THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case no: 288/11
Reportable

DEMOCRATIC ALLIANCE
1st Appellant
RICHARD MICHAEL MOBERLEY YOUNG
2nd Appellant
CCII SYSTEMS (PTY) LTD
3rd  Appellant

and

THE ACTING NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
1st Respondent
THE HEAD OF THE DIRECTORATE OF SPECIAL OPERATIONS
2nd Respondent
JACOB GEDLEYIHLEKISA ZUMA
3rd Respondent

Neutral citation:
Democratic Alliance v The Acting National Director of Public

Prosecutions  (288/11) [2012] ZASCA 15 (20 March 2012)

Bench

MPATI P, NAVSA, BOSIELO and TSHIQI JJA, and PLASKET AJA

Heard:

15 FEBRUARY 2012
Delivered:

20 MARCH 2012
Corrected:

Summary:

Decision by the office of the National Director of Public Prosecutions to
discontinue prosecution subject to constitutional review – the Democratic Alliance, a
registered political party, has locus standi to bring application to review – record of decision
is compellable.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from:
North Gauteng High Court (Pretoria) (Ranchod J sitting as court of

first instance).

In respect of all three issues between the first appellant and the first and third
respondents, the appeal is upheld with costs and the first and third respondents are
ordered jointly and severally to pay the first appellant‟s costs, including the costs
attendant on the employment of two counsel.
In respect of all the issues between the second and third appellants and the first and
third respondents the appeal is dismissed and the second and third appellants are
ordered to pay the first and third respondents‟ costs jointly and severally, including
the costs attendant on the employment of two counsel.
The order of the court below in respect of the application to intervene remains
unaltered, but the remainder is substituted as follows:
'1
The issues raised for separate adjudication by the respondents are determined as
follows:
1.1
The respondents‟ objection to the standing of the first applicant in the review
application is dismissed with costs including the costs attendant on the employment
of two counsel.
1.2
The first respondent‟s decision of 6 April 2009 to discontinue the prosecution of the
third respondent is held to be subject to review.
1.3
In the Rule 6(11) application the first respondent is directed to produce and lodge
with the Registrar of this Court the record of the decision. Such record shall exclude
the written representations made on behalf of the third respondent and any
consequent memorandum or report prepared in response thereto or oral
representations if the production thereof would breach any confidentiality attaching
to the representations (the reduced record). The reduced record shall consist of the

documents and materials relevant to the review, including the documents before the
first respondent when making the decision and any documents informing such
decision.
1.4
The first and third respondents are ordered to pay the applicant‟s costs jointly and
severally including the costs attendant on the employment of two counsel.‟
The substituted order set out in para 1.3 above is to be complied with within 14 days
of date of this judgment.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

NAVSA JA (MPATI P, BOSIELO and TSHIQI JJA, and PLASKET AJA concurring):

Background
[1] This appeal does not concern the merits of a decision taken on 6 April 2009, by the
first respondent, Mr Mokotedi Mpshe, the then Acting National Director of Public
Prosecutions, to discontinue a prosecution against the third respondent, Mr Jacob Zuma,
who is presently the President of the Republic of South Africa, on corruption charges.1
Instead, it is about the correctness of decisions in relation to two interlocutory matters and
points in limine, raised in the manner described in successive paragraphs. In National
Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) para 2 this Court described
litigation between the National Director of Public Prosecutions (NDPP) and Mr Zuma as
having had a „long and troubled history‟. Harms DP recorded that the law reports are
replete with judgments in that regard. A brief summary of that history as well as a
description of Mr Mpshe‟s initial decision, in 2007, to indict Mr Zuma and, of how Mr Zuma
became President of South Africa is set out in paras 3 to 7 of that judgment. I do not intend
to repeat it here. I now turn to describe how the present appeal arose.

1 In essence, Mr Zuma is said to have been accused of providing political patronage and protection in
exchange for financial reward.

[2] In April 2009 the Democratic Alliance (DA), a registered political party and the official
opposition in our national parliament, approached the North Gauteng High Court, by way of
an application, for an order reviewing, correcting and setting aside the decision to
discontinue the prosecution, and declaring the decision to be inconsistent with the
Constitution of the Republic of South Africa. Thereafter, the DA required the first and
second respondents to deliver to the registrar of the high court, in terms of Rule 53(1) of the
Uniform Rules of Court, the record on which the impugned decision was based, which
included representations made by Mr Zuma as to why the prosecution should be
discontinued.

[3] The prosecuting authorities refused to deliver the record, on the basis that it
contained the said representations, which had been made on a confidential and without
prejudice basis. They pointed out that Mr Zuma had declined to waive the conditions under
which he had submitted his representations. Furthermore, the office of the NDPP informed
the DA that it intended to contest the DA‟s locus standi in the review application and that it
would assert that a decision by the national prosecuting authority to discontinue a
prosecution was not reviewable. The DA was informed that these issues would be raised in
limine.

[4] This led to two interlocutory applications in the high court. In the first, brought in
terms of Uniform Rule 6(11),2 the DA sought an order directing the first respondent to
dispatch the record of proceedings on which the decision to discontinue the prosecution
was based, excluding the representations by Mr Zuma. In addition the DA also sought an
order directing that the prosecution authorities specify, by written notice, the documents or
material excluded from the record.

[5] In the second application, the second and third appellants, Mr Richard Young and
CCII Systems (Pty) Ltd (CCII), respectively, brought an application for leave to intervene as

2 Rule 6(11) provides:
„Notwithstanding the aforegoing subrules, interlocutory and other applications incidental to pending
proceedings may be brought on notice supported by such affidavits as the case may require and set down at
a time assigned by the registrar or as directed by a judge.‟

second and third applicants in the review application. CCII had been an unsuccessful
bidder in the arms procurement process. Mr Young is the sole and managing director of
CCII. In his affidavit, in the application to intervene, he recorded that the DA‟s locus standi
had been challenged by the first and third respondents and stated the following:
„[I]n order to obviate any possible difficulties in this regard, CCII Systems and I seek to intervene as
Second and Third Applicants. As will become apparent from what follows below, there can be no
serious dispute about our standing.‟

[6] Mr Young‟s complaint was that CCII had lost out on its bid in the arms procurement
process „in highly questionable circumstances‟. He claimed that CCII had been „deselected‟
in the category of acquisition of naval vessels. CCII is a supplier of specialised software
and computer systems for defence applications and its systems are intended to be a
central component of the combat capability of naval vessels. In his affidavit in the
application to intervene Mr Young points out that CCII was ousted as a bidder in favour of a
company associated with one that the national prosecuting authority had contemplated as a
co-accused in the corruption case against Mr Zuma. It appears from Mr Young‟s affidavit
that he had complained about CCII‟s deselection to the Special Investigation Unit, headed
by the then Judge Heath. He also complained to the office of the Auditor-General and
apparently to the Public Protector. According to Mr Young a multi-agency investigation of
the arms procurement process was established. That resulted in a report to Parliament,
which, inter alia, upheld his complaints concerning the conflict of interest on the part of Mr
Chippy Shaik, who was integral to the arms procurement process. A careful reading of Mr
Young‟s affidavit reveals that there is no direct accusation involving corruption on the part
of Mr Zuma in relation to the „deselection‟ of CCII in the arms procurement process.

