African National Congress (ANC) president Jacob Zuma says if the state wants to review its decision on whether or not to prosecute him, it must first give him a chance to make representations, as laid down in the constitution.

Zuma lodged his heads of argument with the Supreme Court of Appeal yesterday, in opposing the national director of public prosecutions’ (NDPP’s) appeal against the September judgment by Judge Chris Nicholson, which set aside the NDPP’s decision to charge Zuma.

Nicholson also inferred in his judgment that former president Thabo Mbeki and former justice ministers Brigitte Mabandla and Penuell Maduna had interfered in the work of the National Prosecuting Authority (NPA). The appeal is set for Friday.

Zuma said Nicholson’s opinions did not constitute a judgment or order and could not be appealed on any ground.

The conflict between the NDPP and Zuma lay in the interpretation of section 179(5)(d) of the constitution.

The section states that “the national director of public prosecutions may *1 review a decision to prosecute or not to prosecute, after consulting the relevant director of public prosecutions and after taking representations within a period specified by the NDPP, from the … accused person, the complainant or any other person or party whom the national director considers to be relevant”.

Suspended prosecutions chief Vusi Pikoli first charged Zuma with corruption and fraud in 2005.

Zuma’s case was struck off the roll a year later and acting director Mokotedi Mpshe charged Zuma again in December last year.

“If an NDPP seeks to consider reversing any decision to prosecute or not, compliance with its consultative and hearing requirements must first be complied with,” Zuma’s advocates, led by Kemp J Kemp SC, said in heads of argument.

“The Pikoli and Mpshe decisions fall four square within those parameters.”

Kemp said the NDPP’s interpretation restricted the ambit of section 179(5)(d) to a reconsideration of decisions previously taken by a director of public prosecutions.

“Excluded would be decisions of prosecutors, deputy national directors, the NDPP and indeed any other NPA official in whom prosecuting authority is vested.”

Kemp said the NDPP was the apex official in a body that had a fixed practice and history of considering representations.

On Nicholson’s averments that there was political meddling in the work of the NPA, Kemp said Nicholson had decided that there appeared to be merit in Zuma’s complaints about political interference in his prosecution *3.

With acknowledgements to Ernest Mabuza and Business Day.
 

1. There is a single national prosecuting authority in the Republic, structured in terms of an Act of Parliament, and consisting of ­
   1. a National Director of Public Prosecutions, who is the head of the prosecuting authority, and is appointed by the President, as head of the national executive; and
   2. Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament.
2. The prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings.
3. National legislation must ensure that the Directors of Public Prosecutions ­
   1. are appropriately qualified; and
   2. are responsible for prosecutions in specific jurisdictions, subject to subsection (5).
4. National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.
5. The National Director of Public Prosecutions ­
   1. must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process;
   2. must issue policy directives which must be observed in the prosecution process;
   3. may intervene in the prosecution process when policy directives are not complied with; and
   4. may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:
      1. The accused person.
      2. The complainant.
      3. Any other person or party whom the National Director considers to be relevant.