the matter S v Zuma and others
6 April 2009
Introduction
I stand before you today to announce the most difficult decision I ever made
in my life. It was not an easy task at all. I had the privilege of having
listened to inputs and comments of very eminent jurists of the National
Prosecuting Authority (NPA) and I am thankful to them for their candid and
frank arguments.
It was then and it still is difficult for me to comprehend that which is set
out below could have happened. The painful facts that I am about to put before
you have serious implications for the integrity and independence of the NPA
especially regarding the prosecution of Mr Zuma.
We believe that it is vital that the NPA must expose this conduct and deal
with the consequences as honestly 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.
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. We have come across information
about collusion between the former heads of the Directorate of Special
Operations (DSO) and NPA to manipulate the prosecutorial process before and
after Polokwane elections. We regarded these allegations as extremely serious
and set out to investigate them as fully as possible within the limited time at
our disposal.
I will return to the result of our investigation and its impact on the case in
due course.
Speculation in the media
As will become clear from the discussion below, this is a decision of great
importance to the NPA and it was vital that the process be done thoroughly and
properly, and that any decision is based on proper investigation of the
allegations and proper discussion of the issues.
Although I can understand that the matter at hand is an issue which is of
great public importance, I wish to say that much of the speculation verged on
the irresponsible and has had the effect of placing the NPA under a great deal
of pressure. Much of the speculation was based on information that it is
patently wrong, and it continued to be reported even when explicitly denied by
the NPA. It is also worrying that the views of so-called âsourcesâ are given
great prominence even when it is clear that they do not have access to the
correct information.
For the record, I wish to state that the NPA was not presented with any
further evidence or information about the arms deal or the involvement of
others in it, nor was the NPA deeply divided about this issue. As with any
other serious issue, there was serious and considered debate and discussion,
but I can say without hesitation that no one was of the view that this is an
easy and clear cut decision to make and all of us had respect for the views of
others.
All members of the senior management and the prosecuting team participated
in this discussion, and ultimately I take full responsibility for the decision
I make. It is unfair, wrong and downright mischievous to portray these
discussions as acrimonious debates between particular individuals as has been
done in a number of publications.
Background
We received representations from the legal representatives in the matter of
the State versus Zuma. The representations included written as well as oral
representations and in addition we were given access to certain
recordings.
In reaction to the said representations, we also received representations and
petitions from a wide range of interested parties and individuals. I have also
consulted the Investigating Director of the Directorate of Special
Operations.
All representations were carefully considered
The representations submitted by the legal representatives pertained to the
following issues:
* The substantive merits
* The fair trial defences
* The practical implications and considerations of continued prosecution.
* The policy aspects militating against prosecution.
I need to state upfront that we could not find anything with regard to the
first three grounds that militate against a continuation of the prosecution,
and I therefore do not intend to deal in depth with those three grounds. I will
focus on the fourth ground which I consider to be the most pertinent for
purposes of my decision. I will now deal with the policy aspects militating
against the prosecution.
Possible abuse of process
In the course of the representations, the defence made certain very serious
allegations about alleged manipulation of the NPA and indicated that these were
substantiated by recordings of certain telephone conversations which it
intended handing into court during the intended application for a permanent
stay of prosecution.
The NPA decided that it would listen to these recordings because it felt
that the allegations were serious enough to impact on the NPAâs decision if
they were true. It felt it should do so despite the fact that it was not clear
whether the recordings had been intercepted legally or were legally in the
possession of the defence.
I appointed a senior team consisting of Messrs Mzinyathi and Hofmeyr to
listen to, verify and investigate the contents of the recordings. Although the
recordings sounded authentic, the NPA decided to approach agencies that have a
legal mandate to intercept telephone calls with a view to ascertaining whether
they may have legally obtained recordings of the same conversations.
The National Intelligence Agency (NIA) confirmed to the NPA that it indeed
had legally obtained recordings of many of the same conversations which were
obtained during the course of its investigation into the circumstances
surrounding the production and leaking of the Browse Mole report. NIA indicated
that it was able to share these legally with the NPA for the purposes of the
investigation and for reaching a decision in this matter. Thus the NPA was able
to make transcripts of the relevant portions of the recordings for this purpose
and NIA has declassified these transcripts as they are not directly relevant to
its own investigation.
The NPA is thus confident that its decision is based on information that was
intercepted legally and obtained legally by the NPA. The transcripts contain
material that was of vital importance in the NPA reaching its decision, and the
NPA has decided to make its contents public as it believes it is in the public
interest to do so. The transcripts have been declassified, the NPA believes
that there is no legal impediment to its doing so.