[7] In resisting these two interlocutory applications the first and third respondents filed
answering affidavits in which they contested the DA‟s and the second and third appellants‟
locus standi in the review application. Predictably, issues that impinge on the merits of the
review application were raised on behalf of the respondents.

[8] The North Gauteng High Court (Ranchod J) rejected the submission on behalf of the
DA that the points in limine should be heard after all the affidavits had been filed in the
review application and should be decided at the commencement of that hearing. The high
court conflated the points in limine, which ought rightly to have been heard at the
commencement of the hearing of the review application, with the issues to be decided in
the interlocutory applications.

[9] Ranchod J accepted the submission, on behalf of the first respondent, that a political
party such as the DA did not have a direct and substantial interest in the decision to
discontinue the prosecution. Ranchod J reasoned as follows:
„It would be wrong on legal principle to contend that all members of the public in South Africa have
a direct and personal interest sufficient to clothe them with standing to seek the review and setting
aside of the NDPP‟s decision. I do not think every member of the public can demonstrate, on the
facts of this case, that the decision to discontinue the prosecution of President Zuma has a direct
effect on any of their rights – even in the extended sense in which the Constitutional Court
construed direct and personal interest in [Kruger v President of the Republic of South Africa &
others 2009 (1) SA 417 (CC) par 22 and 23].‟

[10] Much time and effort was wasted in the high court and before us, on debate about
whether a decision to discontinue a prosecution constititued administrative action in terms
of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The DA contended that
such a decision constituted administrative action in terms of PAJA. The relevant part of the
definition of administrative action in s 1 reads as follows:
„”administrative action” means any decision taken, or any failure to take a decision, by –
(a)      an organ of state, when –
(i)
exercising a power in terms of the Constitution or a provincial constitution; or
(ii)
exercising a public power or performing a public function in terms of any legislation; or
(b)       …
which adversely affects the rights of any person and which has a direct, external legal effect but
does not include –
(aa)     …
(bb)     …
(cc)     …

(dd)     …
(ee)     …
(ff)      a decision to institute or continue a prosecution.‟  (emphasis added.)

[11] Considering whether the DA had standing under PAJA, Ranchod J said the
following:
„PAJA has not altered the common law requirements for standing to review administrative action
(except to the extent that PAJA has imposed the additional requirement that a review applicant
must show that its rights have been materially and adversely affected by the impugned
administrative action).‟
The learned judge concluded that the DA had not met this requirement.

[12] The DA, in asserting its right to bring the review application, also relied on s 38 of
the Constitution which provides
„Enforcement of rights – Anyone listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights. The persons who may approach a court are–
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.‟

[13] Turning to the standing of the DA under these provisions of the Constitution,
Ranchod J stated the following:
„It is clear from the provisions of section 38 that it applies only in the case of an enforcement of
fundamental rights in the Bill of Rights.'
The high court rejected the DA‟s reliance on the equality provision in s 9 of the
Constitution,3 to the effect that if a powerful and influential figure such as Mr Zuma is shown
to have avoided prosecution by reason of such power and influence, it undermined the right
to equality of all citizens and that consequently, it had standing in terms of s 38 on this

3 Section 9(1) of the Constitution provides;
„(1)   Everyone is equal before the law and has the right to equal protection and benefit of the law.‟

account, to pursue the application for review. In dealing with that submission Ranchod J
said the following:
„The main application is not concerned with the enforcement of rights but the review of
administrative action on the grounds set out in section 6 of PAJA, or on the grounds of legality in
terms of section 1(c) of the Constitution.‟

[14] Ranchod J also rejected the submission that the right to just administrative action, as
contemplated in s 33 of the Constitution, was infringed. This was based on the judge‟s view
that a person bringing a review application must show that he or she is directly affected by
the impugned decision. Ranchod J took the view that the statement by the DA, that the
review brought into question whether the decision to discontinue the prosecution was in
compliance with the rule of law, was insufficient to clothe it with standing.

[15] In the last part of the dictum referred to at the end of the para 13 above, Ranchod J
had regard to section 1(c) of the Constitution, because of the DA‟s alternative ground of
review, namely, the supremacy of the Constitution and the rule of law. Section 1(c) of the
Constitution reads as follows:
„1.   Republic of South Africa – The Republic of South Africa is one, sovereign, democratic state
founded on the following values:
(a) …
(b) …
(c)   Supremacy of the constitution and the rule of law.‟

[16] Turning to the DA‟s contention that the decision to prosecute was liable to be set
aside on the basis of a contravention of the basic tenets of the rule of law, in that the
national prosecuting authority was obliged to follow legal prescripts and to act strictly in
accordance with the law and to treat all criminal suspects equally, the high court said the
following:
„For purposes of standing, the enforcement of section 1(c) of the Constitution is to be treated in the
same way as challenges to the constitutional validity of legislation brought on the basis that, as an
abstract and objective proposition, the legislation in question is inconsistent with the Constitution –
as opposed to challenges based on infringements or threatened infringements of rights in the Bill of

Rights. A person bringing such a constitutional challenge has to show that he or she is directly
affected by the unconstitutional legislation. This was confirmed by Ackermann J and Chaskalson P
in Ferreira v Levin and Others [1996 (1) SA 984 (CC)]. They both concluded that an applicant in
such circumstances has to prove that he or she is directly affected by the unconstitutional
legislation.‟

[17] Based on all the reasoning set out above the high court concluded that the DA had
not provided any sustainable basis for its contention that it had standing to bring the review
application.

[18] In dealing with the application by Mr Young and CCII to intervene, Ranchod J had
regard to Uniform Rule 12, which provides:
„Any person entitled to join as a plaintiff or liable to be joined as a defendant in any action may, on
notice to all parties, at any stage of the proceedings apply for leave to intervene as a plaintiff or a
defendant. The court may upon such application make such order, including any order as to costs,
and give such directions as to further procedure in the action as to it may seem meet.‟

[19] Ranchod J considered submissions on behalf of Mr Young and CCII that each had a
sufficient interest in the decision to discontinue the prosecution, in addition to the
overwhelming public interest in the outcome of the review application. The learned judge
reasoned that, as was the case with the DA, Mr Young and CCII must show that they have
a direct and substantial legal interest in the outcome of the review application in order to
succeed with their application to intervene. Ranchod J concluded that the entity whose
interests might potentially have been affected in relation to the arms procurement process
was CCII and that Mr Young‟s assertion that he was the original complainant had to be
rejected. Having regard to the factual assertions referred to in para 6 above and the
prosecution of a certain Mr Schabir Shaik, the court below said the following:
„Except for making the allegations at this level, there is no allegation which indicates the manner in
which the prosecution of third respondent would vindicate any rights of Mr Young or CCII, or how it
would directly affect their legal rights. Once this is the position, the decision to discontinue the
prosecution of third respondent could not directly affect any of their legal rights.‟

[20] Referring to the fact that CCII had reached a settlement with government agencies
in relation to its complaint concerning its arms procurement bid, the high court concluded
that the result was that CCII had no interest that could be affected by the decision to
discontinue the prosecution.

