549 (1976) (noting that atmosphere at

Hauptmann trial "could have been controlled by a vigilant trial judge and by other

public officers subject to the control of the court"). The Sheppard Court stated that the

trial court "should have made some effort to control the release of leads, information,

and gossip to the press by...counsel for both sides”, Id. at 159, and recommended the

gagging of trial participants "where there is a reasonable likelihood that prejudicial

news... will prevent a fair trial." Id. at 363. The Court declared that new trials should be

ordered when publicity has prejudiced the fairness of a trial, but it stressed that

"reversals are but palliatives; the cure lies in those remedial measures that will prevent

the prejudice at its inception." Id. at 363.

261. The Court reaffirmed this view in Chandler v. Florida, 449 U.S. 560, 574 (1981).
 128

"Trial courts must be especially vigilant to guard against any impairment of the

defendant's right to a verdict based solely upon the evidence and the relevant law." Id.

262. Mr Downer pays scant attention to the trial judge's "major responsibility" for acting "to

mitigate the effects of pretrial publicity" as articulated in Nebraska Press Ass'n v.

Stuart, 427 U.S. 539, 555 (1976). It is imperative that in evaluating the violation of

Mr zuma’s rights in the context of our Constitution, this Court must be particularly

sensitive to its role as the guardians against the taint of prejudicial publicity which

violates the accused’s rights to dignity, privacy and right to a fair trial. Other courts in

mature democracies take this function very seriously. See, eg., Levine v. United States

Dist. Ct., 764 F.2d 590, 597 (9th Cir. 1985) (upholding restraining order prohibiting

attorneys from communicating with media because publicity posed "a serious and

imminent threat to the administration of justice"), cert denied, 476 U.S. 1158 (1986).

State appellate courts have encouraged trial courts to employ the publicity precautions

set forth in Sheppard. See, eg., Commonwealth v. Pierce, 451 Pa. 190, 200, 303 A.2d

209, 215 (prohibiting policemen and district attorneys from releasing certain

information to news media), cert. denied, 414 U.S. 878 (1973). Mr Downer’s failure to

appreciate the nature of his own violations is particularly disconcerting. In Sheppard

v. Maxwell, 384 U.S. 333 (1966) the US Supreme Court noted that "[t]he prosecution

repeatedly made evidence available to the news media which was never offered in the

trial. Much of the 'evidence' disseminated in this fashion was clearly inadmissible." Id.

at 360.

263. Mr Downer’s failure to deal with the criminal conduct of McCarthy, Ngcuka and his

own unauthorised leak of NPA information to journalists is analogous to a case where

the police actually involved themselves in illegal conduct without lawful authority as
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part of the offence: Ridgeway v The Queen (1995) 184 CLR 19. There the High Court

of Australia stated as follows:

“35. As has been seen, the criminality of the police conduct was grave in that
the maximum penalty for being involved in the illegal importation of a
trafficable quantity of heroin was imprisonment for twenty-five years and a fine
of $100,000. There is nothing before the Court to suggest that the conduct of
the police officers involved has been received with other than acquiescence or
approval at higher levels of the Australian Federal Police. There is no
suggestion that any of those police officers has been charged with a criminal
offence or otherwise reprimanded. Even in the course of argument of the case
in this Court, the Director of Public Prosecutions appeared somewhat reluctant
to concede that the illegal conduct of those involved was unjustifiable. The
receipt of evidence tending to show that the heroin was illegally imported meant
that the prosecution was allowed by the court to derive the curial advantage
which constituted the objective of the criminal conduct of the police.
36. In these circumstances, the above-mentioned factors - i.e. grave and
calculated police criminality; the creation of an actual element of the charged
offence; selective prosecution; absence of any real indication of official
disapproval or retribution; the achievement of the objective of the criminal
conduct if evidence be admitted - combine to make the case an extreme one in
which the considerations favouring rejection of evidence on public policy
grounds are extremely strong. Against those considerations, one must weigh the
legitimate public interest in the conviction and punishment of the appellant for
the criminal offence of which he is guilty. The weight of that consideration in
the present case is reduced by the fact that the appellant's possession of the
heroin at the time he was apprehended constituted any one of a variety of
offences against the law of South Australia of which illegal importation was not
an element and which range from knowing possession of a prohibited substance
or drug of dependence (maximum penalty: $2000 and two years' imprisonment)
(67) to possession of more than the prescribed quantity of a prohibited
substance or drug of dependence for the purpose of sale or supply (maximum
penalty: $500,000 and life imprisonment) (68). That being so, the effect of a
stay of the prosecution of the appellant for offences against the Commonwealth
Act would be that the appellant remained liable to be prosecuted under State
law. In all the circumstances, the considerations of public policy favouring an
exclusion of evidence of the illegal importation of the heroin clearly outweigh
the considerations of public policy favouring the conviction of the appellant of
an offence under s.233B(1) of the Act.”

