IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

SCA CASE NUMBER: __________/2016 NGHC Case Number: 19577/09 In the matter between:

JACOB GEDLEYIHLEKISA ZUMA

Applicant

and DEMOCRATIC ALLIANCE

First Respondent

ACTING NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS THE HEAD OF THE DIRECTORATE OF SPECIAL OPERATIONS

Second Respondent

Third Respondent

ANSWERING AFFIDAVIT

I, the undersigned, ELZANNE MUREEN JONKER

do hereby make oath and state as follows:

1.

I am an adult female and a director of Minde Schapiro & Smith Inc., the firm of attorneys which has represented the First Respondent (the DA) from the outset of the litigation in this matter in 2009. I was personally responsible for dealing with the High Court review application that resulted in the Judgment

2 and orders against which the Applicant now wish to appeal. I am authorised to depose to this affidavit.

2.

This response contains in the main legal argument and it is accordingly appropriate for me to depose to this affidavit, in which I set out the grounds on which the application is opposed. To the extent that there are facts herein contained, they are within my personal knowledge, and they are true and correct.

A.

INTRODUCTION

3.

I will not deal with each and every allegation in the founding affidavit of Mr Michael Andrew Thomas Hulley and my failure to do so must not be construed as accepting the correctness thereof.1 I shall try rather to deal thematically with the main issues raised in the application. This is not an easy task because the grounds on which leave are sought are not listed under separate headings and some the issues, such as the relevance of the Browse Mole investigation, are raised repeatedly, albeit in different contexts.

1

The founding affidavit (FA), deposed by Mr Hulley contains factual mistakes. For instance, Mr Hulley contends that Mr McCarthy was responsible for all decisions about the prosecution of Mr Zuma (see FA para 21.1). He further contends that on 20 or 21 December 2007, Mr McCarthy made the decision to charge Mr Zuma immediately (see FA para 21.7); and that Mr Zuma was formally charged (again) on 28 December 2007 (see FA para 14). At the hearing before the Full Bench it was common cause that a corporate decision, involving Mr Mpshe himself, was taken to reinstate the prosecution against Mr Zuma on 29 November 2007 but that the service of the indictment only took place on 28 December 2007. See the Judgment at p. 8, para 12. Of course, if Mr McCarthy (as opposed to Mr Mpshe) took the 2007 decision to prosecute Mr Zuma, then the consultation requirements of s 179(5)(d) of the Constitution had to be followed in the 2009 decisionmaking process, when Mr Mpshe decided to revisit the matter. The consultation requirements were not met.

3 4.

In my view, the issues raised in the application are best addressed in the following order and under the following headings:

4.1

The proper interpretation of s 17(1) of the Superior Courts Act 10 of 2013 (the Act).

4.2

The question of whether a Court or the National Prosecuting Authority (NPA) should determine whether an abuse or process justifies discontinuation of a prosecution.

4.3

The analysis of the Full Bench of the evidence and the question whether the Plascon-Evans rule was correctly applied.

4.4

The relevance of the Browse Mole investigation; and other allegations regarding a broader political conspiracy against Mr Zuma.

4.5

The alleged manipulation of the timing of the prosecution after the Polokwane election.

4.6

Whether the orders made by the Full Bench have the effect of automatically reviving the prosecution of Mr Zuma.

4.7

Whether there are compelling reasons, other than reasonable prospects of success, which justify the granting of leave to appeal.

5.

Before dealing with each of the seven grounds in turn, it is necessary to make a few general remarks:

4 5.1

An appeal will lie against the orders granted by the Full Bench, and not against its reasoning.2 The function of courts of appeal is “resultsdriven.”3 It is accordingly not good enough for the Applicant to attack parts of the reasoning of the Court without demonstrating that the correct approach would impact on the orders the Court made.