In regard to the allegations of abuse, we have also been in contact with
Messrs Bulelani Ngcuka and Leonard McCarthy. A meeting took place between Mr
Ngcuka and members of the prosecuting team. Mr Ngucka responded to a set of
questions. We communicated with Mr McCarthy by e-mail but he preferred not to
respond to the questions.
The NPA has decided to request the Inspector-General of Intelligence
formally to investigate any possible illegality surrounding the recordings that
were presented to it.
Legal considerations
The Constitution of the Republic of South Africa is the supreme law and any
law or conduct inconsistent with it is invalid, and the obligations imposed by
it must be fulfilled. (Section 2) Section 179(4) of the Constitution requires
of the prosecuting authority to exercise its functions without fear favour or
prejudice. The extent of this obligation was described as follows in the State
versus Yengeni 2006 (1) SACR 405 in paragraphs 51 to 53.
âEvery member of the authority is obliged to undertake an oath or
affirmation prior to the commencement of their service to uphold this
provision. The Constitution guarantees the professional independence of the
National Director of Public Prosecutions and every 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.
The untrammelled exercise of their powers in the spirit of professional
independence is vital to the functioning of the legal system. The independence
of the Judiciary is directly related to, and depends upon, the independence of
the legal professions and of the National Director of Public Prosecutions.
Undermining the freedom from outside influence would lead the entire legal
process, including the functioning of the Judiciary, being held hostage to
those interests that might be threatened by a fearless, committed and
independent search for the truth.â
In applying the above principles the court in S v Yengeni (supra) found as
follows with regard to the requirement of fearless and unfettered exercise of
the powers of the office of the National Director of Public Prosecutions
âThe independence of the office of that he held, and the fearless and
unfettered exercise of the extensive powers that this office confers, are
incompatible with any hint or suggestion that he might have lent an ear to
politicians who might wish to advance the best interest of a crony rather than
the search for the truth and the proper functioning of the criminal and penal
process.â (p428 g-h)
A submission made in Chaskalson et al, Constitutional Law of South Africa, of a
broad and creative interpretation of âimpartialityâ as required from the
judiciary to include a member of the prosecuting authority was endorsed in
Smyth v Ushewokunze and Another 1998 (2) BCLR 170 (ZS)
âSection 18(2) embodies a constitutional value of supreme importance. It
must be interpreted therefore in a broad and creative manner so as to include
within its scope and ambit not only the impartiality of the decision making
body but the absolute impartiality of the prosecutor himself whose function, as
an officer of the court, forms an indispensable part of the judicial process.
His conduct must of necessity reflect on the impartiality or otherwise of the
courtâ (p178 par B)
The court furthermore in outlining what society expects of a prosecutor
stated as follows:
âA prosecutor must dedicate himself to the achievement of justice. He must
pursue that aim impartially. Since he represents the State, the community at
large and the interest of justice in general, the task of the prosecutor is
more comprehensive and demanding than that of the defending practitioner. Like
Caesarâs wife, the prosecutor must be above any trace of suspicion.â (p174
G-H)
There are generally two categories of abuse of process:
* A manipulation or misuse of the criminal justice process so as to deprive the
accused of a protection provided by law or to take an unfair advantage over the
accused;
* 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)
The issue can be formulated as follows:
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 permit its processes to be abused and employed
in a manner which gives rise to unfairness and/or injustice. (See Jago v
District Court of New South Wales, [1989] 168 CLR 23 at 30, per Mason CJ)
Prosecutors have an inescapable duty to secure fair and just treatment of those
who come or are brought before them.
Fair trial is not the only test of abuse of process. Abuse of process may
occur on its own, either because:
* it will not be possible to give the accused a fair trial, or
* it will offend oneâs sense of justice, integrity and propriety to continue
with the trial of the accused in the particular case. Discontinuation is not a
disciplinary process undertaken in order to express oneâs disapproval of abuse
of process; it is an expression of oneâs sense of justice and propriety, (See
Conelly v DPP 1964 AC 1254)
The framework within which abuse of process has to be considered was set out
in R v Latif 1996 1 WLR 104. There will always be a tension between two extreme
positions in that, if a trial is discontinued, the public perception would be
that the criminal justice system condones improper conduct and malpractice by
law enforcement agencies and if a trial is discontinued the criminal justice
system will incur the reproach that it is failing to protect the public from
serious crime.