264. Mr Downer’s failure to acknowledge the criminal conduct of his former NPA

colleagues and his own and his failure to prosecute that crime constitutes the “selective
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prosecution; absence of any real indication of official disapproval or retribution” that

was found in Ridgeway v The Queen and must weigh heavily in the assessment of

whether this case must be dismissed.

265. In Jago v. District Court of New South Wales ((26) [1989] HCA 46; (1989) 168 CLR

23.), at least three of the five members of the Court clearly rejected "the narrower view"

that a court's power to protect itself from an abuse of process in criminal proceedings

"is limited to traditional notions of abuse of process" ((27) ibid, per Mason CJ at p 28.).

Mason CJ considered that a court, "whose function is to dispense justice with

impartiality and fairness both to the parties and to the community which it serves",

possesses the necessary power to prevent its processes being employed in a manner

which gives rise to unfairness ((28) ibid, at p 28.). His Honour quoted, with approval,

the following remarks of Richardson J of the New Zealand Court of Appeal in Moevao

v. Department of Labour ((29) (1980) 1 NZLR 464, at p 481.):

"public interest in the due administration of justice necessarily extends

to ensuring that the Court's processes are used fairly by State and citizen
alike. And the due administration of justice is a continuous process, not
confined to the determination of the particular case. It follows that in
exercising its inherent jurisdiction the Court is protecting its ability to
function as a Court of law in the future as in the case before it. This
leads on to the second aspect of the public interest which is in the
maintenance of public confidence in the administration of justice. It is
contrary to the public interest to allow that confidence to be eroded by
a concern that the Court's processes may lend themselves to oppression
and injustice."

266. Deane J expressed a similar view in his judgment in Jago ((30) (1989) 168 CLR, at p

58.):

"The power of a court to stay proceedings in a case of unreasonable delay is

not confined to the case where the effect of the delay is that any subsequent trial
must necessarily be an unfair one. Circumstances can arise in which such delay
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produces a situation in which any continuation of the proceedings would, of

itself, be so unfairly and unjustifiably oppressive that it would constitute an
abuse of the court's process. Multiple prosecutions arising out of the one set of
events but separated by many years or a renewed charge brought years after
the dismissal of earlier proceedings for want of prosecution could, in a case
where the relevant material had been available to the prosecution from the
outset and depending on the particular facts, provide examples. Where such
circumstances exist, the power of a court to prevent abuse of its process extends
to the making of an order that proceedings be permanently stayed."

267. In her judgment in Jago ((31) ibid, at p 74.), Gaudron J stressed that the power of a court

"to control its own process and proceedings is such that its exercise is not restricted to

defined and closed categories, but may be exercised as and when the administration of

justice demands." Her Honour added the comment ((32) ibid) "that, at least in civil

proceedings, the power to grant a permanent stay should be seen as a power which is

exercisable if the administration of justice so demands, and not one the exercise of

which depends on any nice distinction between notions of unfairness or injustice, on the

one hand, and abuse of process, on the other hand". Subsequently in her judgment ((33)

ibid, at p 77.), her Honour made clear that, subject to some refinements which she

identified, that comment was also appropriate to be adopted in relation to criminal

proceedings.

268. The failure to invoke disciplinary sanctions against Ngcuka, McCarthy and Downer and

also the decision not to prosecute them constitutes acquiescence in and government

condonation of the prosecutorial misconduct alleged. In United States v. Walters the

government charged Walters with insider trading and related offenses. After a three-

week trial in March 2017, Walters was convicted and sentenced to five years’

imprisonment and ordered to pay fines, forfeiture, and restitution totalling more than

$44 million.
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269. In pre-trial motion practice, Walters moved for an evidentiary hearing on the ground

that the government had leaked confidential grand jury information to the press in

violation of Federal Rule of Criminal Procedure 6(e). The government initially opposed

the motion, arguing that Walters could not show that the source of any leaks was a

government agent. Subsequently, the government submitted a letter to the court which

acknowledged, based on the U.S. Attorney’s Office’s own inquiry, that FBI Supervisory

Special Agent David Chaves had leaked information relating to the grand jury

investigation to reporters for The Wall Street Journal and The New York Times.

270. The government’s letter described its investigative steps, including interviews of 14

employees of the U.S. Attorney’s Office and the FBI, as well as a review of thousands

of emails, text messages, and phone records. According to the government, from April

2013 to June 2014 Special Agent Chaves leaked confidential grand jury information to

reporters on multiple occasions, and, as a result of these leaks, several articles appeared

in the Journal and the Times in May and June 2014. The articles, which attributed the

leaked information to “people briefed on the matter,” disclosed the existence of grand

jury subpoenas and revealed information regarding targets of the investigation

(including Walters), specific trades being investigated, evidence being examined, and

theories of liability the government was exploring.