[21] Consequently, Ranchod J dismissed the application to compel production of the
reduced record of the decision to continue the prosecution as well as the application by Mr
Young and CCII to enter the fray as intervening parties. The DA and the parties seeking to
intervene were ordered to pay the costs of the litigation including the costs consequent
upon the employment of two counsel. It is against those orders and the conclusions
referred to above that the DA and the other two appellants appeal with leave of the court
below.

Conclusions
[22] The issues that arise for determination in this appeal are: the reviewability of the
decision to discontinue Mr Zuma‟s prosecution; whether the first respondent is required to
furnish the record of his decision; the standing of the DA to challenge the decision; and
whether Mr Young and CCII have standing as a prerequisite of their application to
intervene.

Reviewability
[23] The reviewability of a decision to discontinue a prosecution lies at the heart of this
appeal. It will be recalled that in correspondence the NDPP‟s office indicated that
reviewability of the decision in question and the question of standing were issues that it
intended to raise at the outset. Furthermore, instead of having those issues raised and
argued in respect of the main application – the review application – the court below enabled
the first and third respondents to fuse them with the issues raised in the interlocutory
applications.

[24] In order to adjudicate the reviewability question it is necessary at the outset to
reproduce part of the first respondent‟s answering affidavit to the DA‟s application to
compel production of the record. The relevant parts read as follows:
‟50.
Prosecutorial decisions are not reviewable for rationality under PAJA or the Constitution.
51.
It is correct that under the Constitution rationality is a minimum threshold requirement for all
exercises of public power. Prosecutorial decisions involve the exercise of public power.
52.
….
53.
…
54.
In the case of prosecutorial decisions, the legislature has excluded prosecutorial decisions
(including decisions not to prosecute) from the ambit of PAJA. This means that such
decisions cannot be reviewed on the ground of rationality under PAJA.
55.
It is not permissible or desirable in the circumstances to go behind the exclusion in PAJA
and to rely on rationality under the Constitution without challenging the constitutionality of
the exclusion from the ambit of PAJA of prosecutorial decisions. PAJA covers the ground
and the legislature has decided to exclude prosecutorial decisions from its ambit, including
decisions not to continue criminal prosecutions as submitted above. For the reasons that a
PAJA review is unavailable, a rationality review under the Constitution is also unavailable.
This will be addressed further in legal argument.
56.
There are other reasons why it would be inappropriate to subject prosecutorial decisions to
judicial review on the ground of rationality. Rationality review requires an assessment of the
presence or absence of a rational connection between the decision and the reasons given
for it, as well as a rational connection between the decision and the material properly placed
before the decision maker. To conduct the assessment a judicial officer must see and
consider the material that was placed before the decision maker. In cases of decisions to
discontinue prosecution after the accused makes representations, such material would
include representations made on a confidential and without prejudice basis. But such
information is privileged and cannot be disclosed to a Court and third parties. A rationality
review cannot be properly conducted in such circumstances. This is a justifiable limitation
under section 36 of the Constitution on the right to have the exercise of public power
reviewed for rationality. It serves an important governmental purpose. It facilitates full and
frank discussions and disclosures between the accused person and the prosecutor in the
interests of the proper administration of justice.‟

[25] In para 59 of his answering affidavit, Mr Mpshe stated that a decision to prosecute or
discontinue a prosecution could only ever be challenged in court on very narrow grounds,
such as bad faith.

[26] It appears that in the court below the first respondent did not persist in the contention
that a decision to discontinue a prosecution was not reviewable on the basis of a failure to
comply with the fundamental tenets of the rule of law. As indicated above Ranchod J
dismissed that challenge on the basis that neither the DA nor Mr Young nor CCII had
standing, because they had failed to show that they were directly affected by the decision.

[27] Whilst there appears to be some justification for the contention that the decision to
discontinue a prosecution is of the same genus as a decision to institute or continue a
prosecution, which is excluded from the definition of administrative action in terms of s 1(ff)
of PAJA, it is not necessary to finally decide that question. Before us it was conceded on
behalf of the first and third respondents that a decision to discontinue a prosecution was
subject to a rule of law review. That concession in my view was rightly made. As recently
as 1 December 2011, in Democratic Alliance v President of the Republic of South Africa &
others 2012 (1) SA 417 (SCA) this Court noted that the office of the NDPP was integral to
the rule of law and to our success as a democracy.4 In that case this Court stated
emphatically that the exercise of public power, even if it does not constitute administrative
action, must comply with the Constitution. The Constitutional Court has repeatedly
emphasised this point.

[28] In Affordable Medicines Trust & others v Minister of Health & others 2006 (3) SA 247
(CC) (2005 (6) BCLR 529) the Constitutional Court, with reference to its earlier decision in
Fedsure Life Assurance Ltd & others v Greater Johannesburg Transitional Metropolitan
Council & others 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458), stated the following (para
49):
„The exercise of public power must therefore comply with the Constitution, which is the supreme
law, and the doctrine of legality, which is part of that law. The doctrine of legality, which is an

4 Para 114.

incident of the rule of law, is one of the constitutional controls through which the exercise of public
power is regulated by the Constitution. It entails that both the Legislature and the Executive “are
constrained by the principle that they may exercise no power and perform no function beyond that
conferred upon them by law”. In this sense the Constitution entrenches the principle of legality and
provides the foundation for the control of public power.‟

[29] A most instructive case concerning constitutional control over the exercise of public
power is the decision of the Constitutional Court in Pharmaceutical Manufacturers
Association of South Africa & another: In Re Ex Parte President of the Republic of South
Africa & others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241). It is necessary to quote rather
extensively from that judgment (paras 37-45):

'The exercise of public power was regulated by the Courts through the judicial review of
legislative and executive action. This was done by applying constitutional principles of the common
law, including the supremacy of Parliament and the rule of law. The latter had a substantive as well
as a procedural content that gave rise to what Courts referred to as fundamental rights, but
because of the countervailing constitutional principle of the supremacy of Parliament, the
fundamental rights could be, and frequently were, eroded or excluded by legislation.

Judicial review served the purpose of enabling Courts, whilst recognising the supremacy of
Parliament, to place constraints upon the exercise of public power. It was a power asserted by the
English courts as part of their common-law jurisdiction. Our Courts did the same and the
development of administrative law in South Africa was much influenced by the developments in
England. As a result our Courts have frequently sought guidance from English law on this subject.

According to De Smith, Woolf and Jowell:
“[T]he standards applied by the courts in judicial review must ultimately be justified by
constitutional principles, which govern the proper exercise of public power in any democracy. This
is so irrespective of whether the principles are set out in a formal, written document. The
sovereignty or supremacy of Parliament is one such principle, which accords primacy to laws
enacted by the elected Legislature. The rule of law is another such principle of the greatest
importance. It acts as a constraint upon the exercise of all power. The scope of the rule of law is
broad. It has managed to justify – albeit not always explicitly – a great deal of the specific content of
judicial review, such as the requirements that laws as enacted by Parliament be faithfully executed
by officials; that orders of court should be obeyed; that individuals wishing to enforce the law should
have reasonable access to the courts; that no person should be condemned unheard and that

power should not be arbitrarily exercised. In addition, the rule of law embraces some internal
qualities of all public law: that it should be certain, that is ascertainable in advance so as to be
predictable and not retrospective in its operation; and that it be applied equally, without unjustifiable
differentiation.
Other constitutional principles are perhaps less clearly identified but nevertheless involve features
inherent in a democratic State. These include the requirements of political participation, equality of
treatment and freedom of expression.
A constitutional principle achieves practical effect as a constraint upon the exercise of all public
power. Where the principle is violated it is enforced by the courts which define and articulate its
precise content.”
To the same effect, Boulle, Harris and Hoexter state that:
“The basic justification for judicial review of administrative action originates in the Constitution. In
the constitutional State there are, by definition, legal limits to power, and the courts are bestowed
with judicial authority, which incorporates the competence to determine the legality of various
activities, including those of public authorities."

