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ADDRESS TO THE MIDDLE TEMPLE SOUTH AFRICAN CONFERENCE ON

24 SEPTEMBER 2010:

THE RULE OF LAW AND PROSECUTIONS: TO PROSECUTE OR NOT TO PROSECUTE

- A SOUTH AFRICAN PERSPECTIVE

Billy Downer[1]

INTRODUCTION

I am honoured that the august Honourable Society of the Middle Temple has invited me to deliver this paper.

I have read with awe the list of speakers and delegates. It is littered with legal luminaries. I must warn you that I am in a humbler league. I am a relatively low-level line prosecutor. I now coordinate (note: not head up) our provincial (note: not national) complex commercial crime component, which is but one of the handful of such provincial agencies in our country. At the same time, I am a court animal: I do actual prosecutions. The views I present in this paper come from the lowly arena of battle.

There is, I trust, some worth in a view from this perspective. Theodore Roosevelt colourfully described ‘life in the arena’ as follows:

“The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, and comes short again and again, because there is no effort without error and shortcoming, but who does actually strive to do the deeds; who knows the great enthusiasms, the great devotions; who spends himself in a worthy cause…”[2]

Mr Starmer and I have been asked to talk to you about decisions to prosecute or not to prosecute. We must relate this to the rule of law.

Why are decisions to prosecute or not to prosecute a burning rule of law issue? Well the answer surely is that rule of law proponents want decisions regarding prosecutions to be as fair as possible. They want everyone who commits a crime to be prosecuted or not prosecuted equally, according to the same criteria. This means that they do not want prosecutors to decide arbitrarily to prosecute some people who commit crime, but not others who also commit similar crimes. In particular, they do not want the politically or socially powerful, those who have connections to the right people or groupings and those who are simply rich, to escape prosecution either because of their status or because they have the means to influence or control prosecutors. They want prosecutors to be out of reach of undue influence.[3] They want prosecutors to prosecute without fear, favour or prejudice. They want prosecutors to make fair, equal and independent decisions leading to trials of the same quality.[4] They want all people to be equal before the law[5]

When there is controversy about a decision to prosecute or not to prosecute, human rights proponents test it against the principles of fairness, equality and independence. If the decision is thought to fall short on these criteria, then the conclusion is reached that the rule of law has been breached. Where the breach is serious or persistent, then negative conclusions are reached about the overall health of a rule of law-based society.

So the questions which I shall address, with reference to some of the cases I have been involved in or know about, are: what recent decisions to prosecute or not have been made, by whom, according to what criteria, under whose directions, and how does this stand up when tested against the rule of law tests of fairness, equality and independence?

When the prosecution digs in its heels and refuses to bow to undue pressure, what happens then to the recalcitrant prosecutors and their agencies is also a test of whether the rule of law is being respected.

To address these questions, I propose to tell you something about the South African prosecuting arrangements. Then I will relate some lower-order prosecuting decisions that I have been concerned with and place them in context. I will contrast these with some of the more difficult and notorious decisions which you all may know something about, and list the consequences of these decisions. Before I end, I want to give you a flavour of how some of my fellow prosecutors in foreign prosecuting agencies have been affected by some of their decisions to prosecute. I will then draw my conclusions.

Let me say at the outset that I will conclude that there have been some recent successes for the rule of law. There is, however, much that should worry a rule of law proponent, both nationally and internationally. This is mostly when decisions to prosecute or not are made in the really big cases that involve the powerful. Inevitably, decisions in these cases turn on whether a prosecution is in the national interest and who may determine this: the prosecution or the politicians.

Prosecuting the powerful for serious offences is almost without exception the strongest prosecutorial imperative that trumps the other considerations of public policy. Where the politicians have wrongly appropriated this determination to themselves, or where the prosecutors have wrongly deferred to a political determination, we have a duty to speak out against abuses and act accordingly. When the prosecution is unduly punished for refusing to bow to undue pressure, we must also speak up. It is a sign of hope that there is no lack of those who are willing to make themselves heard. Eminent South African jurist Wim Trengove put the duty in very strong terms. In his address to the University of Cape Town in April 2009, he said:

“Lawyers have a particular duty to do so and if we don’t, we might one day look back at this decision and realise that it was a tipping point leading to the slippery slope of erosion and ultimate destruction of the rule of law.”[6]

Before I move on, let me acknowledge that I am much indebted to two lawyers and authors, who have made available to me their unpublished papers. They collectively and exhaustively cover the whole field of this paper. I have unashamedly borrowed extensively from them, with their permission.