271. The government represented that Special Agent Chaves had been referred to the FBI’s

Office of Professional Responsibility and the DOJ’s Office of the Inspector General to

consider appropriate sanctions. In light of the government’s letter, the district court

presumed that a Rule 6(e) violation had occurred and decided that a previously

scheduled evidentiary hearing was not necessary. After the government’s submission,

Walters moved to dismiss the indictment, arguing that the leaks prejudiced him by
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reviving a dormant investigation and encouraging a co-defendant to cooperate against

him, thereby increasing the likelihood that the grand jury would return an indictment.

Walters further argued that, even absent a showing of prejudice, the indictment should

be dismissed because the government misconduct at issue was “systematic and

pervasive,” and so “outrageous” that it violated his right to due process. Walters pointed

to five examples of white-collar criminal investigations involving Special Agent Chaves

in which defendants had alleged improper leaks to the press. Walters maintained that

“there is no indication that anything was ever done to investigate, much less stop, this

clear pattern of illegal leaks” prior to the “belated investigation” in the Walters case.

272. The district court denied Walters’ motion to dismiss, finding that it was “sheer

speculation” to link the FBI leaks and resulting newspaper articles to Walters’ eventual

indictment. The court concluded that the “proper remedy” was to “investigate and, if

appropriate, prosecute the offender, rather than dismiss the indictment.” The court also

held that an evidentiary hearing was unnecessary because Special Agent Chaves had

indicated that he would invoke his Fifth Amendment rights and refuse to answer any

questions and, in any event, the court had “been provided sufficient evidence ... to make

a ruling.” 910 F.3d at 20-21.

THE SECOND CIRCUIT DECISION

273. On appeal, Walters argued that government misconduct during the grand jury

investigation called for dismissal of the indictment. The Second Circuit rejected the

argument and affirmed the conviction. After the court made clear that it regarded the

leaks as “highly improper” and “likely criminal,” the Second Circuit nevertheless

concluded that dismissal was not justified because Walters had not shown that he was

prejudiced by the leaks—i.e., that the leaks had “substantially influenced the grand
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jury’s decision to indict.” Id. at 23.

274. The court rejected Walters’ argument that Special Agent Chaves’ leaks revived a

dormant investigation, concluding that “the investigation was in fact alive and ongoing

when he leaked the information.” Id. at 24. The court also rejected the claim that leaks

and newspaper articles had influenced a co-defendant’s decision to cooperate. The court

observed that the co-defendant’s decision to cooperate came six months after

publication of the articles and pointed to the co-defendant’s testimony at trial that his

decision stemmed from his counsel’s advice that he was likely to be indicted. Id. Finding

that “Walters received a full and fair trial in which there was overwhelming evidence

to support his conviction,” the court concluded that dismissal of Walters’ indictment

would improperly punish society for the misdeeds of one errant FBI agent. Id.

275. The court similarly rejected Walters’ argument that dismissal was warranted absent a

separate showing of prejudice because the government’s misconduct was “systematic

and pervasive.” The court relied on the holding in Bank of Nova Scotia v. United States,

487 U.S. 250 (1988), in which the Supreme Court offered only two examples of

government misconduct during the grand jury process sufficient to presume prejudice:

“[1] racial discrimination in the selection of grand jurors and [2] the exclusion of

women from the grand jury.” Id. at 25. Although the court described the leaks to the

media as “deeply troubling,” the court concluded that they were not sufficient to warrant

the “drastic remedy” of dismissal. Id. at 26. Disciplinary proceedings and criminal

investigation were sufficient remedies to address the misconduct. Id. at 27.

276. Finally, the court held that Walters had not met the “very heavy” burden of showing that

Special Agent Chaves’ conduct was so “outrageous” as to constitute a due process

violation. To obtain dismissal of an indictment on this ground, the misconduct at issue

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must be “so offensive that it shocks the conscience,” such as when the government

obtains convictions as a result of coercion or violation of a defendant’s bodily integrity.

Id. The court held that the “deeply disturbing and perhaps even criminal” misconduct

at issue was “not commensurate with the conduct in those cases where indictments were

dismissed for coercion or violations of bodily integrity.” Id. at 28.