This method of controlling public power was not affected by the Constitutions of 1961 and
1983. The 1961 Constitution provided in specific terms that Parliament was supreme and that no
court had jurisdiction to enquire into or pronounce upon the validity of an Act of Parliament, other
than one relating to the entrenched language rights. The 1983 Constitution also entrenched the
supremacy of Parliament, though it made provision for courts to have jurisdiction in respect of
questions relating to the specific requirements of the Constitution. This, however, has been
fundamentally changed by our new constitutional order. We now have a detailed written
Constitution. It expressly rejects the doctrine of the supremacy of Parliament, but incorporates other
common-law constitutional principles and gives them greater substance than they previously had.
The rule of law is specifically declared to be one of the foundational values of the constitutional
order, fundament rights are identified and entrenched, and provision is made for the control of
public power, including judicial review of all legislation and conduct inconsistent with the
Constitution.

Powers that were previously regulated by the common law under the prerogative and the
principles developed by the courts to control the exercise of public power are now regulated by the
Constitution. Thus, in the President of the Republic of South African and Another v Hugo the power
of the President to pardon or reprieve offenders had to be dealt with under s 82(1) of the interim
Constitution, and not under the prerogative of the common law. In Fedsure, the question of legality
had to be dealt with under the Constitution and not under the common-law principle of ultra vires. In

Sarfu 3 the President‟s power to appoint a commission and the exercise of that power had to be
dealt with under s 84(2) of the 1996 Constitution and the doctrine of legality, and not under the
common-law principle of prerogative and administrative law.

In the Container Logistics case it was said:
“No doubt administrative action which is not in accordance with the behests of the empowering
legislation is unlawful and therefore unconstitutional, and action which does not meet the
requirements of natural justice is procedurally unfair and therefore equally unconstitutional. But,
although it is difficult to conceive of a case where the question of legality cannot ultimately be
reduced to a question of constitutionality, it does not follow that the common-law grounds for review
have ceased to exist. What is lawful and procedurally fair within the purview of s 24 is for the Courts
to decide and I have little doubt that, to the extent that there is no inconsistency with the
Constitution, the common-law grounds for review were intended to remain intact.”
…

Courts no longer have to claim space and push boundaries to find means of controlling
public power. That control is vested in them under the Constitution, which defines the role of the
courts, their powers in relation to other arms of government and the constraints subject to which
public power has to be exercised. Whereas previously constitutional law formed part of and was
developed consistently with the common law, the roles have been reversed. The written
Constitution articulates and gives effect to the governing principles of constitutional law. Even if the
common law constitutional principles continue to have application in matters not expressly dealt
with by the Constitution (and that need not be decided in this case), the Constitution is the supreme
law and the common law, insofar as it has any application, must be developed consistently with it
and subject to constitutional control.‟

[30] Importantly, the Constitutional Court in Pharmaceutical Manufacturers held that the
grounds of review articulated in the well-known case of Shidiack v Union Government
(Minister of the Interior) 1912 AD 642 at 651-652 are „consistent with the foundational
principle of the rule of law enshrined in our Constitution‟ (para 83) and that the rule of law
also requires rationality as a prerequisite for the validity of the exercise of all public power
(paras 85-86).

[31] Section 1(c) of the Constitution proclaims the supremacy of the Constitution and the
concomitant supremacy of the rule of law. In fulfilling the constitutional duty of testing the

exercise of public power against the Constitution, courts are protecting the very essence of
a constitutional democracy.5 Put simply, it means that each of the arms of government and
every citizen, institution or other recognised legal entity, are all bound by and equal before
the law. Put differently, it means that none of us is above the law. It is a concept that we, as
a nation, must cherish, nurture and protect. We must be intent on ensuring that it is
ingrained in the national psyche. It is our best guarantee against tyranny, now and in the
future.

[32] The office of the NDPP exercises public power and is subject to the constraints set
out in the authorities referred to above. Having made the concession that the decision to
discontinue the prosecution was subject to a rule of law review, it was nevertheless
submitted on behalf of the first and third respondents that such a review would be a narrow
one, on limited grounds. In light of the primary concession made on behalf of the
respondents, it is for present purposes not necessary to debate the extent to which a
decision to discontinue a prosecution is reviewable. That is a question for the high court -
the court seized with the application for the review. Counsel for Mr Zuma rightly conceded,
subject to a reservation concerning the question of standing on the part of the DA and the
intervening parties, that the arguments made on his behalf in respect of the reviewability of
the impugned decision were premature. In light of the concession made by the NDPP on
the question of reviewability, it is difficult to understand why it persisted in pursuing the
appeal on this aspect. It does not reflect well on the NDPP. I will, in due course, deal with
the high court‟s decision to conflate the preliminary points with the issues raised in the
application to compel production of the record and the application to intervene.

Production of the Record
[33] There was debate before us about what the value would be to the reviewing court of
a reduced record, namely, a record without Mr Zuma‟s representations. Concern was also
expressed on behalf of Mr Zuma that there might be material in the record of decision,
which might adversely affect his rights and to which he might rightly object. That concern
was met by an undertaking on behalf of the first respondent that, in the event of this Court

5 See DA v President of RSA 2012 (1) SA 417 (SCA) para 122.

altering the decision of the court below so as to order the production of the record of the
decision sought to be reviewed, the NDPP‟s office would inform Mr Zuma of its contents.
Questions involving the extent of the record of the decision and its value to the court
hearing the review application are speculative and premature. In the event of an order
compelling production of the record, the office of the NDPP will be obliged to make
available whatever was before Mr Mpshe when he made the decision to discontinue the
prosecution. It will then fall to the reviewing court to assess its value in answering the
questions posed in the review application. If the reduced record provides an incomplete
picture it might well have the effect of the NDPP being at risk of not being able to justify the
decision. This might be the result of Mr Zuma‟s decision not to waive the confidentiality of
the representations made by him. On the other hand, a reduced record might redound to
the benefit of the NDPP and Mr Zuma.