5.2

It is significant, in this regard, that the Applicant fails to deal at all with the Full Bench’s findings of procedural irrationality, and in particular with the central finding that the impugned decision was based on “legally untested allegations”.4 Most notably, the Full Bench correctly found that the allegations against Mr McCarthy required enquiry.5 Instead, Mr Mpshe engaged in a “half-hearted attempt at investigation”, and did not wait for answers from Mr McCarthy or Mr Ngcuka.6 Furthermore, the Full Bench quite correctly found (and it cannot be controverted) that Mr Mpshe made a decision in haste, without good reasons and in the absence of consultation with the prosecution team.7 This was done in the face of a looming permanent stay application in

2

Hyprop Inv Ltd v NSC Carriers & Forwarding CC 2014 (5) SA 406 (SCA) at para 21. In Administrator, Cape, and Another v Ntshwaqela and Others 1990 (1) SA 705 (A) at 714J – 715E it was held that: “When a judgment has been delivered in court, whether in writing or orally, the registrar draws up a formal order of court which is embodied in a separate document signed by him. It is a copy of this which is served by the sheriff. There can be an appeal only against the substantive order made by a court, not against the reasons for judgment.” 3 Capendale and Another v Municipality of Saldanha Bay and Others, In Re; Capendale and Another v 12 Main St, Langebaan (Pty) Ltd and Others [2014] ZAWCHC 3 (29 January 2014) at para 13, available on the Saflii website. 4 Judgment at p. 35, para 71 5 Judgement at p. 25, para 52 6 Judgment at p. 25, para 53 7 Judgment at pp. 43 – 44, paras 83 – 85

5 which the viability of the prosecution and the merits of Mr Zuma’s complaints would have been considered.8

5.3

A second aspect which the Applicant fails to deal with is that Mr Mpshe failed to apply his mind to a crucial aspect of the test to be applied in abuse of process cases.

The line of foreign cases9 adopted by

Mr Mpshe requires a two-stage analysis, if it is established that an abuse of process has occurred.

In the first stage the question is

whether the abuse will render it impossible for the accused to have a fair trial. If so, the proceedings must be stayed. In the second stage, and if a fair trial remains possible, the judge must weigh countervailing considerations of policy and justice.

More particularly, the public

interest in ensuring that those that are charged with grave crimes should be tried, must be weighed against the competing public interest in not conveying the impression that the Court will adopt the approach that the end justifies the means.10 Whilst Mr Mpshe performed the first part of the analysis and concluded that the abuse would not render Mr Zuma’s trial unfair, he never applied his mind to the second part, which required a weighing exercise to be performed.

There is no

indication in Mr Mpshe’s statement, or in the affidavits filed on behalf of the NPA, that such a weighing exercise was ever conducted.11 The

8

Judgment at p. 34, para 70 R v. Latif [1996] 1 All ER 353 (HL) and subsequent cases 10 Latif supra at p. 361 b-e 11 The claim by the Applicant to the contrary is simply not supported by the evidence. See the claim at FA p. 14, para 22.3. 9

6 Full Bench accordingly correctly accepted12 the DA’s contention that Mr Mpshe failed to apply his mind to an important, if not the central, issue he had to consider. In these circumstances, no rational decision could have been made.

5.4

There is a third aspect which underpins the Full Bench’s judgment and orders, which the Applicant barely addresses in this application for leave to appeal. It is trite that the principle of legality requires that the exercise of public power must be rationally related to the purpose of the power. In the proceedings before the Full Bench it was common cause that the purpose of Mr Mpshe’s decision was “to protect the integrity of the NPA and its processes”.13 The line of authority relied upon by Mr Mpshe indicates that if the accused’s right to a fair trial is not

implicated,

police

or

prosecutorial

misconduct

must

be

exceptionally serious before it outweighs the duty to prosecute. These authorities are to the effect that if a prosecution is stopped in matters falling short of highly exceptional cases, then more harm is done to the integrity of the prosecuting authority than good.