277. What is of importance in the Walters case is that the alleged misconduct was not that of

a prosecutor in the case but that of an FBI agent. There was no evidence of collusion

between the prosecutors and the FBI agent. Moreover, there was a thorough

investigation of the media leaks and the errant Special Agent Chaves was referred to

considered for disciplinary steps and sanctions. The government represented that

Special Agent Chaves had been referred to the FBI’s Office of Professional

Responsibility and the DOJ’s Office of the Inspector General to consider appropriate

sanctions. Contrast this to Downer’s nonchalant attitude in this case – he has not

condemned McCarthy or Ngcuka’s misconduct and criminal activities, he has not full

disclosed his own dealings with the journalist and he has clearly no intention of

investigating and let alone prosecuting the said criminal activities of his erstwhile

colleagues. In Walters, the Court ruled that disciplinary proceedings and criminal

investigation were sufficient remedies to address the misconduct. Id. at 27. However

here Downer has only indicated that he is solely interested in Zuma prosecution and has

no qualms about pursuing a selective prosecution and tolerating prosecutorial

misconduct. Instead of promising a thorough investigation Downer attempts to sweep

it all under the rug by invoking res judicata and issue estoppel.
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LACK OF INDEPENDENCE AND IMPARTIALITY ON THE PART OF ENTIRE NPA

DUE TO SPYING AND SURVEILLANCE BY NIA

278. The SCA has expressed its disquiet over the fact that government agencies were not

only spying on one another, but that they were specifically eavesdropping on

conversations between NPA prosecutors and third parties. Even more disconcerting is

the fact that the conversations were about the defendant Mr. Zuma in many instances.

Additional evidence has emerged suggesting that the NIA Program, lacking any judicial

supervision was used to intrude on privileged attorney-client communications or NPA

confidential conversations about the defendant.

279. What is further telling about the nature and scope of the unlawful spying on the NPA is

the fact that Downer has admitted in court proceedings that his own conversations with

journalist were spied upon, and said privileged conversations had been intercepted and

recorded.39 Although executive agencies have consistently refused to officially confirm

(or deny) whether they have actually eaves-dropped on lawyers, federal courts have

adverted to the possibility.40

280. Downer has acknowledged, in a formal submission to Courts, that a spying program

was specifically targeting the communications of NPA prosecutors and that calls

involving such persons would not be categorically excluded from interception. Even

where wiretapping is lawfully authorized by a judge, such intrusion must be minimized

to comply with the constitutional mandate - that wiretapping must be conducted with

particularity.41

39
See Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007).
40
See, e.g., id. at 1193.
41
See, United States v. Daly, 535 F.2d 434, 440 (8th Cir. 1976); see also United States v. Scott, 436 U.S. 128,
135-39 (1978) (conflating Fourth Amendment and statutory standards for minimization); Berger v. New York,
 137

281. Where the individual prosecutors targeted were either working on the investigation of

the defendant and preparatory work for his prosecution, the vast majority of their

communications would have been covered by legal privilege (work - product, attorney-

client, or confidential litigation privilege). The only question is whether the assess NIA

or Government’s targeting unconstitutionally undermined prosecutorial independence.

It is submitted that the searches and surveillance at issue violate the Constitution, which

protects the right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures. The searches appear to have been conducted

pursuant to a completely unlawful surveillance or spying program in which prosecutors

involved in prosecuting the defendant were targeted. As Downer admitted and as the

courts found, the spying program was focused on the defendant and those prosecuting

his case.

282. By suppressing the full information regarding the nature and extent of the spying on the

prosecutors the NPA has failed to make disclosure to the extent that due process requires

discovery or disclosure. In the contest between disclosure of state secrets and the

defendant's right to a fair trial, the latter wins out. As the US Supreme Court has long

recognized, "the Government can invoke its evidentiary privileges only at the price of

letting the defendant go free . . . it is unconscionable to allow [the Government] to

undertake prosecution and then invoke its governmental privileges to deprive the

accused of anything which might be material to his defense."42 This principle has

388 U.S. 41, 57-60, 63-64 (1967) (first suggesting such a constitutional requirement to minimize scope of wire
intercepts). See, e.g., United States v. Chavez, 533 F.2d 491, 494 (9th Cir. 1976) (approving minimization limited
to attorney-client and priest-penitent calls); United States v. Turner, 528 F.2d 143, 157 (9th Cir. 1975) (approving
minimization, even in light of broad scope of monitoring, where privileged calls were excluded); Kilgore v.
Mitchell, 623 F.2d 631, 635 (9th Cir. 1980) (noting that even prior to Scott, DOJ Title III policy mandated
minimization of privileged calls); United States v. Rizzo, 491 F.2d 215, 217 (2d Cir. 1974) (minimization
requirement met where officers instructed not to—and did not— monitor, record or spot-check privileged
conversations).
42
United States v. Reynolds, 345 U.S. 1, 12 (1953).
 138

remained unchanged over time. In fact, the courts reiterated that in a criminal

prosecution the defense must have access to information that is "helpful or material" to

the defense, regardless of whether such information is a state secret.43 Being "helpful or

material" does not necessarily rise to the level of the government's obligations under

Brady v. Maryland, 373 U.S. 83(1963), because "information can be helpful without

being favorable in the Brady sense." Thus, the government must disclose any and all

helpful information to the defense, regardless of whether it is classified.44 A hopelessly

compromised prosecution team which also claims to have fallen victim to the unlawful

spying by other government agencies cannot act with the independence, impartiality

and professionalism required to give the defendant a fair trial.