[34] Furthermore, there was debate about the applicability of Uniform Rule 53, the
relevant part of which provides as follows:
„(1)  Save where any law otherwise provides, all proceedings to bring under review the decision or
proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-
judicial or administrative functions shall be by way of notice of motion directed and delivered by the
party seeking to review such decision or proceedings to the magistrate, presiding officer or
chairman of the court, tribunal or board or to the officer, as the case may be, and to all other parties
affected-
(a)       calling upon such persons to show cause why such decision or proceedings should not be
reviewed and corrected or set aside, and
(b)       calling upon the magistrate, presiding officer, chairman or officer, as the case may be, to
dispatch, within fifteen days after receipt of the notice of motion to the registrar the record of
such proceedings sought to be corrected or set aside, together with such reasons as he is
by law required or desires to give or make, and to notify the applicant that he has done so.‟

[35] In its express wording Uniform Rule 53 appears to be confined to dealing with
decisions of particular institutions and officials performing certain categorised functions,
namely, judicial, quasi-judicial or administrative functions. It is worth noting that Uniform
Rule 53 was introduced at a time when judicial review was perhaps the most significant

method of controlling the exercise of public power. The then Supreme Court developed a
body of principles to control the exercise of public power. In Johannesburg Consolidated
Investment Co Ltd v Johannesburg Town Council 1903 TS 111 at 115, Innes CJ described
the common law power of review as follows:
„Whenever a public body has a duty imposed upon it by statute, and disregards important
provisions of the statute, or is guilty of gross irregularity or clear illegality in the performance of the
duty, this Court may be asked to review the proceedings complained of and set aside or correct
them. This is no special machinery created by the Legislature; it is a right inherent in the Court. . . .‟
This statement of the law is still apposite today except that the Constitution, not inherent
jurisdiction, is now the basis for review. It has hitherto never been suggested that Uniform
Rule 53 applied only in respect of a narrower form of review.

[36] However, much of the body of principles that was developed by our courts,
exercising their powers of review, came to be called Administrative Law.6 In the pre-
constitutional era when the now out-dated classification of functions doctrine was applied
there were recognised categories of administrative acts such as legislative, judicial, quasi-
judicial and purely administrative acts,7 which categories are largely repeated in Uniform
Rule 53. Within the administrative law sphere there were recognised public bodies or
institutions and officers that were subject to administrative review. That too is mirrored in
Uniform Rule 53. Attorneys-General – the predecessors of the NDPP – were clearly officers
for purposes of Uniform Rule 538 and their decisions would either have been „quasi-judicial‟
or „administrative‟.9

[37] In the constitutional era courts are clearly empowered beyond the confines of PAJA
to scrutinise the exercise of public power for compliance with constitutional prescripts. That
much is clear from the Constitutional Court judgments set out above. It can hardly be
argued that, in an era of greater transparency, accountability and access to information, a
record of decision related to the exercise of public power that can be reviewed should not

6 In this regard see Cora Hoexter Administrative Law in South Africa (2 ed) (2012) at pp 13-15 and the dicta
from the Pharmaceutical case set out in para 28 above.
7 See Joubert (ed) The Law of South Africa (1st Reissue) Vol 1 paras 59-73.
8 See Baxter Administrative Law (1984) at 333.
9 See Baxter op cit at 344-348.

be made available, whether in terms of Rule 53 or by courts exercising their inherent power
to regulate their own process.10 Without the record a court cannot perform its
constitutionally entrenched review function, with the result that a litigant‟s right in terms of s
34 of the Constitution to have a justiciable dispute decided in a fair public hearing before a
court with all the issues being ventilated, would be infringed. The DA, in its application to
compel discovery, has merely asked for an order directing the office of the NDPP to
despatch within such time as the court may prescribe the record of proceedings relating to
the decision to discontinue the prosecution, excluding the written representations made on
behalf of Mr Zuma to the office of the NDPP. Subject to the question of standing which is
dealt with next I can see no bar to such an order being made.

Locus standi
[38] It is necessary at the outset to say something about our law in relation to the
question of standing. During the time of an oppressive regime lawyers had to fight for
space in order to challenge and limit human rights abuses. At a time when a Parliament
representing the minority of the population was regarded as supreme, and when there was
restricted space within which to assert the rights that are now taken for granted, courts
were willing to adopt a more liberal approach to standing when there was a threat to rights
that even an oppressive government was forced to recognise as fundamental in a civilised
society. In Wood & others v Ondangwa Tribal Authority & another 1975 (2) SA 294 (A) this
Court, in dealing with the interdict de libero homine exhibendo (the equivalent of the
English writ of habeas corpus) and our law‟s then more restrictive approach to locus standi,
said the following at 310D-H:
„Although the position is that in Roman-Dutch law no private person can proceed by a popular
action as such, it is clear that the interdict de libero homine exhibendo is part of our law, and it only
remains to be considered at whose request a Court will issue the interdict. Basically, the cause of
action is sui generis because not only was the right to freedom protected by it but “it is set in motion
as a matter of duty”. In this respect it would appear to be distinguishable from any of the other
actiones populares. Voet, 43.29, says that in the favour shown to freedom the interdict is granted to

10 Section 173 of the Constitution reads as follows:
„Inherent power- The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent
power to protect and regulate their own process, and to develop the common law, taking into account the
interests of justice.‟

anyone among the people (cuivis ex populo). That indicates, in my view, that he had in mind the
actio popularis. Nevertheless, I think it follows, from what I have said above, that although the
actiones populares generally have become obsolete in the sense that a person is not entitled “to
protect the rights of the public”, or “champion the cause of the people” it does not mean that when
the liberty of a person is at stake, the interest of the person who applies for the interdict de libero
homine exhibendo should be narrowly construed.  On the contrary, in my view it should be widely
construed because illegal deprivation of liberty is a threat to the very foundation of a society based
on law and order.‟ (emphasis added.)

[39] It is true that in appropriate circumstances a person was allowed to act on behalf of
a detained person because the latter could not act for him or herself. However, the liberty of
an individual, was already regarded in Roman times as a right of the highest value and it is
the importance of that issue that motivated courts to lean towards a more liberal approach
to standing.11

[40] We have come a long way since our troubled history, referred to in the briefest terms
in para 35 above. In Kruger v President of Republic of South Africa & others 2009 (1) SA
417 (CC) the Constitutional Court held, in relation to the standing of an attorney to
challenge the constitutionality of certain proclamations (para 25):
„As an attorney in a specialist personal injury legal firm who works regularly in this field, Mr Kruger
has a direct and professional interest in the validity of the proclamations. A legal practitioner is an
officer of the court. Where the practitioner can establish both that a proclamation is of direct and
central importance to the field in which he or she operates, and that it is in the interest of the
administration of justice that the validity of that proclamation be determined by a court, that
practitioner may approach a court to challenge the validity of such a proclamation. In this case Mr
Kruger has shown that he is a personal injury attorney and that the validity of the proclamations is
of central importance to his field of practice. Moreover, he has established that significant legal
uncertainty has arisen because of the contents of the First Proclamation and the publication of the
Second Proclamation. The effect of this uncertainty is clearly adverse to the proper administration
of justice. A personal injury attorney must be able to understand and engage with the legislative
scheme on which he or she and his or her clients rely in order to seek compensation. The

11 See Wood v Ondangwa op cit at 311E-H.

uncertainty created by the issue of the two proclamations and their effect on Mr Kruger‟s ability to
manage his clients‟ affairs are reason enough to grant standing to the applicant.‟

[41] In Kruger the Constitutional Court left open the question whether the attorney was
acting or could act in the public interest.12

[42] In Albutt v Centre for the Study of Violence and Reconciliation & others 2010 (3) SA
293 (CC), Ngcobo CJ accepted that the non-governmental organisations that had brought
the challenge to the granting of amnesty to various prisoners had standing in their own
interest and in the public interest. The court stated (paras 33-34):

„The concession that the NGOs have standing was properly made. Our Constitution adopts
a broad approach to standing, in particular, when it comes to the violation of rights in the Bill of
Rights. This is apparent from the standing accorded to persons who act in the public interest. This
ground is much broader than the other grounds of standing contained in s 38. The NGOs have
standing on at least two grounds.