An assessment of abuse of process involves a balancing exercise. In Latif it
was clear that a fair trial was possible. The overriding question, however, was
whether the trial ought to be discontinued âon broader considerations of the
integrity of the criminal justice system.â According to Lord Steyn, criminal
proceedings may be discontinued not only where there will be no fair trial but
also where it would be contrary to the public interest in the integrity of the
criminal justice system that a trial should take place. An infinite variety of
cases could arise.
General guidance as to how the discretion to discontinue should be exercised
in particular circumstances will not be useful. But it is possible to balance
the public interest in ensuring that those charged with serious crime should be
tried against a compelling public interest which expresses a distaste and
outrage for abuse of process by law enforcers who are expected to behave with
absolute integrity, impartiality, fairness and justice. Such an approach
conveys the view that a fair and just criminal system should not accept the
attitude that the end justifies the means.
The approach in Latif has been followed consistently. Thus âNo single
formulation will readily cover all cases, but there must be something so
gravely wrong as to make it unconscionable that a trial should go forward,â (R
v Martin, [1998] 1 All ER 193, at 216, per Lord Clyde). âSomething so unfair
and wrong that the court should not allow a prosecutor to proceed with what is
in all respects a regular proceeding.â (R v Hui-Chi-Ming [1992] 1 AC 34, at
57B, per Lord Hope)
âAn abuse may occur through the actingâs of the prosecution, as by misusing
or manipulating the process of the court. But it may also occur independently
of any acts or omissions of the prosecution in the conduct of the trial
itselfâ. (Martin (supra), at 215, per Lord Clyde) Recently Harms DP remarked as
follows in NDPP v Zuma (573/08) (2009) ZASCA at paragraphs 37 to 38 âThe court
dealt at length with the non-contentious principle that the NPA must not be led
by political considerations and that ministerial responsibility over the NPA
does not imply a right to interfere with a decision to prosecute. This however,
does 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 determined once criminal proceedings have been
concluded.
The motive behind the prosecution is irrelevant because, as Schreiner 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 apply to prosecutions.
This does not, however, mean that the prosecution may use its powers for
âulterior purposeâ. To do so would breach the principle of legality. The facts
in Highstead Entertainment (Pty) Ltd t/a âThe Clubâ v Minster of Law and Order
illustrate and explain the point. The police had confiscated machines belonging
to Highstead for the purpose of charging it with gambling offences. They were
intent on confiscating further machines. The object was not to use them as
exhibits they had enough exhibits already- but to put Highstead out of
business.
In other words, the confiscation had nothing to do with the intended
prosecution and the power to confiscate was accordingly used for a purpose not
authorised by the statute. This is what âulterior purposeâ in this context
means. That is not the case before us. In the absence of evidence that the
prosecution of Mr Zuma was not intended to obtain a conviction the reliance on
this line of authority is misplaced as was the focus on motive.â
Allegations of abuse of process in recordings of telephone calls
I will now deal with the contents of some of the recordings as set out
below. I believe that it is in public interest to make this available as this
is matter of huge public interest, and I believe that it is important for
members of the public to be able to draw their own conclusions about the nature
conduct.
Calls about manipulating the timing of charges for other purposes
2. Date: 7 November 2007, 10h25 BN
c. LM: The second thing is, I, remembering what you said on Saturday, I read
yesterdayâs Business Day editorial, you must just read it
d. BN: Just remind me
e. LM: yes, itâs in line with your thinking
f. BN: Laughs
g. LM: I am serious apparent reference to the enclosed Business Day editorial
of
Date: 6 November 2007. The editorial is of the view that it appears to
benefit Mr Mbeki when Mr Zuma is not facing charges
h. LM: The third issue is, I met with the guy I mentioned, and you know his
line is almost like that of Sam
i. BN: Laughs
j. LM: But he said he will. He says he will speak to the man but his he is back
over the weekend, but he knew, he feels very strongly that I should not see the
guy directly
k. LM: So that he has a shield, so that if this issue comes up then he can say
âI donât know what the fuck you are talking aboutâ
There is regular reference to the need to meet or discuss with âthe manâ, âthe
other fellowâ or âguyâ or âheâ. In calls 17, 21, 25, 26, 28 it is clear that it
is the President. In most other cases it is not clear who is meant.
y. BN: you know very interesting there is a different point of view across the
board
z. LM: You donât want to join this dinner with Mzi?
aa. BN: No, you will see, his view is completely opposite he agrees with you.
