Publication: Business Day Issued: Date: 2011-02-28 Reporter: Franny Rabkin

DA to challenge decision on dropped charges



Business Day

Date 2011-02-28
Reporter Franny Rabkin
Web Link


The Democratic Alliance’s (DA’s) challenge to the National Prosecuting Authority (NPA) decision to drop 16 criminal charges against President Jacob Zuma is to continue, despite a high court ruling against the opposition party last week.

The DA’s James Selfe said yesterday that the party would "most emphatically" appeal against a judgment that found it did not have legal standing to request information the NPA used to form a decision to withdraw charges against Mr Zuma.

At the time, Mr Zuma was facing 16 charges linked to the multibillion- rand government arms deal, including one of racketeering, one of money-laundering, two of corruption and 12 of fraud.

The judgment, which was handed down last week, found the DA did not have a "direct and personal interest" in the 2009 decision by former acting national director of public prosecutions Mokotedi Mpshe to drop the charges against Mr Zuma.

The DA had challenged Mr Mpshe’s decision, saying it was unconstitutional and unreasonable.

When the NPA refused to provide the DA with a record of how Mr Mpshe came to his decision, the DA went to court to compel it to do so. But the NPA hit back, saying that the DA, as a political party, did not have legal standing to take the decision to court on review.

"I agree," said North Gauteng High Court Judge Natvarlal Ranchod. He said that even though the constitution provided for a generous approach to legal standing, the Constitutional Court had not done away with the requirement that a person should have a "direct and personal" interest in order to bring a case before court.

"Whatever general interest (the DA) might have is no different from that of any member of the public in SA," Judge Ranchod said.

He said he did not think every member of the public in SA could demonstrate that the decision to discontinue the prosecution had "a direct effect on any of their rights".

The judgment was welcomed by the NPA. Spokesman Mthunzi Mhaga said "this judgment clearly illustrates our view that the matter should not have been dealt with before the courts in the first instance". "The NPA has a discretion whether or not to institute and conduct criminal proceedings or whether to discontinue them."

Without an appeal, the ruling would have meant the end of the DA’s case. But Mr Selfe said the DA would apply for leave to appeal because there was a "very, very important issue of constitutional principle at stake".

He said even if the DA did not have legal standing, it was "inconceivable" that a victim of crime did not. "And Richard Young is a victim of crime," he said.

Mr Young had also applied to enter the DA’s case as a "member of the public who would be affected by the crimes of political patronage and protection for financial reward allegedly committed by (Mr Zuma)". But in the same judgment, Judge Ranchod said that Mr Young too did not have legal standing.

Mr Selfe said that if this judgment was read "in conjunction" with a previous judgment, which dismissed the DA’s bid to set aside Mr Zuma’s decision to appoint Menzi Simelane as prosecutions chief, the court "seems to be saying that you can never review an appointment of a national director, nor a decision to discontinue a prosecution".

"If this is correct, I’m afraid we are fairly far down the track to being a banana republic," he said.

The charges against Mr Zuma were dropped ahead of the 2009 general election.

With acknowledgements to Wyndham Hartley and Business Day.

Oh, we went up North to seek some right
singing jolly wolly wonga all the way
but it seems the presiding officer was not that bright
singing jolly wolly wonga all the way


Fairly far, fairly far,
fairly far our scary Jay
for I'm a viewing Brisbiana to escape this fruity Zaniana
singing jolly wolly wonga all the way

Should I continue?

'Tis a pity about the floods, fires, earthquakes and tempest in Australasia.

With acknowledgement and abject apologies to Laura Ingalls Wilder and/or Dan Emmett.

Oh, I went down South for to see my Sal
singing Polly wolly doodle all the day
my Sal, she am a spunky gal
sing Polly wolly doodle all the day


Fare thee well, fare thee well,
fare thee well my fairy Fay
for I'm off to Lou'siana for to see my Susyanna
sing Polly wolly doodle all the day