283. The importance of a defense perspective in assessing the materials in this case that are

helpful to Mr. Zuma's defense cannot be overstated. The defense will provide a unique

position to evaluate the plethora of electronic surveillance present in this case and assess

its helpfulness to Mr. Zuma.45 In Alderman, the Supreme Court recognized that "the

need for adversary inquiry is increased by the complexity of the issues presented for

adjudication, and by the consequent inadequacy of ex parte procedures as a means for

their accurate resolution, the displacement of well-informed advocacy necessarily

becomes less justifiable."46 The Court recognized that a district court's ability to

represent the interests of a defendant is limited by the fact that:

[a]n apparently innocent phrase, a chance remark, a reference to what appears

to be a neutral person or event, the identity of a caller or the individual on the

other end of a telephone, or even the manner of speaking or using words may

43
United States v.Aref, 533 F.3d 72, 80 (2d Cir. 2008).
44
See also United States v. Varca, 896F.2d 900, 905 (5th Cir. 1990).
45
Alderman v. United States, 394U.S. 165, 182-84 (1969).
46
Id. at 183-84.
 139

have special significance to one who knows the more intimate facts of an

accused's life.

284. In this case, "the volume of the material to be examined and the complexity and difficulty

of the judgments involved" requires a defense perspective and the protections provided

by the adversarial process.47 The NPA has taken a position that reveals its conflict of

interest and its complete disqualification to prosecute the case at hand. Downer has

admitted in other courts that he was a victim of unlawful surveillance which acting as a

lead prosecutor in the extant case. But he has for the purpose of winning at all costs

tried to deny or minimize the seriousness of the spying activities on the prosecution’s

office and has made no efforts to provide the defendant with full material disclosures of

the spying which may have compromised the neutrality, independence and integrity of

the prosecutorial process.

285. In order to conduct a search or surveillance in an ordinary criminal investigation, the

government must obtain the prior authorization of a neutral, disinterested judicial officer

who has the authority to determine whether the requirements of the law have been

satisfied.48

286. In a bizarre twist, the NPA’ theory, that prosecutors may treat unlawful spying by the

executive branch officials on the investigation and prosecution of Mr. Zuma’s case

without any consequences – they believe they can treat the wiretap statutes as optional

and freely employ the NIA to evade the statute, a statute enacted specifically to rein in

47
Id. at 182 n.14.
48
see Johnson v. United States, 333 U.S. 10, 13-14 (1948) ("The point of the Fourth Amendment, which often is
not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral
and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of
ferreting out crime.").
 140

and create a judicial check for executive-branch abuses of surveillance authority.

287. The defendant seeks to bring to the attention of this Court a recent judgment from the

Arizona Supreme Court,49 where the Arizona Supreme Court has taken strong action

against prosecutorial misconduct. The court affirmed the removal of the entire Tucson

office of the Arizona Attorney General from the state’s prosecution of Darren Goldin,

due to shocking prosecutorial misconduct at his original 2010 trial. All six active

justices agreed that the actual misconduct of former Assistant Attorney General Richard

Wintory during Goldin’s capital trial created “an appearance of impropriety” sufficient

to mandate the disqualification of every lawyer in the Tucson branch of Arizona

Attorney General Mark Brnovich’s office. Ultimately, the justices agreed with the trial

court’s initial finding of misconduct, writing, “As the trial court concluded, ‘I’m sure

there’s a more eloquent way of putting this, but it just looks bad.’”(own emphasis added)

288. The misconduct was outrageous. In preparation for a trial with Goldin’s life on the line,

Wintory participated in secret, inappropriate phone calls with the lead court-appointed

mitigation expert, a professional who was integral to the defense and was ethically

obligated to work exclusively on behalf of Goldin’s legal representation. This is so

offensive, not least because the expert was tasked with identifying and locating Goldin’s

biological mother, in order to help his attorneys, develop mitigating factors that could

potentially move the jury to spare his life. Presumably, Wintory did so to obtain

privileged information about the case. Wintory waited a week after his first improper

conversation with the expert to disclose the contact, and he did so by submitting a

dishonest affidavit, in which he stated that he and the mitigation specialist only spoke

once. However, records exist for at least seven calls. Additionally, Wintory falsely

49
https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2021/CR190315PR.pdf
 141

denied the presence on the calls of any additional staff members from the Tucson AG’s

office, but later admitted in a subsequent affidavit that he had forgotten that his paralegal

was also present during one of these calls.

