The Gauteng North High Court this week gave judgement in the application of the Democratic Alliance (DA) to have the National Prosecuting Authority (NPA) provide the record of the proceedings pertaining to the decision not to prosecute Mr Zuma. The record was needed for the application to have the decision not to prosecute Mr Zuma reviewed and set aside. The application of the DA was dismissed with costs. The Court found that the DA did not have legal standing (locus standi) in that it did not comply with the requirement in our law that to have standing in a matter one must have a direct interest therein.
The Court in this regard referred to the Common Law, the Constitution and the Promotion of Administrative Justice Act. The effect of the judgement is that the application by the DA for the review and setting aside of the decision cannot proceed. The application of two other parties to intervene was dismissed also on the basis that they do not have standing, because of a lack of direct interest.
This judgement clearly illustrates our view that the matter should not have been dealt with before the courts in the first instance as the then Acting National Director of Public Prosecutions was merely exercising his discretionary powers in taking such a decision. Our strong view has been that South Africa does not, in principle follow a system of compulsory prosecution. The NPA has a discretion whether or not to institute and conduct criminal proceedings or whether to discontinue them. Prosecutors are not compelled to institute criminal proceedings in respect of all matters brought to their attention irrespective of the merits or to continue criminal proceedings to finality. We hope that this judgement will be a clarion call to all to respect the discretionary powers vested on the NPA by both the Constitution and the NPA Act.