Permanent stay

applications have accordingly only succeeded in cases of irregular rendition;14 entrapment;15 premeditated violation of attorney-client

12

Judgment at p. 32, para 66 Judgment at p. 29, para 60. This also reflects the position in the NPA’s heads of argument in the Court a quo. 14 R v Horseferry Road Magistrate’s Court, ex parte Bennett [1994] 1 AC 42 (HL). A case of disguised deportation arose in R v Mullen [2000] QB 520. 15 The Latif case, and R v Looseley; Attorney General's Reference (No 3 of 2000) [2001] WLR 2060 13

7 privilege;16 or a breach of a plea bargain by the State.17 In most of these cases it is clear that “but for” the unlawfulness, the accused would never have faced prosecution. Outside the “but for” cases, it is only very exceptionally that a prosecution would be stopped for misconduct on the basis that a trial “would unacceptably compromise the moral integrity of the criminal justice system”. The present case is not a “but for” case. Thus something quite extraordinary would be required before it would outweigh the imperative that in the face of compelling evidence, accused persons should face their charges. In this regard the conduct on which Mr Mpshe founded his decision was limited to Mr McCarthy’s alleged actions to manipulate the timing of the service of the indictment on Mr Zuma. Given the societal expectation that accused persons should face their charges, this kind of abuse could never serve as a rational justification for discontinuing the prosecution of Mr Zuma. The abuse was not of the exceptional kind where discontinuation could rationally further the objective of restoring the integrity of the NPA. It could only do more harm than good.

5.5

The Applicant’s failure to deal with the above three aspects is critical and fatal to the application for leave to appeal. focused on two aspects:

The Applicant has

firstly, the Applicant claims that the Full

Bench erred by finding that only a Court may discontinue a prosecution

16

R v Grant [2006] QB 60 Fox v Attorney General [20002] 3 NZLR 62, in which an accused agreed to plead guilty based on the undertaking that he would not then be tried for further related crimes. The prosecution reneged on this deal. 17

8 in abuse of process cases and, secondly, that the Full Bench erred by not attaching weight to Mr McCarthy’s role in the Browse Mole investigation. Even if the Applicant were to be successful in convincing this Court on these aspects, the impugned decision would still be irrational, and invalid. The orders of the Full Bench would thus remain.

B.

THE PROPER INTERPREATION OF S 17(1) OF THE ACT

6.

Section 17(1)(a) of the Act provides that leave to appeal against a judgment of the High Court may only be given if “the appeal would have a reasonable prospect of success”18 or if there are “some other compelling reasons why the appeal should be heard”.19

7.

There can be little doubt that the Act has raised the bar in respect of the first of the two options (reasonable prospects of success) for granting leave to appeal. In Mont Chevaux Trust (IT 2012/28) and Tina Goosen and 18 Others,20 Bertelsmann J held as follows (my underlining):

“It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, See Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H. The use of the word “would” in the new statute indicates a measure of

18

Section 17(1)(a) of the Superior Courts Act 10 of 2013 Section 17(1)(b) of the Superior Courts Act 20 Unreported case No. LCC 14R/2014 (Copy annexed). 19

9 certainty that another court will differ from the court whose judgment is sought to be appealed against.”21

8.

The reasoning is straightforward. It is not clear why the Applicant disagrees therewith. In the founding affidavit, it is merely stated that the s 17(1) of the Act was intended to “codify the common law”.22 But this argument does not hold water because the wording of the Act indicates otherwise. The wording cannot be disregarded with reference to speculation about the intention.

C.

SHOULD COURT OR NPA DETERMINE WHETHER ABUSE JUSTIFIES DISCONTINUATION?

9.

The Full Bench held that “It is thus our view that Mr Mpshe, by not referring the complaint of abuse of process and the related allegations against Mr McCarthy to court, rendered his decision irrational”.23

10.

The Applicant takes issue with this statement and contends that:

“The fundamental flaw in the Court a quo’s approach was the conflation of the discretionary power of the NDPP with an accused’s remedy of a permanent stay which lies in the discretion of the Court. These are not equivalent powers nor do they involve similar processes or considerations. Obviously certain factors may feature in either exercise but they are very different. Mr Zuma’s right to seek a Permanent Stay cannot serve to deprive the NDPP of his discretion.24

21

See, also, Bisschoff and Others v Welbeplan Boerdery (Pty) Ltd (M66/2016) [2016] ZANWHC 15 (29 April 2016) at para 2; Daantjie Community and Others v Crocodile Valley Citrus Company (Pty) Ltd and Another (75/2008) [2015] ZALCC 7 (28 July 2015) para 3; Rula Tecno Park (Pty) Ltd v Mahlangu and Others (LCC66R/2015) [2016] ZALCC 6 (11 April 2016) para 2. These cases are all available on the Saflii website. 22 FA at p.35, para 50 23 Judgment at p. 35, para 71 24 FA at p. 23, para 39.4

10 11.