289. First, the court explicitly acknowledged that the true scope of misconduct in Goldin’s

case is not known, writing: ‘As the court of appeals correctly noted, the appearance of

impropriety here emanated from actual misconduct. Id. The misconduct was so

significant that it resulted in severe discipline. However, it was impossible to determine

the substance of the improper conversations between Wintory and the confidential

intermediary, or the extent to which the information was disclosed to others in the office

or to which it informed prosecution strategy. Thus, the appearance of impropriety was

grounded not in a mere perception of wrongdoing but an actual finding of misconduct

with no ability to determine the scope of its impact.

290. Secondly, the court admitted that the need to disqualify an entire office of prosecutors

is not an anomaly or outlier situation, but is something that will come up again, stating:

We granted review because the question of vicarious disqualification of a prosecutor’s

office is of statewide importance and likely to recur.

291. Just like in the Zuma case, the Wintory’s reprehensible misconduct was vigorously

defended by his former office, the highest legal office of the state. But the higher court

recognized the full implications of prosecutorial misconduct. The court’s decision

affirms that prosecutorial misconduct is not only about an individual actor or ‘bad apple’

who may have committed the misconduct, but that it exists in a tainted system which

incentives and/or allows it. The systemic deficit of integrity that characterizes some

prosecution offices is much more entrenched, self-perpetuating, and difficult to correct

than the “rogue” actor. Dismissing an entire office, when merited, sends a clear and
 142

helpful message on this issue.

292. Every criminal defendant in our country has a constitutional right to a prosecutor who

is unbiased, neutral and/or disinterested. In Smyth v Ushewokunze & another 1998 (2)

BCLR 170 (ZS) where the court condemned a prosecutor who had “involved himself in

a personal crusade” against the accused and lacked the objectivity, detachment and

impartiality necessary to ensure that the State's case was presented fairly. The Court

assessed the evidence and concluded that it revealed that the prosecutor's behaviour had

fallen far short of the customary standards of fairness and detachment demanded of a

prosecutor, which required him to conduct himself with due regard to the basic rights

and dignity of the accused. Most important, the court stated that the accused’s right to

“a fair hearing by an independent and impartial court” embodied a constitutional value

of extreme importance and had to be interpreted so as to include within its ambit not

only the impartiality of the decision-making body but also the absolute impartiality of

the prosecutor. 'Impartial court' had to be interpreted so as to embrace a requirement

that the prosecution exhibit fairness and impartiality in its treatment of a person charged

with a criminal offence. Accordingly, the prosecutor who displayed vindictive and

biased attitude to the accused during investigation and remand proceedings was

interdicted from taking any further part in preparation or presentation at trial of charges

against accused. Other branches of the government must also avoid even the appearance

of partiality or conflict of interest on the part of the prosecutor.50 Viewed with this prism,

the president Mbeki should have thought long and hard before firing Zuma and

50
Young v. United States ex rel. Vuitton Et. Fils, S.A.,48 U.S. 787, 810 (1987); Marshall v. Jerrico, Inc, 446 U.S.
238, 249-50 (1980). Several commentators have suggested that prosecutors must be “neutral” rather than simply
“disinterested.” See: Bruse A Green & Fred C. Zacharias, Prosecutorial Neutrality, 2004 WIS.L.REV.837-904
(Winter 2004)(calling for creation of “well-established normative standards governing prosecutors‟ discretionary
decision making”); H. Richard Uviller, The Neutral Prosecutor: The Obligation of Dispassion in a Passionate
Pursuit,” 68 Fordham L. Rev. 1695, 1718 (2000)(advocating the creation of bifurcated prosecution process,
requiring that the lawyers who take in a case and negotiate a plea be screened from those who actually try cases).
 143

immediately giving Zuma’s job to the prosecutor’s wife.51

DISMISSAL ON BASIS OF OTHER MISCONDUCT

293. In R v Grant [2005] EWCA Crim 1089 the English Court of Appeal was concerned

with a murder case where police had eavesdropped on conferences between solicitor

and client following the client’s arrest. The breach of privilege yielded nothing of use

and did not compromise the fairness of the trial. The Court of Appeal quashed the

conviction and stated at 52: “Acts done by police, in the course of an investigation which

leads in due course to the institution of criminal proceedings, with a view to

eavesdropping upon communications of suspected persons which are subject to legal

professional privilege are categorically unlawful and at the very least capable of

infecting the proceedings as abusive of the court’s process. So much seems to us to be

plain and obvious and no authority is needed to make it good. The only question that

requires examination is whether such proceedings ought to be characterized as an

abuse of the process, and the prosecution stopped, if the defendant or defendants have

suffered no prejudice in consequence of the relevant unlawful acts”.

