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NPA warns of breaching separation of powers

The Gauteng High Court (Pretoria) order in the ‘spy tapes’ case had far-reaching implications for prosecutorial decision-making and for the rights of accused persons, lawyers for the NPA and President Jacob Zuma argued on Friday in their application to appeal the judgment. The case – brought by the DA – challenged the rationality in law of the 2009 decision to drop corruption charges against Zuma. When former acting prosecutions head Mokotedi Mpshe announced the decision, he said recordings of phone conversations between Scorpions head Leonard McCarthy and former prosecutions head Bulelani Ngcuka, showed that the timing of the service of the indictment on Zuma was manipulated to negatively affect Zuma’s political prospects at the ANC’s elective conference in Polokwane, says a BDlive report by Franny Rabkin. In April, a full Bench found that the decision was not rational, saying that the doctrine of abuse of process was a matter for a court to determine, and that there was no rational connection between the need to protect the integrity of the NPA and the decision to discontinue the prosecution. On Friday, the NPA’s counsel, Hilton Epstein SC, said the judgment had constrained the NPA’s power – given to it by the Constitution and the NPA Act – to decide whether to prosecute or not. It was a breach of the separation of powers to ascribe this discretionary power the courts, he said. Zuma’s counsel, Kemp J Kemp SC, added that the judgment affected the rights of accused people to make representations to the NPA so that it could reconsider its decision, as it constrained the NPA’s ability to make decisions based on the representations.

Full BDlive report

Epstein argued the court’s finding meant whenever a prosecutor wanted to stop the prosecution‚ a prosecutor should apply to court. If the prosecution believed there had been an abuse of process serious enough to warrant a discontinuance of a prosecution, it would be ‘absurd’, acting in bad faith and a waste of resources for the NPA to wait until the case came to trial before it could ask the court to discontinue it. This, notes a BDlive report, was denied by Deputy Judge President Aubrey Ledwaba‚ who said this was not what the court meant.Judge Billy Mothle said the court was not setting a precedent that prosecutors must apply to the court to stop the prosecution. All three judges suggested that their judgment was based on the particular facts of this case and did not establish a general principle that all abuse of process decisions to drop charges had to be taken by a court. They reserved judgment.

Full BDlive report

The DA, however, insisted Mpshe’s decision was irrational, notes a TimesLIVE report. Advocate David Borgström‚ for the DA‚ said although Mpshe was satisfied that there was a strong case against Zuma‚ he placed more weight on McCarthy’s manipulation of the process of when to serve the indictment on Zuma. He added that Mpshe had not weighed up the competing interests. ‘On the one plate of the scale was the fact there was compelling evidence against (Zuma). On the other hand‚ he looked at abuse (by McCarthy). There was no attempt by Mpshe to say how these two weighed against each other.’ Borgström said Mpshe did not give McCarthy an opportunity to respond to the allegations of manipulation. ‘This is a procedural irregularity. On this basis alone‚ the order that was granted by this court (in April 2016) was justified‚’ Borgström said. He said nowhere in the transcripts was an instruction given to McCarthy as to the timing of when to serve the indictment. ‘What the transcripts show is a conversation of two friends. This notion of political instruction is simply not there.’ He also said if McCarthy’s motives were so bad‚ why was nothing done about it.

Full TimesLIVE report

Interestingly, the claim by many critics that the NPA and Zuma have joined forces to delay his prosecution as long as possible surfaced during the hearing. According to a News24 report, Ledwaba asked why the two legal teams had not approached the Constitutional Court, after repeatedly stating it was a matter of constitutional importance. Kemp J Kemp, for Zuma, said they respected judicial structures. And Epstein said the Constitutional Court did not like appeals being brought directly to it, and appreciated the benefit of having the opinion of the SCA.

article supplied courtesy of LegalBrief