In its judgment in the application for leave to appeal, the Full Bench made clear that it was not laying down a general principle that the validity of an abuse of process complaint should always be determined by a court of law.25 Rather, it found that in the circumstances which prevailed when Mr Mpshe took his decision, a court was the appropriate forum to deal with the alleged abuse of process.26

On this aspect, the finding of the Full Bench is

undoubtedly correct because:

11.1

At the time when Mr Mpshe made his decision, Mr Zuma had already committed to a timetable for the filing of papers in respect of the permanent stay application.

11.2

Mr Zuma was not a person who at any stage lacked the financial means to pursue the permanent stay application.

11.3

When he made the decision, Mr Mpshe did not have a full response from Messrs Ngcuka and McCarthy (and other relevant actors, such as Mr Kasrils, and possibly former President Mr Mbeki) before him. That could have been obtained in the context of the permanent stay application.

Mr Zuma’s allegations were indeed “untested” in the

sense that the prosecuting team and external counsel never had a proper opportunity to consider possible defences, after proper consultation with Mr McCarthy and others who were implicated.

25 26

Judgment on Leave to Appeal, para 8 Judgment on Leave to Appeal, para 10

11 11.4

Mr Mpshe also did not have a sworn version of the allegations of abuse from Mr Zuma. This would have had to be furnished in the permanent stay application.

11.5

Even if the (untested) allegations of abuse were to be accepted at face value, no clear-cut case was made out for the kind of abuse of process which should result in the termination of a prosecution.27 Adv Trengove SC indeed advised that, on what he was told, the NPA would not “persist with a hopeless case” if it rejected the representations and awaited the permanent stay application.

11.6

Furthermore, as the leader of the prosecution team Mr Downer had advised, the kind of complaint raised by Mr Zuma was one to be determined by an independent court of law in a public hearing and that it was inappropriate (irrational, the DA submits) for the NPA to determine the issue behind closed doors in a process which was secret and lacking in transparency.

12.

For these reasons it was irrational in the circumstances of the present matter, for Mr Mpshe to pre-empt the value judgment of a court of law on Mr Zuma’s complaint that an abuse of process justified discontinuing the prosecution.

27

This is evidenced by the fact that until 1 April 2009, when Mr Mpshe suddenly announced his decision, the entire prosecuting team plus independent senior counsel (Advs Trengove SC and Breitenbach SC) plus all top and senior NPA management, with the exception of Mr Hofmeyr, felt that the representations should be rejected. Mr Hofmeyr made the case for not proceeding all by himself. There is in fact no evidence on the record which shows that anyone else supported Mr Hofmeyr until Mr Mpshe suddenly announced his decision on 1 April 2009 to drop the charges.

12 13.

It will accordingly not be necessary for this Court to determine whether or not the NPA may, as a matter of principle, discontinue a prosecution on the basis of an allegation of abuse of process. In fact, it will not be possible for this Court to reach that issue because:

13.1

The line of authorities relied upon by Mr Mpshe dealt with a discretion which (1) vested in a court; (2) could only be exercised in favour of granting a permanent stay in the “most exceptional of circumstances”; and (3) could only be exercised in order to prevent the court’s processes from being abused by the executive or the prosecution.

13.2

In his statement setting out his reasons, Mr Mpshe edited the excerpts from this line of authority so as to remove the references to the court’s discretion.

13.3

The transfer of the court’s discretion to the prosecution authority, in the exact same terms, can never be correct.

13.4

Indeed, in the founding affidavit, the Applicant appears to accept this much because it is stated that the discretion of the prosecuting authority and the court in a permanent stay application do not “involve similar processes or considerations. Obviously certain factors may feature in either exercise but they are very different.”28

28

FA at p.23, para 39.4

13 13.5

The DA submits that if such a prosecutorial discretion were to be recognised in abuse of process cases, it would have to be available in an even narrower category of cases.

