Unfortunately Xolela Mangcu gets it spectacularly and embarrassingly wrong when he states in Ditch the constitution or change your views (The Weekender, April 11-12) that Advocate Mokotedi Mpshe did exactly what the constitution enjoins him to do when he dropped the charges against Jacob Zuma.

Section 179 (5) (a) of the constitution states that the national director of public prosecutions “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", and that the national director “may intervene in the prosecution process when policy directives are not complied with".

The National Prosecuting Authority (NPA) and its head are therefore legally bound by the prosecution policy, and a decision to prosecute or not to prosecute an individual which is not taken in terms of this policy will be ultra vires and could therefore be set aside.

If the decision is taken by a lower official of the NPA, the national director can set it aside . If the national director acts in contravention of this policy, a court can declare his decision invalid as it would not have been taken lawfully. This requirement is a practical manifestation of the rule of law, a founding value of our constitution, set out in section 1 .

It fetters the discretion of the NPA and ensures that decisions by officials of the NPA are not taken in an arbitrary fashion or for an ulterior purpose (exactly what the NPA now stands accused of).

Section 179(5)(a) is therefore of extreme importance to protect us all from the abuse of power by the NPA and to ensure that organs of state act only in terms of the law.

Our Constitutional Court has found that the rule of law requires that organs of state should not have an unfettered discretion to make important decisions because then we have “the rule of men and not the rule of law". The problem is that Mpshe failed to mention this policy when he provided reasons for dropping the charges against Zuma.

In any event, the policy does not explicitly mention allegations ­ because these are still allegations not tested in court ­ of abuse of process as one of the factors than can be taken into account when deciding to drop charges in a case where the NPA believes a winnable case exists against the accused. The decision may therefore very well have been made illegally.

Section179 (4) of the constitution does state that “national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice".

The NPA Act therefore makes it a criminal offence to interfere with the work of the NPA.

However, the act does not empower the NPA to drop charges against an accused in a case where abuse of the process is alleged.

Uncharacteristically, Mangcu also employs a lazy and muddled analogy when he tries to equate the dropping of charges against Zuma with the Constitutional Court’s complaint against Judge President John Hlophe.

In the Hlophe case, the Constitutional Court judges complained to the appropriate body (the Judicial Service Commission) and made this complaint public. But it continued considering the case and rendered a judgment.

If the Hlophe analogy is properly used, it would require the NPA to continue with the prosecution while laying a criminal charge with the police against the alleged plotters and announcing this to the public.

If Mangcu wishes to argue that an abuse of process should allow the NPA to drop charges against an accused, his complaint should be directed to the national director of public prosecutions and the minister of justice for not having included this provision in the legally binding prosecution policy.

However, until the policy is changed and tabled in Parliament, there is a very strong legal argument to be made that the NPA’s decision to drop charges against Zuma was not taken in terms of the law so represents a direct attack on the rule of law and our constitution.

Prof Pierre de Vos
University of the Western Cape
 

With acknowledgements to Prof Pierre de Vos and Business Day.