He and Sam agree with you. We had dinner on Sunday, quite a number of people,
mine was there, Dlamini? Was there
i. I put a hypothetical question to them, letâs assume the judgement comes out
in next few weeks and its in favour of those guys, what must happen by
when?
ii. Mzi was the only one on that table who said lets do it now, he was the only
one
iii. If he tells you the truth he and tells you that, everyone there disagreed
with him
discussion of timing of charge of Mr Zuma. Mzi Khumalo appears to be only one
who supports LM in view that it should happen before Polokwane
6. Date: 26 November 2007, 20h43 BN
g. BN: So you the only one who can just save this country from its
madness
h. LM: hmm
i. BN: You know
j. BN: I just canât believe it, I really canât believe it, I donât know, so we
also busy now
k. Hmm
l. And a
m. LM: and what does the big man say, is he oraait,
n. BN: I donât know,
o. BN: I want to, I will try to call him later tonight, he is in a meeting the
whole day, at Shell house of all places (laughs)
q. LM: I did what you said I should do, I must say
r. BN: you did right, right thing
s. LM: up until Friday, I received a strong memorandum to say charge and charge
now
t. BN: Friday
u. LM: No this Friday, the team says we have been fucking around with this
thing, we are allowing ulterior considerations to come in, it will become an
impossibility later we now must take action and deal with âfinish and klaarâ as
Jackie Selebi says, but we will talk when I see you following a discussion
about ANC provincial nomination conferences, LM is the only one who can save
the country.
Appears as if BN requested that LM obtain the view of the team to bolster
the argument that charges should brought before Polokwane (in case it was
needed)
10. Date: Wednesday, 12 December 2007, 10h41 BN
R. LM: But listen, I think you guys must just keep your heads open about the
âwhenâ factor because I mean we will file our docs tomorrow, we will, Mpshe is
going on leave tomorrow and I am acting.
s. LM: We will have our section 2e order and our, our we will have finalised
the processing of the decision
The when factor is an apparent reference to, whether Mr Zuma should be
charged before or after Polokwane.
The s2(e) order is a reference to the authorisation for a racketeering
prosecution that must be issued by the NDPP
t. BN: As long as you donât do it this weekend
u. LM: If we hold it back, it will be because the clever people like you and
others are saying to us that the country needs cool heads but I would hate to
have be seen to be wrong later
v. BN: just donât do it this weekend
w. LM: it might change
x. BN: I cant keep an open mind, you canât do it this weekend, our minds wont
change
y. The exchange is repeated several times
z. BN: Just donât do it this weekend
aa. LM: I wont move this weekend, if this change, just let us know
bb. BN: it wont change
BN makes it clear that they do not want Mr Zuma to be charged before
Polokwane despite the fact that everything is in place to do so
Calls about manipulating the filing of papers in the Constitutional Court
for other purposes
8. Date: Wednesday ,12 December 2007, 10h15 SMS exchange BN and LM
a. BN: When are you filing
b. LM: Weâre stretched. It has tripled in size now. Likely to file tomorrow
afternoon or Friday afternoon only. What up!
c. BN: The sooner the better. Not later than tomorrow. It will assist a great
deal Refers to the NPAâs reply to Mr Zumaâs application for leave to appeal to
the Con Court in the search warrant matter. It was due on 14 December.
Date: Wednesday 12 December 2007, 10h41 BN
a. LM: We must have one of those Yengeni nights remember we said we will not
leave this fucking hotel until its done
The reference is to a meeting with Mr Yengeniâs lawyers that lasted late into
the night
b. BN: If this thing comes out the way we discussed it yesterday,
i. those key issues, right
ii. it will be a devastating one for them,
iii. and it will cause people to wake up to know what they are actually
doing
iv. without being dramatic, without you making arrests,
v. it will say, this is what we have, this is what we have, and we are forced
to state it now and people will wake up think what are we doing
c. LM: Friday, by Friday people are packing bags, they wonât even read the
fucking newspapers
d. BN: That is the thing, that is the thing, that is why it will be good if it
could come out today (ie Wednesday)
e. LM: Today is difficult, I will call a Yengeni night, we are not leaving here
until we finalise this tomorrow morning, we file by lunch time and give it to
the media,
f. BN: You made my day this is a discussion about the need to file it earlier
so that it can be reported in the newspapers before the delegates leave for
Polokwane.