First, they are litigating in the public interest under s 38(d) of the Constitution. The NGOs
contend that the exclusion of victims from participation in the special dispensation process violates
the Constitution, in particular, the rule of law. They submit that, as civic organisations concerned
with victims of political violence, they have an interest in ensuring compliance with the Constitution
and the rule of law. Second, they are litigating in the interest of the victims under s 38(c). The
victims whose interests the NGOs represent were unable to seek relief themselves because they
were unaware that applications for pardons affecting them were being considered. The process
followed by the President made no provision for the victims to be made aware of the applications for
pardons, not to be given the opportunity to make representations.‟

[43] As pointed out earlier in this judgment, the DA is a registered political party active in
the national parliament. Its federal constitution sets out its political vision, „of a prosperous,
open opportunity society that is uniquely South African: in which every person is free,
secure and equal before the law …‟. The DA‟s constitution recognises that:

12 See para 27.

„South Africa‟s constitution is the only foundation on which an Open Opportunity Society can be
built because it recognises that every person is equal in dignity and worth and guarantees the
freedom of each individual.13
The rights enshrined in the constitution must be defended and promoted in order to protect the
people of South Africa from the concentration and abuse of power.‟

[44] It was accepted on behalf of the third respondent that all political parties participating
in the National Parliament can be taken to subscribe to constitutional principles. Section 48
of the Constitution provides that before members of the National Assembly begin to
perform their functions they must swear or affirm faithfulness to the Republic and
obedience to the Constitution. All political parties participating in parliament must
necessarily have an interest in ensuring that public power is exercised in accordance with
constitutional and legal prescripts and that the rule of law is upheld. They represent
constituents that collectively make up the electorate. They effectively represent the public in
parliament. It is in the public interest and of direct concern to political parties participating in
parliament that an institution such as the National Prosecuting Authority (NPA),  acts in
accordance with constitutional and legal prescripts. It can hardly be argued that citizenry in
general would be concerned to ensure that there was no favouritism in decisions relating to
prosecutions. Few members of political parties or members of the public have the ability,
resources or inclination to bring a review application of the kind under discussion.

[45] It is of fundamental importance to our democracy that an institution such as the
NPA, which is integral to the rule of law, acts in a manner consistent with constitutional
prescripts and within its powers, as set out in the National Prosecuting Authority Act 32 of
1998. Certainly the membership of the DA can rightly be expected to hold the party they
support to the foundational values espoused in the DA‟s constitution and to expect the DA
to do whatever is in its power, including litigating, to foster and promote the rule of law. In
this regard see Justice Alliance of South Africa & others v President of the Republic of
South Africa & others 2011 (5) SA 388 (CC) para 17 and the recent decision of the full
court in Bio Energy Afrika Free State (Edms) Bpk v Freedom Front Plus and Freedom Front

13 Clause 1.2 and also 1.3 of the DA‟s Constitution.

Plus v Moqhaka Local Municipality & others 2012 (2) SA 88 (FB) paras 15-17.  It clearly is
in the public interest that the issues raised in the review application be adjudicated and, in
my view, on the papers before us, it cannot seriously be contended that the DA is not
acting, genuinely and in good faith, in the public interest. See Freedom Under Law v Acting
Chairperson: Judicial Service Commission & others 2001 (3) SA 549 (SCA) para 21.The
question whether, in making the decision to discontinue the prosecution of Mr Zuma, the
NPA had acted in accordance with the law or had wrongly and unlawfully succumbed to
political power and influence, as alleged by the DA, is a matter for decision in the review
application after all the papers have been filed. Presently, it follows that the DA has
standing to act in its own interests, as well as in the public interest, and is entitled to pursue
that application to its conclusion.

[46] Not so with the parties seeking to intervene. It is difficult to discern with any degree
of precision, or at all, the ambit of their complaint against Mr Zuma. It is even more difficult
to establish that a complaint, however vague, was lodged with the NPA itself. We were not
pointed to any part of the record from which it appears which of the two parties seeking to
intervene had in fact lodged a complaint with the NPA. There is much force in the
submission that, having regard to the litigation between CCII, which was a bidding party,
and government agencies and the subsequent monetary settlement, the basis of which has
not been disclosed, it cannot be said that there is any protectable interest that CCII could
advance in the review application. The motivation for entering the fray is in my view clear
from what is stated by Mr Young himself, namely, that which, in modern terminology, is
referred to as a „fall-back position‟ – in the event of the DA being held not to have locus
standi. In my view the conclusion of the court below in respect of the standing of the parties
seeking to intervene is correct. It follows that the application to intervene must fail.

[47] I turn to deal with the submission on behalf of the first and third respondents that
allowing too lenient an approach to standing would have a disastrous impact on
prosecution services, in that it would lead to a flood of challenges to prosecutorial
decisions, which would, in turn, cause the NPA to virtually grind to a halt. Courts are no
strangers to floodgates arguments. First, courts will be astute to ensure that those asserting

a right to challenge prosecutorial decisions have in fact provided a legally recognised basis
for doing so. Secondly, the floodgates argument is not borne out by experience but, in any
event, it is apposite to call to mind what was stated in Wildlife Society of Southern Africa v
Minister of Environmental Affairs and Tourism of the RSA 1996 (3) SA 1095 (TkS) at
1106D-G:
„One of the principal objections often raised against the adoption of a more flexible approach to the
problem of locus standi is that the floodgates will thereby be opened, giving rise to an uncontrollable
torrent of litigation. It is well, however, to bear in mind a remark made by Mr Justice Kirby, President
of the New South Wales Court of Appeal, in the course of an address at the Tenth Anniversary
Conference of the Legal Resources Centre, namely that it may sometimes be necessary to open
the floodgates in order to irrigate the arid ground below them. I am not persuaded by the argument
that to afford locus standi to a body such as first applicant in circumstances such as these would be
to open the floodgates to a torrent of frivolous or vexatious litigation against the State by cranks or
busybodies. Neither am I persuaded, given the exorbitant costs of Supreme Court litigation, that
should the law be so adapted cranks and busybodies would indeed flood the courts with vexatious
or frivolous applications against the State. Should they be tempted to do so, I have no doubt that
appropriate order of costs would soon inhibit their litigious ardour.‟
Thirdly, as was pointed out by Budlender, „if the cases are well-founded, there can be no
objection to a flood of people trying to achieve justice‟ („The Accessibility of Administrative
Justice‟ 1993 Acta Juridica 128 at 132).