This would be necessary

because the prosecuting authority is then granted authority to essentially pre-judge what will “offend the court's sense of justice and propriety”.

13.6

Mr Mpshe did not apply his mind to any of these considerations. He simply appropriated the judicial discretion recognised in cases such as Latif for himself.

13.7

It is accordingly not an appropriate matter to consider whether, in principle, prosecutors should have a discretion to discontinue a prosecution based on abuse of process. Regardless of whether there is such a discretion, what Mr Mpshe did can never be correct.

D.

PLASCON EVANS APPROACH

14.

The Applicant suggests that the Full Bench could not have come to the findings it did had it properly applied Plascon-Evans.29 It is contended that the Full Bench erred because it regarded the evidence of the NPA’s deponent (Mr Hofmeyr) as an opinion.30

15.

It is submitted that argument of the Applicant leaves out of account that Mr Mpshe’s decision and Mr Hofmeyr’s affidavit were based on their

29 30

FA at p.18, para 28 Ibid

14 interpretation of the recorded conversations (which were later transcribed for purposes of compiling the Rule 53 record), and their own inferences. This interpretation is not a fact which a court is obliged to accept. The court is as well placed as Mr Hofmeyr to interpret the transcripts of the intercepted telephone calls. As I shall explain below, the recordings of the intercepted conversations was the sole basis for the decision to drop the charges. Whilst it must be accepted, as a matter of fact, that the conversations occurred, the Court is not bound by the NPA or Mr Zuma’s interpretation thereof.

E.

RELEVANCE OF BROWSE MOLE AND OTHER ALLEGATIONS REGARDING THE EXISTENCE OF A BROADER CONSPIRACY

16.

It was precisely because Mr Zuma realised that the intercepted conversations did not rise to the level of justifying the withdrawal of the charges, that he suggested, in the answering affidavit filed on his behalf, that the culpable misconduct of Mr McCarthy and others goes further, and includes inter alia Mr McCarthy’s role in the Browse Mole operation and a broad conspiracy against him involving Mr Mbeki.

17.

Factual disputes may exist regarding these claims of a broader conspiracy but they are irrelevant, as the decision taken by Mr Mpshe was based on the contents of the intercepted conversations, and nothing else.

18.

The NPA has accepted that those parts of Mr Hofmeyr’s affidavit which deal with Browse Mole and a broad conspiracy were merely included to provide the context within which the intercepted conversations should be analysed.

19.

The Browse Mole investigation cannot be relevant because:

15 19.1

The criticism of Mr McCarthy in the report of the Parliament’s Joint Standing Committee was a matter of public record in November 2007, when the corporate decision was taken to charge Mr Zuma.31 It did not play a role then because Browse Mole had never been discredited officially for being politically motivated.

Mr McCarthy was merely

criticised because the investigation fell outside the mandate of the Directorate of Special Operations (Scorpions).

19.2

The intercepted conversations could not have “opened the eyes” of Mr Mpshe and Mr Hofmeyr regarding what had been going on,32 i.e. revealed the true significance of Browse Mole.

In Mr Mpshe’s

reasons, he specifically noted the need for further investigation regarding the Browse Mole investigation, and stated that, in the time available, no firm conclusions could be reached. In short, Mr Mpshe disavowed any reliance on Browse Mole.

19.3

No further investigation into Browse Mole ever took place.

The

Special Investigating Unit, headed at the time by Mr Hofmeyr, merely concluded on 9 April 2009, some three days after Mr Mpshe announced his decision to discontinue the prosecution, that it could not establish who leaked the report to COSATU.

31

See the Judgment at p. 9, para 18. FA at p. 31, para 43. This is a theme which permeates the entire founding affidavit in the application for leave to appeal. 32

16 20.

Much of the above applies to the other claims made by the Applicant which supposedly show that there was a broader conspiracy instigated by Mr Mbeki and stretching over many years, to undermine Mr Zuma’s political career. These have simply never been proven nor did they play any role in Mr Mpshe’s decision.