10. Date Thursday cell 13 December 2007, 12h20 BN
a. LM: What is the mood like?
b. BN: Is it out?
c. LM: no no, I am just checking the pulse of securities
d. LM: You know, I thought I will give call you once a day, twice a day to hear
whether the position has not changed
e. That thing will only be filed tomorrow
iv. So we will probably only file tomorrow at about 12h50, we have a date for
10 to one
f. BN: how does it look?
g. LM: its ugly, you need someone who can nitpick and read through all that
shit of 212 pages, and look at para 79
h. BN: Can you deliver a draft to my place?
i. BN: I will be in Johannesburg
j. LM: I will get, I will rather come myself, I donât want to take
changes
k. BN: No I will be late tonight
l. LM: I will wait for you, or see you first thing in morning. I donât want
intermediaries here
m. BN: ok, your right
n. LM: Zuma will say we are conspiring against him
o. LM: can I ask, the script has not changed yet
p. BN: Ya, no
q. LM: because (do/donât) feel like going to Polokwane and charging him there
Cont discussion about the need to file Con Court papers earlier
The position or script is apparent references to whether Mr Zuma should be
charged before or after Polokwane
LM undertakes to deliver a draft of the Con Court papers to BN personally to
avoid it becoming known
It is unclear whether he says he âdoâ or âdonâtâ want to do this
12. Date: Friday, 14 December 2007, 10h53 BN
a. LM: are you in position where I can drop something off or send someone to
drop something off
b. BN: drop it at home, not there yet
c. LM: the one thing is an eight pager, which you should read because it deals
with whatever is new
i. The rest is just same shit we have heard for the last 3 years
d.
e. LM: I want to get this to you, I canât leave it in envelope with drivers and
things it is too risky. My guy can drive to where you are and give it to
you
f. BN: itâs not possible, in East London
g. LM: Can also fax it to you,
h. BN: I will give you a fax no
i. LM: You must physically stand there and wait for it
LM prepares and sends a short summary of key issues that are newsworthy to
BN for apparent distribution to the media
13. Date Friday 14 December 2007 12h03 SMS BN
a. BN: The fax number is 040 653 2223. Thanks
14. Date: Friday, 14 December 2007, 12h32 SMS BN
a. BN: I am standing next to the fax machine. Hope you wonât forget me.
15. Date: Friday, 14 December 2007, 12h43 SMS BN and LM
a. BN at 12h43: Got it. Thank you very much
b. LM at 12h56: Hold onto it for a while, until.
16. Date: Friday, 14 December 2007 BN 13h08
a. LM: I just wanted to say its been filed, I am told you can show it even to
the guy on the beachfront
b. LM: It is in court, anyone can access it â I just got an SMS, it was filed
three minutes ago
LM informs BN that papers have been filed and can be distributed
Apparent political affiliation
28. Date: about 24 December 2007, 11h49 Voicemail to F Davids
a. LM: Davids, uh, McCarthy here, give me a ring please, you send me ân
gevaarlike sms here just before Christmas. I am Thabo man; I mean we are still
wiping the blood from our faces, or egg, or egg and blood from our faces. Saw
the man on Friday evening, we planning a comeback strategy and once we have
achieved that, we will clean up all around us my friend. Bye
Allegiance to Mr Mbeki, confirm that they met, and âweâ are planning a comeback
strategy
Discussion with person in private intelligence industry about seemingly
political solutions to NPA cases:
18. Date: 16 December 2007 SMS exchange between Luciano to LM
b. LM: I have been advised to give Ouboet and Oujan a break in the interest of
SA. Tenous times. QV?
i. L: What did Jesus say? Give to the emperor what is due to him and to the
church what is due to her. You serve at the pleasure of the emperor. Any other
choice would mean not serving at the pleasure of the emperor
j. LM: I hear you emperor sir. Theyâre asking for a review. What
k. L: Primus salus amicus ET familia. Thatâs the motto
l. LM: Yea. Threatening to expose no. one
m. L: Approach hold even if Lume looses (sic)
As far as can be established, Luciano is a private intelligence operative
Ouboet is Mr Selebi
Oujan is probably Mr Zuma
Presumably a review of the cases
âLumeâ is nickname for Mr Mngwengwe, the Investigating Director of the DSO
19. Date: 17 December 2007 SMS exchange between Luciano to LM
L: Thought over night one. Recommend we help you find two sympathetic and
credible international lawyers that can join each of the two reviews.
* International component important for South Africaâs reputation and your
own. If carefully selected will support objective.
* In ouboetâs case need international component to deal decisively with o
sullivan factor. Matter also high profile given K allegations, media interest
and focus on crime in lead up to 2010.
