The curious similarities between the legal grounds for NPA decision on Zuma and an obscure 2002 ruling

On Monday last week Acting National Director of Public Prosecution Moketedi Mpshe announced his decision to drop charges against ANC president Jacob Zuma. In his statement setting out the grounds for his decision Mpshe cited various (mainly foreign) legal rulings. He then quoted extracts from damning recordings of various cellphone conversations between former Scorpions boss Leonard McCarthy and others in late 2007. These had been presented by Zuma's lawyers to the NPA in the course of their representations. On the face of it, these seem to suggest that McCarthy had been acting as a kind of Mbeki-ite mole within the prosecuting authority.

Having read these extracts Mpshe rather eloquently concluded: "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 ‘so gravely wrong', ‘gross neglect of the elementary principles of fairness', ‘so unfair and wrong', ‘misusing or manipulating the process of the court.' If the conduct can be so categorized, it would be unconscionable for the trial to continue."

Quite predictably Mpshe's announcement was welcomed by the ANC and its alliance partners, and condemned by almost all opposition parties. Debate around the NPA's decision has focused mainly on the McCarthy recordings, their meaning and legality. Less attention has been paid to the legal basis underpinning Mpshe's decision to drop charges. A number of commentators have noted that the decision quotes - but effectively ignores - the recent Supreme Court of Appeal judgment which stated that the motive behind a prosecution is irrelevant.

There was always something odd about the section of Mpshe's statement which went under the heading ‘legal considerations.' It starts out adequately enough quoting the South African Constitution and then from the judgment in the case of the State versus Yengeni.

Things start going slightly awry when Mpshe quotes the following from the judgment of Smyth v Ushewekonze and Another 1998: "Section 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."

This judgment was issued by Gubbay CJ in the Harare High Court. The section referred to is from the old Zimbabwean constitution, not the South African one. But given that Gubbay cites South African precedent - and this judgment is cited by judges in South Africa - this does not seem too problematic.

However, things become properly curious as Mpshe proceeds to cite a string of rulings by the courts of the British Commonwealth. First there Ormrod LJ's judgment in R v Derby Crown Court, ex Parte Brooks is cited, then Mason CJ in Jago v District Court of New South Wales, then Lord Lowry in Connelly v DPP 1964; then Lord Steyn in Regina v Latif , then Lord Clyde in R v Martin, and finally Lord Hope in R v Hui Chi-Ming.

There are a number of questions that one could ask about this. Are, for instance, these rulings really relevant to Mpshe's decision to drop charges? This is not just because South Africa has its own common law and constitution, but because these judgments all discuss the considerations that the courts should weigh up when asked to stay proceedings. One would not know this from Mpshe's decision as most references to "the court" have been excised and replaced with phrases such as the "criminal justice process". However, the really interesting question is where this all comes from?

At this point it is useful to divert to a judgment handed down by Justice Conrad Seagroatt of the Hong Kong High Court on December 13 2002 (see here). One section is headed "The abuse of process - the perennial dilemma" and it - rather strikingly - cites all the British Commonwealth judgments that Mpshe's statement referred to. Even more strikingly the phrases quoted are almost all the same as well - give or take some self-serving summarising, truncation and rewriting by the NPA (see below).

Most strikingly of all are Justice Seagrott's concluding remarks. These seem to presage by some six-and-a-half years - almost to the word - the Mpshe comments quoted above. "It is against this evolved statement of broad principle" Seagrott wrote, "that the prosecution's failures and shortcomings with regard to disclosure must be seen and tested. Those for close consideration are best summed up by such expressions as ‘so gravely wrong', ‘gross neglect of the elementary principles of fairness', ‘so unfair and wrong', ‘misusing or manipulating the process of the court'. If those failures can properly be so categorized, are they such as to make it unconscionable that a re-trial should go forward?" (My emphasis)

It is rather remarkable how Mpshe's opinion of McCarthy so closely resembles that of Justice Seagrott's opinion of the prosecution in his case in Hong Kong. Their conclusions are rather similar as well. Just as Mpshe decided that "an intolerable abuse has occurred which compels a discontinuation of the prosecution", Seagrott ruled that "the failures constitute an intolerable abuse which compel intervention. Accordingly I order a permanent stay on these proceedings."

Incidentally, the Seagrott ruling was overturned on appeal. In its judgment the Court of Final Appeal noted, that the court must take account  "of the public expectation that persons charged with serious criminal offences will be brought to trial unless there is some powerful reason for not doing so."

With acknowledgements to James Myburgh and politicsweb.