F.

MANIPULATION OF TIMING OF PROSECUTION AFTER POLOKWANE

21.

The question whether Mr McCarthy sought to or in fact manipulated the timing of the service of the indictment by causing it to be delayed, for political reasons, until after the Polokwane elective conference, was disputed throughout the proceedings. 33

22.

It must be borne in mind that there was a perfectly acceptable reason for delaying the service of the indictment, which was that the NPA should avoid the appearance of entanglement in the ANC’s Polokwane process and that the service of the indictment shortly before the Polokwane conference could have resulted in violent protest and even loss of life. Mr Mpshe accepted this justification, which also accorded with the approach adopted by then Minister

33

The extent to which this occurred remains obscure. A central theme of the DA’s case was that the Rule 53 record disclosed that the timing decision was in fact made by Mr Mpshe alone, and not Mr McCarthy. In an otherwise sprawling answering affidavit, Mr Hofmeyr was notably vague on this aspect. His evidence is only that in November 2007, Mr McCarthy made unsuccessful “informal” approaches to convince Mr Downer and him that the prosecution should be delayed; and that at some later (undisclosed) time Mr Mpshe had reported that “McCarthy had persuaded him that it was necessary to postpone the prosecution”. In reply the DA pointed out that this unsubstantiated and undetailed allegation was untenable for various reasons, and called on Mr Mpshe to provide details and a proper explanation. Mr Mpshe then presented a new version (some six years after his decision, and after the DA had filed heads of argument), which was that, although he pretended to Mr Downer that he took the decision himself, he was in fact influenced by Mr McCarthy.

17 of Justice, Ms Mbandla.

On this basis the decision to delay was quite

legitimate, and the reason for the delay appropriate.

23.

It was against this background, and given the inherent improbability of a political rationale for delaying service of the indictment, that the Full Bench reached the conclusion that, on the information before Mr Mpshe, he could not have rationally concluded that there was in fact manipulation of the timing of the prosecution for political reasons.34

24.

The Applicant, in his founding papers before this Court has largely jettisoned his original basis for claiming political meddling with the timing of the prosecution.

He has sought to shift the focus to a second leg of the

manipulation argument, which is that there was an acceleration (by a few days) of the service of the indictment, post-Polokwane, at the instance of Mr McCarthy. The thesis is that Mr Mpshe’s decision had been to wait until January 2008, but Mr McCarthy caused the indictment to be served by 28 December 2007.

25.

On this aspect, this DA submits that:

25.1

This was not the basis on which Mr Mpshe had concluded that there was an abuse of the process for an ulterior purpose.

34

Judgment at p. 40, para 76

18 25.2

Almost every allegation supporting the second leg amounts to speculation and hearsay.

There are no relevant intercepted

conversations concerning the alleged manipulation.

25.3

The Applicant battles to ascribe any malign political motive to the relatively insignificant degree of acceleration of the service of the indictment, post-Polokwane.

The best that he can muster is that

Mr McCarthy was fearful that Mr Mbeki would be recalled and that this would frustrate Mr Zuma’s prosecution.35

The suggestion really

amounts to an admission that political interference was expected from Mr Zuma’s camp and that to avoid this interference Mr McCarthy acted with alacrity.

25.4

It is in any event not clear why speedy action was so undesirable, particularly considering the fact that the prosecution team had always indicated that they were opposed to the postponement of the service of the indictment once everything was in place to do so.

That is

undoubtedly the correct approach.

26.

For these reasons, it is submitted that the second leg of the manipulation argument falls to be rejected as clearly untenable. It could never have formed a proper basis for Mr Mpshe’s decision.

G.

35

THE EFFECT OF THE ORDERS GRANTED BY THE FULL BENCH

FA at p.13, para 21.8

19 27.

At paragraph 92 of the Judgment, the Full Bench stated that “the envisaged prosecution against Mr Zuma was not tainted by the allegations against Mr McCarthy.

Mr Zuma should face the charges as outlined in the

indictment.”

28.