294. The answer to the question posed was a categorical yes, the court holding that the breach

of privilege was (at 54): “… so great an affront to the integrity of the justice system,

and therefore the rule of law, that the associated prosecution is rendered abusive and

ought not be countenanced by the court”.

51
Wright, 732 F.2d at 1056 n.8 (finding bias where prosecutor’s wife had had numerous political and legal
confrontations with defendant, because a prosecutor is not disinterested “if he has, or is under the influence of
others who have, an axe to grind against the defendant”); United States v. Terry, 806 F.Supp. 490, 497 (S.D.N.Y.
1992), aff‟d, 17 F.3d 575 (2d Cir.), cert. denied, 513 U.S. 946 (1994)
 144

ILLEGAL RECORDING OF ACCUSED BY PRIVATE PERSONS

295. In State v Pal1 [2008] FJCA 117; [2009] 1 LRC 164 (8 February 2008) the Fiji Court

of Appeal upheld a permanent stay ordered by the trial judge on the basis that private

persons had secretly recorded the accused engaging in conduct said to be incriminatory.

This recording was said to have been in breach of his constitutional rights. The

prosecution sought to adduce the videos to prove the offences. The trial judge rejected

a claim of entrapment, but found the recordings had been done in “bad faith”. Rather

than excluding the videos from evidence the trial judge stayed the prosecution. Upon a

Crown appeal the court (Pathik, Mataitoga and Scutt JJA) held:

“We consider that what occurred in this case was unconscionable and a gross
abuse of process. The state should not be a party to such an abuse, and nor
should the courts allow such conduct to found a prosecution or be a part of the
criminal justice system”.

296. For all the reason above, the plea should succeed and the acquittal granted.

Alternatively, the trial court must, under section 108 of the CPA, direct that the plea be

referred to trial by hearing oral evidence.

D MPOFU SC
T MASUKU SC
N BUTHELEZI
N XULU
Counsel for Mr Zuma
Chambers
 145

LIST OF AUTHORITIES

Publications

1. Gardiner and Lansdown, "South African Criminal Law and Procedure", 6th Edition (1)

(1957).

2. Kirschheimer, “Political Justice: The Use of Legal Procedure for Political Ends” (2015).

3. Swift and Harcourt, "Swift's Law of Criminal Procedure", 2nd Edition (1971).

4. Pikoli, “My Second Initiation: The memoirs of Vusi Pikoli” (2013).

Domestic case law

1. Delport and Others v S [2014] ZASCA 197; [2015] 1 All SA 286 (SCA); 2015 (1) SACR

620 (SCA).

2. Hudson v Hudson & Another 1927 AD 259.

3. Independent Institute of Education (Pty) Ltd v KwaZulu-Natal Law Society and Others

2020 (2) SA 325 (CC).

4. Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor

Distributors 2001 (1) SA 545 (CC).

5. Makate v Vodacom Ltd 2016 (4) SA 121 (CC)

6. National Director of Public Prosecution v Zuma (Mbeki) and another intervening) [2009]

2 All SA 243 (SCA) (‘NDPP v Zuma’).

7. Ndluli v Wilken NO [1990] ZASCA 107; 1991 (1) SA 297 (AD); [1991] 1 All SA 256

(A) (‘Ndluli v Wilken’).

8. Porritt & another v The NDPP & others [2014] ZASCA 168 2015 (1) SACR 533 (SCA)

(‘Porritt v NDPP’).

9. Philips v Botha 1995 (2) SACR 228 (W) (‘Philips v Botha I’).
 146

1 0 . Phillips v Botha [1998] JOL 4278 (A); [1999] 1 All SA 524 (A); 1999 (1) SACR 1 (SCA)

(‘Phillips v Botha II’).

1 1 . Singh v Minister of Justice and Constitutional Development and Another [2006]

ZAKZHC 20 (‘Singh v Minister of Justice’).

1 2 . South African Broadcasting Corporation Ltd v Downer SC NO and others [2007] 1 All

SA 384 (SCA) (unreported) (‘SABC v Downer SC’).

1 3 . South African Broadcasting Corporation Limited v National Director of Public

Prosecutions and Others [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2) BCLR 167

(CC); [2006] JOL 18339.

1 4 . Smyth and Others v Investec Bank Ltd and Another 2018 (1) SA 494 (SCA).

1 5 . Solomon v Magistrate, Pretoria & Another 1950 (3) SA 603 (W).

1 6 . S v Moussa [2021] ZAGPJHC 61.

1 7 . S v Shaik and Others (Civil Appeal) (248/06) [2006] ZASCA 106; [2006] SCA 134(2)

(RSA); [2007] 2 All SA 150 (SCA) (6 November 2006).