Hearing the point in limine together with the two interlocutory applications
[48] In Bader & another v Weston & another 1967 (1) SA 134 (C) Corbett J said the
following (at 136E-H):
„It seems to me that, generally speaking, our application procedure requires a respondent, who
wishes to oppose an application on the merits, to place his case on the merits before the Court by
way of affidavit within the normal time limits and in accordance with the normal procedures
prescribed by the Rules of Court. Having done so, it is also open to him to take the preliminary point
that (in this case) the petition fails to disclose a cause of action and this will often be a convenient
procedure where material disputes of fact have arisen which cannot be resolved without recourse to
the hearing of oral evidence. On the other hand, I do not think that normally it is proper for such a
respondent not to file opposing affidavits but merely to take the preliminary point. I say “normally”
because situations may arise where this procedure is unexceptionable. For example, a respondent,

who is suddenly and without much notice confronted with a complex application and who would
normally be entitled to a substantial postponement to enable him to frame opposing affidavits, might
well be permitted there and then to take such a preliminary point. Generally speaking, however,
where a respondent has had adequate time to prepare his affidavits, he should not omit to prepare
and file his opposing affidavits and merely take the preliminary objection.‟

[49] Generally, courts should be slow to allow parties to engage in piecemeal litigation,
with attendant delays. Put differently, courts should be intent on obviating prolonged
litigation. This case has shown precisely how undesirable for the administration of justice
to-ing and fro-ing between the high court and this Court over a long period of time, without
the merits being finally adjudicated, can be. Courts should be circumspect when
suggestions are made about the procedure to be followed on the basis that it might shorten
rather than lengthen litigation.

Costs
[50] It is necessary to deal with the submission on behalf of the intervening parties in
respect of costs. It was submitted that since they had sought to vindicate constitutional
rights they were entitled to be treated differently from commercial litigants on the basis of
what is set out in the judgment of the Constitutional Court in Biowatch Trust v Registrar,
Genetic Resources 2009 (6) SA 232 (CC) and not be ordered as an unsuccessful party to
pay the costs of the other litigants. At para 20 of Biowatch the following appears:
„Nevertheless, even allowing for the invaluable role played by public-interest groups in our
constitutional democracy, courts should not use costs awards to indicate their approval or
disapproval of the specific work done by or on behalf of particular parties claiming their
constitutional rights. It bears repeating that what matters is not the nature of the parties or the
causes they advance but the character of the litigation and their conduct in pursuit of it. This means
paying due regard to whether it has been undertaken to assert constitutional rights and whether
there has been impropriety in the manner in which the litigation has been undertaken. Thus, a party
seeking to protect its rights should not be treated unfavourably as a litigant simply because it is
armed with a large litigation war-chest, or asserting commercial, property or privacy rights against
poor people or the State. At the same time public-interest groups should not be tempted to lower
their ethical or professional standards in pursuit of a cause. As the judicial oath of office affirms,
judges must administer justice to all alike, without fear, favour or prejudice.‟

[51] Having regard to the description, set out above, of the nature of and manner in
which the parties seeking to intervene entered the fray, they are, in my view, not entitled to
the protection afforded litigants by Biowatch.

[52] The first and third respondents were agreed that in the event that we were inclined
to compel the production of the record that it should be in the terms set out in the order that
appears hereafter. For all the reasons stated above the following order is made:
In respect of all three issues between the first appellant and the first and third
respondents, the appeal is upheld with costs and the first and third respondents are
ordered jointly and severally to pay the first appellant‟s costs, including the costs
attendant on the employment of two counsel.
In respect of all the issues between the second and third appellants and the first and
third respondents the appeal is dismissed and the second and third appellants are
ordered to pay the first and third respondents‟ costs jointly and severally, including
the costs attendant on the employment of two counsel.
The order of the court below in respect of the application to intervene remains
unaltered, but the remainder is substituted as follows:
'1
The issues raised for separate adjudication by the respondents are determined as
follows:
1.1
The respondents‟ objection to the standing of the first applicant in the review
application is dismissed with costs including the costs attendant on the employment
of two counsel.
1.2
The first respondent‟s decision of 6 April 2009 to discontinue the prosecution of the
third respondent is held to be subject to review.
1.3
In the Rule 6(11) application the first respondent is directed to produce and lodge
with the Registrar of this Court the record of the decision. Such record shall exclude
the written representations made on behalf of the third respondent and any
consequent memorandum or report prepared in response thereto or oral
representations if the production thereof would breach any confidentiality attaching
to the representations (the reduced record). The reduced record shall consist of the

documents and materials relevant to the review, including the documents before the
first respondent when making the decision and any documents informing such
decision.
1.4
The first and third respondents are ordered to pay the applicant‟s costs jointly and
severally including the costs attendant on the employment of two counsel.‟
The substituted order set out in para 1.3 above is to be complied with within 14 days
of date of this judgment.

_________________
M S NAVSA
JUDGE OF APPEAL

APPEARANCES:

For Appellants:

S P Ronsenberg SC

H J De Waal

Instructed by:

Minde Schapiro & Smith Inc

c/o Edelstein-Bosman Inc

Pretoria

Symington & De Kok

Bloemfontein

For 1st & 2nd Respondents:

P Kennedy SC

N H Maenetje

Instructed by:

The State Attorney

Pretoria

The State Attorney

Bloemfontein

For 3rd Respondent:                           K J Kemp SC
T Khuzwayo
L K Olsen

Instructed by:

Hulley & Associates Inc

c/o F Vally Attorneys

Pretoria

Honey & Partners Inc

Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

20 March 2012

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Democratic Alliance v The Acting National Director of Public Prosecutions
(288/11) [2012] ZASCA 15 (20 March 2012)

Media Statement

Today the Supreme Court of Appeal (SCA) upheld an appeal by the first appellant, the
Democratic Alliance (DA), against a judgment of the North Gauteng High Court (Pretoria), in
terms of which that court held that the DA had no locus standi to review a decision by the first
respondent, the Acting National Director of Public Prosecutions (Acting NDPP) to discontinue
a prosecution against the third respondent, the President of the Republic of South Africa, Mr
Jacob Zuma. The North Gauteng High Court had also consequently refused an application by
the DA for an order compelling the record of the decision to discontinue the prosecution.

The SCA however dismissed an appeal by the second and third appellants Mr Richard Young
and CCII Systems (Pty) Ltd (CCII) against a finding by the North Gauteng High Court that
they had no locus standi in the review application.

The SCA dealt first, with the question whether a decision to discontinue a prosecution was
reviewable and considered the submissions on behalf of the Acting NDPP that a review could
only be brought on very narrow grounds, such as bad faith. The SCA re-emphasised that the
exercise of public power was regulated by the courts through judicial review. It re-iterated that
in a constitutional state there are by definition legal limits to power, and that the courts are
bestowed with authority to determine the legality of various activities including those of public
authorities. The SCA said the following:

‘Section 1(c) of the Constitution proclaims the supremacy of the Constitution and the concomitant
supremacy of the rule of law. In fulfilling the constitutional duty of testing the exercise of public power
against the Constitution, courts are protecting the very essence of a constitutional democracy.1 Put
simply, it means that each of the arms of government and every citizen, institution or other recognised
legal entity, are all bound by and equal before the law. Put differently, it means that none of us is above
the law. It is a concept that we, as a nation, must cherish, nurture and protect. We must be intent on
ensuring that it is ingrained in the national psyche. It is our best guarantee against tyranny, now and in
the future.’

The SCA recorded that it had been accepted by the first and third respondents that the office
of the NDPP exercises public power and that the decision to discontinue a prosecution was
subject to a rule of law review. It stated that in light of the concession it was difficult to
understand why the NDPP persisted in pursuing the appeal on this aspect and that it did not
reflect well on the NDPP.