The Applicant contends that this statement is an inappropriate transgression of the separation of powers doctrine36 and reliance is placed on NDPP v Freedom Under Law (“Ful”) 2014 (4) SA 298 (SCA). This ground can be disposed of briefly:

28.1

In Ful, the SCA held that “the setting-aside of the withdrawal of the criminal charges … has the effect that the charges and the proceedings are automatically reinstated” and that the Court a quo went too far by directing, in addition, that the executive authorities should “ensure that the prosecution of these charges is enrolled and pursued without delay”.37

28.2

The DA in the present matter did not ask for the further relief sought in Ful, which the SCA refused to grant.

On the contrary, the relief

sought in the present matter, and the relief granted in the present matter, is the same as that granted by the SCA in Ful.

36 37

FA at pp.19 - 20, paras 29-30 Ful at para 51

20 28.3

In any event, to the extent that there could have been any doubt, the Full Bench clarified in its judgment on the application for leave to appeal that its orders did not go any further than what Ful permitted.38

29.

This does not imply that Mr Zuma may not raise an abuse of process argument again later. If the Full Bench’s judgment were to stand, the NPA would also not be able to prevent Mr Zuma from bringing the long threatened permanent stay application based on allegations of abuse of process. All that the DA contends is that, if the Full Bench decision is upheld, no further decision is required from the NPA on whether or not to charge Mr Zuma. The 2007 decision to charge him would revive. So much is clear from the Ful dictum referred to above.

H.

OTHER ALLEGED COMPELLING REASONS TO GRANT LEAVE

30.

The Applicant contends that there are other compelling reasons for this Court to grant leave, even in the absence of prospects of success, namely the public interest in the matter; the nature and severity of the misconduct perpetrated by Mr McCarthy; the Full Bench’s findings regarding the powers of the NPA; and the importance of the matter for Mr Zuma, both politically and personally.39

31.

I have dealt with these issues above, other than the public interest and the importance of the findings for Mr Zuma, personally and politically.

38 39

Judgment on Leave to Appeal, para 8 FA at pp. 37 - 38, paras 53 – 56.

21 32.

It is submitted that it is not in the public interest for yet another appeal to be heard in respect of the present matter. Whilst the public may have an interest in the matter, this is not a justification for granting leave to appeal. 40 Indeed, given the extraordinary delay in the finalisation of the review, caused largely by the number of interlocutory points taken by Mr Zuma and the NPA, it stands to reason that the public interest will be best served if an end is now brought to the proceedings. Justice delayed is after all justice denied.

33.

As far the importance of the matter for Mr Zuma is concerned, it is submitted that this should not operate decisively in the present matter. As noted above, Mr Zuma may be able to still pursue permanent stay proceedings. Further such challenges are not excluded but will have to be brought by way of a properly substantiated application to a court of law.

I.

CONCLUSION

34.

On a proper analysis, Mr Mpshe’s decision was clouded by emotion, unsubstantiated facts, inadequate investigation, confusion about his own role, a failure to appreciate the requirements of the authorities he relied upon and confusion about the effect of Mr McCarthy’s actions. This represented the very antithesis of a rational decision.

Based on the material before him,

Mr Mpshe could not rationally have reached the decision that this case involved an abuse of the kind which was so serious and so egregious, that it justified the extraordinary step of withdrawing the prosecution of Mr Zuma.

40

See the Judgment at p. 15, para 29

22 35.

In the circumstances, it is submitted that the application for leave to appeal to this Court should be dismissed with costs, such costs to include the costs of three counsel.

__________________________ ELZANNE MUREEN JONKER

I certify that the above signature is the true signature of the deponent and that she has acknowledged that she knows and understands the contents of this affidavit which affidavit was signed and sworn to before me in my presence at CAPE TOWN on this

day of AUGUST 2016, in accordance with Government Notice No.

R1258 dated 21 July 1972, as amended by Government Notice No R1648 dated 19 August 1977, as further amended by Government Notice No. R1428 dated 11 July 1980, and by Government Notice No R774 of 23 April 1982.

________________________ COMMISSIONER OF OATHS