The Democratic Alliance (DA) will be in different courts this week on two very significant issues.
The President’s failure to appoint a Commission of Inquiry into State Capture
On 14 October 2016, the former Public Protector, Adv Thuli Madonsela, published a report on state capture. As she was unable to chronicle the full extent of how much of the state had been captured by the Gupta family, she accordingly ordered remedial action, inter alia, as follows:
The President to appoint, within 30 days, a Commission of Inquiry headed by a judge solely selected by the Chief Justice who shall provide one name to the President.
In making this order, the Public Protector was guided by the President’s own statement, quoted in the Nkandla case, that “I could not have carried out the evaluation myself lest I be accused of being judge and jury in my own case.” She, therefore, ordered him to appoint a Commission of Inquiry, but without allowing him to choose the judge that would, in effect, enquire into his own role in state capture.
We know from the SABC and Nkandla judgments that the remedial action of the Public Protector is binding unless set aside by a court of law.
The President has lodged a review application in the Gauteng North High Court to review and set aside the whole report on state capture, which will be heard towards the end of October.
He has not, however, interdicted the remedial action, and in our submissions, he remains bound to carry out the remedial action ordered, including appointing the Commission of Inquiry.
What is particularly bizarre about the President’s action is that he continuously stresses that he will appoint a Commission of Inquiry into state capture, yet he advances all types of reasons why he is not prepared to give effect to the remedial action.
The DA is asking the Court to find that, much like was the case in Nkandla, the President is in breach of his constitutional duties by ignoring the remedial action.
The case will be heard as follows:
Date: Tuesday 12 and Wednesday 13 September 2017
Venue: North Gauteng High Court, Cnr Paul Kruger & Vermeulen Streets, Pretoria, Tshwane
The case of the discontinuation of the prosecution against Jacob Zuma – the Spy Tapes case
On 6 April 2009, the then Acting National Director of Public Prosecutions (NDPP), Adv Moketedi Mpshe, announced that the National Prosecuting Authority (NPA) would be discontinuing the prosecution of Jacob Zuma on 783 charges of corruption, fraud, money-laundering and racketeering.
The next day, the DA launched a review application in the Gauteng North High Court to review and set aside this decision on the grounds that it was manifestly irrational and therefore illegal.
When an applicant brings a review application, he or she is entitled to “the record of decision”, that is, the documents, memoranda and minutes that were before a decision-maker when he or she made that decision. Thus the DA asked for the record of the decision to discontinue the prosecution. The record included the interceptions of telephone conversations between key decision-makers at the NPA, which are colloquially referred to as “the Spy Tapes”.
The initial hearing took place early in June 2010. The lawyers for President Zuma and the NDPP argued that the DA did not have the locus standi (direct and substantial interest) in the case, and that, in any event, a decision to discontinue the prosecution was not reviewable. The Court initially concurred with this submission.
The DA took the case on appeal to the Supreme Court of Appeal (SCA). The SCA handed down judgment in April 2012. It found that the DA did have locus standi and that the decision was reviewable. It, therefore, found in the DA’s favour and ordered the NPA to hand over the record of decision, including the Spy Tapes within 14 days.
For nearly 18 months, the NPA refused to hand the information over, and in September 2013, the DA was forced once more to approach the Gauteng North High Court for an order to compel the NPA to hand over the records. The DA obtained the order, but Zuma and the NPA took the matter on appeal to the SCA. The SCA upheld the order of the Gauteng North High Court in the latter part of 2014, and the DA obtained the record of decision, including the Spy Tapes.
Further delays occurred, but the substantive review of the rationality of the decision was heard by a Full Bench of the Gauteng North High Court in the second half of 2016. The Full Bench unanimously found that the decision to discontinue the prosecution was irrational and illegal and set it aside, thus effectively re-instituting the charges. President Zuma and the NPA sought leave to appeal, but the Court refused.
The President and the NPA then petitioned the SCA for leave to appeal. It is this leave to appeal (and, if granted, the appeal itself) that will be heard by the SCA on Thursday 14 and Friday 15 September 2017, in Bloemfontein, nearly eight and a half years after we first filed papers in this case.
The case will be heard as follows:
Date: Thursday 14 and Friday 15 September 2017
Venue: Supreme Court of Appeal, Cnr President Brand St & Elizabeth St, Bloemfontein
The Chairperson of the DA’s Federal Executive, James Selfe MP, will be at both courts.