1 8 . S v Shaik and Others (Criminal Appeal) (62/06) [2006] ZASCA 105; [2007] 2 All SA 9

(SCA); 2007 (1) SA 240 (SCA) (6 November 2006).

1 9 . S v Shaik and Others (CCT 86/07) [2008] ZACC 7; 2008 (5) SA 354 (CC); 2008 (2)

SACR 165 (CC); 2008 (8) BCLR 834 (CC) (29 May 2008).

2 0 . S v Shaik and Others (CCT 86/06) [2007] ZACC 19; 2008 (2) SA 208 (CC); 2007 (12)

BCLR 1360 (CC); 2008 (1) SACR 1 (CC) (2 October 2007).

2 1 . S v Zuma [2006] JOL 18331 (N) (unreported).

2 2 . Turnbull-Jackson v Hibiscus Coast Municipality and Others 2014 (6) 592 (CC); MEC,

Health and Social Development, Gauteng v DZ [2017] ZACC 37.

2 3 . Zuma v Democratic Alliance and Others: Acting National Director of Public

Prosecutions and Another v Democratic Alliance and Another (2017) ZASCA 146;
 147

[2017] 4 All SA 726 (SCA); 2018 (1) SA 200 (SCA); 2018 (1) SACR 123 (SCA) (“Zuma

v DA” or the “DA review application”).

2 4 . Zuma v National Director of Public Prosecutions [2009] 1 All SA 54 (N) (‘Zuma v

NDPP’).

Foreign case law

1. Amato v. The Queen [1982] 2 SCR 418 in the Supreme Court of Canada.

2. Bank of Nova Scotia v. United States 487 U.S. 250 (1988).

3. Barker v.Wingo, (1972) 407 U.S. in the United States Court of Appeals for the Sixth

Circuit.

4. Berger v. United States, 295 U.S. 78, 88 (1935).

5. Brown v. State, 593 So.2d 1210 (Fla. 2nd DCA 1992).

6. Carabella v. State, 762 So.2d 542 (Fla. 5th DCA 2000).

7. Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 253 (7th Cir. 1975).

8. Chandler v. Florida, 449 U.S. 560, 574 (1981).

9. Commonwealth v. Pierce, 451 Pa. 190, 200, 303 A.2d 209, 215.

1 0 . Connelly v. DPP [1964] A.C. 1254 in the United Kingdom House of Lords.

1 1 . DeFreitas v. State, 701 So. 2d 593 (Fla. Dist. Ct. App. 1997) in the District Court of

Appeal of Florida.

1 2 . In re Smith, 656 F.2d 1101 (5th Cir. 1981), United States District Court for the Northern

District of Texas

1 3 . Jago v The District of New South Wales and others, (1989) 168 CLR 23 in the High

Court of Australia.

1 4 . Kelley v. State, 761 So.2d 409 (Fla. 2nd DCA 2000).

1 5 . Levine v. United States Dist. Ct., 764 F.2d 590, 597 (9th Cir. 1985).
 148

1 6 . Mills v. Cooper [1967] 2 Q.B. 459.

1 7 . Moevao v. Department of Labour (29) (1980) 1 NZLR 464.

1 8 . Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 555 (1976).

1 9 . Owens v. State, 613 P.2d 259, 263 (Alaska 1980).

2 0 . Pacifico v. State, 642 So.2d 1178 (Fla. 5th DCA 1994).

2 1 . People v. Dupree, 88 Misc. 2d 780, 785, 388 N.Y.S.2d 203, 207 (Sup. Ct. 1976).

2 2 . People v. Kelley, 75 Cal. App. 3d 672, 680, 142 Cal. Rptr. 457, 461 (1977).

2 3 . Pollard v. State , 444 So.2d 561 (Fla. 2nd DCA 1984).

2 4 . R v Askov (1990) 79 CR (3d) 273 in the Supreme Court of Canada.

2 5 . R. v. Beckford [1996] 1 Cr App R 94 in the England and Wales Criminal Division.

2 6 . R v Derby Crown Court, Ex Parte Brooks [1985] 80 Cr. App. R 164 in the United

Kingdom House of Lords.

2 7 . R. v. Morin [1992] 1 SCR 771 in the Supreme Court of Canada.

2 8 . Ridgeway v The Queen (1995) 184 CLR 19.

2 9 . Ryan v. State, 509 So.2d 953 (Fla. 4th DCA 1984).

3 0 . Sheppard v. Maxwell, 384 U.S. 333, 350-52 (1966).

3 1 . State v. Wixon, 30 Wash. App. 63, 69, 631 P.2d 1033, 1038 (1981).

3 2 . Stroble v. California, 343 U.S. 181, 201 (1952).

3 3 . United States v. Walters, No. 16-cr-338 (PKC), ECF No. 68 at 36-42, 54-55 (S.D.N.Y.

Jan. 13, 2017).