* Iro Oujan recommend a comprehensive review is done of ALL MLA and prosecution
cases are done flowing from arms deal not just his by review panel with
international lawyers as you originally recommended. Cont
* You can then deal with oujan in context of broader review.
* If you are going to do this in interest of SA recommended you request
* You submit review report to Special Committee of 4 ministerâs justice, Intel,
foreign affairs and safety and security. Do not take sole responsibility. Yr
current line management structure will result in sole responsibility.
* Recommend you come to clear agreement about SAG support for the next phase of
yr career including a date.
* You are going to need resources include special budget because above all the
media will have to be managed locally and globally. End.
Proposal for what appears to be a further review panel for the Selebi (and
Zuma) matters
The Selebi review panel had concluded its work at the end of November 2007.
K is probably Kebble
SAG = South African Government? The review panels appear to be linked to the
future World Bank position
Conclusion
It is against this broad principle of abuse of process that the conduct of
Mr McCarthy must be seen and tested. The question for close consideration is
encapsulated in expressions such as â so gravely wrongâ, âgross neglect of the
elementary principles of fairnessâ, âso unfair and wrongâ, âmisusing or
manipulating the process of the court.â If the conduct can be so categorised,
it would be unconscionable for the trial to continue. Using oneâs sense of
justice and propriety as a yardstick by which McCarthyâs abuse of the process
is measured, an intolerable abuse has occurred which compels a discontinuation
of the prosecution.
What actually triggers the abuse of process is a major determining factor,
because it is that trigger which determines the purpose of the abuse and
reveals whether the conduct in question is directed at a legitimate or
illegitimate purpose.
In the present matter, the conduct consists in the timing of the charging of
the accused. In general, there would be 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.
It follows therefore that, any timing of the charging of an accused person
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 system and subjects the accused person to that abuse of process. Abuse
of process through conduct which perverts the judicial or legal process in
order to accomplish an improper purpose offends against oneâs sense of
justice.
The above implies the following:
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 head of the
DSO, and was in charge of the matter at all times and managed it almost on a
daily basis, 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.
Mr McCarthy used the legal process for a purpose other than which the
process was designed to serve, i.e. for collateral and illicit purposes. It
does not matter that the team acted properly, honestly, fairly and justly
throughout. Mr McCarthyâs conduct amounts to a serious abuse of process and
offends oneâs sense of justice.
What Mr McCarthy did was not simply being over-diligent in his pursuit of a
case; it was pure abuse of process. If Mr McCarthyâs conduct offends oneâs
sense of justice, it would be unfair as well as unjust to continue with the
prosecution. In the light of the above, I have come to the difficult conclusion
that it is neither possible nor desirable for the NPA to continue with the
prosecution of Mr Zuma.
It is a difficult decision because the NPA has expended considerable
resources on this matter, and it has been conducted by a committed and
dedicated team of prosecutors and investigators who have handled a difficult
case with utmost professionalism and who have not been implicated in any
misconduct. Let me also state for the record that 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.
However, I believe that the NPA has a special duty, as one of the guardians
of the Constitution and the Bill of Rights, to ensure that its conduct is at
all times beyond reproach.
As an officer of the court I feel personally wronged and betrayed that on a
number of occasions I have given evidence under oath that there has not been
any meddling or manipulation of the process in this matter. It is with a great
regret that I have to say today that in relation to this case I can not see my
way clear to go to court in future and give the nation this assurance.
The need for further investigation
The NPA has taken the information that was uncovered very seriously and has
done its utmost to get to the bottom of all the allegations that it has
investigated. It has also taken the initiative to cooperate fully with the
Browse Mole investigation into possible illegal intelligence gathering
activities in the DSO, and has managed to uncover significant new information
in the process.
The NPA has also tried to investigate and asses the impact of the revelations
on other aspects of our work that happened in the past.
However, in the time available, it has simply not been able to deal fully
with all these aspects and come to firm conclusions. While the NPA will
continue with its investigations, it has also decided to prepare a full report
and present it to the Minister of Justice and the President to decide on
further action. The NPA believes that it is vital that a full and proper
investigation must be conducted by a judge or independent person to make
recommendations about any further actions to be taken, whether of disciplinary
or criminal nature, as well as the framework within which the NPA operates to
ensure that such abuses never occur again.
Issued by: National Prosecuting Authority
6 April 2009
Source: National Prosecuting Authority (http://www.npa.gov.za/)