Having held that the decision to discontinue a prosecution was indeed reviewable, the SCA
considered the submission that a reduced record of the decision sought by the DA would be
of little value. It is necessary to note that Mr Zuma had made representations to the Acting
NDPP which had been done without prejudice and on a confidential basis and he had refused
to waive the conditions under which those representations had been made. Thus the DA
sought a reduced record, that is, a record without the representations. The SCA stated that
questions involving the extent of the record and its value to the court hearing the review
application are speculative and premature. It said the following:
‘In the event of an order compelling production of the record, the office of the NDPP will be obliged to
make available whatever was before Mr Mpshe when he made the decision to discontinue the
prosecution. It will then fall to the reviewing court to assess its value in answering the questions posed in
the review application. If the reduced record provides an incomplete picture it might well have the effect
of the NDPP being at risk of not being able to justify the decision. This might be the result of Mr Zuma’s
decision not to waive the confidentiality of the representations made by him. On the other hand, a
reduced record might redound to the benefit of the NDPP and Mr Zuma.’

The SCA went on to state:
‘Without the record a court cannot perform its constitutionally entrenched review function, with the result
that a litigant’s right in terms of s 34 of the Constitution to have a justiciable dispute decided in a fair
public hearing before a court with all the issues being ventilated, would be infringed. The DA, in its
application to compel discovery, has merely asked for an order directing the office of the NDPP to
despatch within such time as the court may prescribe the record of proceedings relating to the decision
to discontinue the prosecution, excluding the written representations made on behalf of Mr Zuma to the
office of the NDPP. Subject to the question of standing which is dealt with next I can see no bar to such
an order being made.’

1 See DA v President of RSA 2012 (1) SA 417 (SCA) para 122.

In respect of the DA’s locus standi, the SCA had regard to the fact that the DA is a registered
political party active in the national parliament and that its constitution committed it to the
values enshrined in our Constitution. The SCA stated the following:
‘It was accepted on behalf of the third respondent that all political parties participating in the National
Parliament can be taken to subscribe to constitutional principles. Section 48 of the Constitution provides
that before members of the National Assembly begin to perform their functions they must swear or affirm
faithfulness to the Republic and obedience to the Constitution. All political parties participating in
parliament must necessarily have an interest in ensuring that pubic power is exercised in accordance
with constitutional and legal prescripts and that the rule of law is upheld. They represent constituents
that collectively make up the electorate. They effectively represent the public in parliament. It is in the
public interest and of direct concern to political parties participating in parliament that an institution such
as the National Prosecuting Authority (NPA), acts in accordance with constitutional and legal prescripts.
It can hardly be argued that citizenry in general would be concerned to ensure that there was no
favouritism in decisions relating to prosecutions. Few members of political parties or members of the
public have the ability, resources or inclination to bring a review application of the kind under discussion.

It is of fundamental importance to our democracy that an institution such as the NPA, which is
integral to the rule of law, acts in a manner consistent with constitutional prescripts and within its
powers, as set out in the National Prosecuting Authority Act 32 of 1998. Certainly the membership of the
DA can rightly be expected to hold the party they support to the foundational values espoused in the
DA’s constitution and to expect the DA to do whatever is in its power, including litigating, to foster and
promote the rule of law. In this regard see Justice Alliance of South Africa & others v President of the
Republic of South Africa & others 2011 (5) SA 388 (CC) para 17 and the recent decision of the full court
in Bio Energy Afrika Free State (Edms) Bpk v Freedom Front Plus and Freedom Front Plus v Moqhaka
Local Municipality & others 2012 (2) SA 88 (FB) paras 15-17.  It clearly is in the public interest that the
issues raised in the review application be adjudicated and, in my view, on the papers before us, it
cannot seriously be contended that the DA is not acting, genuinely and in good faith, in the public
interest. See Freedom Under Law v Acting Chairperson: Judicial Service Commission & others 2001 (3)
SA 549 (SCA) para 21.The question whether, in making the decision to discontinue the prosecution of
Mr Zuma, the NPA had acted in accordance with the law or had wrongly and unlawfully succumbed to
political power and influence, as alleged by the DA, is a matter for decision in the review application
after all the papers have been filed. Presently, it follows that the DA has standing to act in its own
interests, as well as in the public interest, and is entitled to pursue that application to its conclusion.’

Dealing with the appeal by the second and third appellants against a refusal by the North
Gauteng High Court of their application to intervene in the review application on the basis of
their lack of locus standi the SCA stated the following:
‘It is difficult to discern with any degree of precision, or at all, the ambit of their complaint against Mr
Zuma. It is even more difficult to establish that a complaint, however vague, was lodged with the NPA
itself. We were not pointed to any part of the record from which it appears which of the two parties
seeking to intervene had in fact lodged a complaint with the NPA. There is much force in the submission
that, having regard to the litigation between CCII, which was a bidding party, and government agencies
and the subsequent monetary settlement, the basis of which has not been disclosed, it cannot be said
that there is any protectable interest that CCII could advance in the review application. The motivation

for entering the fray is in my view clear from what is stated by Mr Young himself, namely, that which, in
modern terminology, is referred to as a ‘fall-back position’ – in the event of the DA being held not to
have locus standi. In my view the conclusion of the court below in respect of the standing of the parties
seeking to intervene is correct. It follows that the application to intervene must fail.’

The SCA dealt with the submission on behalf of the first and third respondents that allowing
too lenient an approach to questions of locus standi would have a disastrous impact on
prosecution services in that it would lead to a flood of challenges to prosecutorial decisions,
which could, in turn, cause the national prosecuting authority to virtually grind to a halt. The
SCA stated that courts are no strangers to floodgates arguments and that courts would be
astute to ensure that those asserting a right to challenge prosecutorial decisions have in fact
provided a legally recognised basis for doing so.

The SCA made the following order:
‘1
In respect of all three issues between the first appellant and the first and third respondents, the
appeal is upheld with costs and the first and third respondents are ordered jointly and severally
to pay the first appellant’s costs, including the costs attendant on the employment of two
counsel.
In respect of all the issues between the second and third appellants and the first and third
respondents the appeal is dismissed and the second and third appellants are ordered to pay
the first and third respondents’ costs jointly and severally, including the costs attendant on the
employment of two counsel.
The order of the court below in respect of the application to intervene remains unaltered, but
the remainder is substituted as follows:
'1
The issues raised for separate adjudication by the respondents are determined as follows:
1.1
The respondents’ objection to the standing of the first applicant in the review application is
dismissed with costs including the costs attendant on the employment of two counsel.
1.2
The first respondent’s decision of 6 April 2009 to discontinue the prosecution of the third
respondent is held to be subject to review.
1.3
In the Rule 6(11) application the first respondent is directed to produce and lodge with the
Registrar of this Court the record of the decision. Such record shall exclude the written
representations made on behalf of the third respondent and any consequent memorandum or
report prepared in response thereto or oral representations if the production thereof would
breach any confidentiality attaching to the representations (the reduced record). The reduced
record shall consist of the documents and materials relevant to the review, including the
documents before the first respondent when making the decision and any documents informing
such decision.
1.4
The first and third respondents are ordered to pay the applicant’s costs jointly and severally
including the costs attendant on the employment of two counsel.’
The substituted order set out in para 1.3 above is to be complied with within 14 days of date of
this judgment.’

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