The first is Wim Trengove SC of the Johannesburg Bar, whom I have just mentioned. He presented a seminar to the Demographic Governance and Rights Unit at the University of Cape Town on 15 April 2009 titled: “Zuma walks. Special treatment for special cases: Are some more protected under the Constitution than others?”[7]

The second is Harvard law graduate and NPA intern Robert N. Haferd. His thesis which I received in May 2010 is titled “Effective Prosecution of Grand Corruption: The South African Experience as a Case Study for Emerging Democracies”.

Last, but not least, I must also acknowledge the enormous debt I owe to Anton Steynberg, my lieutenant in the Shaik, Zuma, Thint and BAE investigations and prosecutions, whose wise counsel guided us constantly, and whose comments on this paper I have happily incorporated. His promotion to the International Criminal Court virtually as we speak leaves the NPA the poorer but prouder.

THE CONSTITUTIONAL STRUCTURE OF THE NPA

Before decisions to prosecute in the South African context can be tested against the rule of law, it is necessary to say something about the Constitutional structure of the NPA and to what extent it is subject to government control.

On the one hand, this is an extraordinarily complex subject. Haferd illustrates in his detailed analysis just how complex it is.[8] A dichotomy arises from the fact that the NPA falls firmly within the executive arm of government and is thus subject to government policy and control, yet it exercises its functions in the judicial sphere, which requires such functions to be exercised independently of any such control. There is no one accurate answer which will readily be acceptable to opponents of the one or other interpretation. As I will discuss later, disagreement about this played some part in the unfair removal of previous National Director of Public Prosecutions (“NDPP”), Mr Vusi Pikoli. This was connected to a decision to prosecute and this must remain a matter of concern to proponents of the rule of law. This was essentially the real question facing the Ginwala Commission that was appointed to investigate whether Mr Pikoli was fit to hold office. His legal challenge against his removal was settled before a court could determine this issue. There is thus no authoritative South African legal pronouncement that interprets the applicable legislation, other than the findings of the Ginwala Commission.

Nevertheless, there are some acceptable broad parameters which ought to survive quibbles from extremists. It is useful to begin with section 179 of the Constitution[9]. This provides for a single national prosecuting authority which the NDPP heads. The provincial Directors of Public Prosecutions (“DPP”) exercise original powers to prosecute within their areas of jurisdiction, subject to the control of the NDPP.[10] Section 179 continues with the order that, “[n]ational legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.”[11] By itself, this language seems to confirm the NDPP’s and DPPs’ independent discretion in making prosecutorial decisions.

The NPA Act[12] implements the Constitutional plan in much further detail. It provides the qualifications for appointment, and importantly, the standards for suspension and removal of the NDPP. He may be removed only:

• for misconduct;

• on account of continued ill-health;

• on account of incapacity to carry out his or her duties of office efficiently; or

• on account thereof that he or she is no longer a fit and proper person to hold the office concerned.[13]

All of the above appear to make it difficult to fire an NDPP for exercising his powers to prosecute properly, even if there is disagreement with a particular decision.

The NPA Act contains a full section detailing the responsibilities of the NDPP to the Minister of Justice and Constitutional Development. The NDPP is required to “furnish the Minister with information” and reports regarding cases and submit an annual report,[14] “provide the Minister with reasons for any decision taken by a Director,”[15] “furnish the Minister with information” regarding policy and policy directives, and “arrange meetings between the Minister and members of the prosecuting authority.”[16] This list can best be interpreted exhaustively to mean that “the Minister’s powers of oversight are confined to those included in the Act.”[17] Neither the Constitution nor the NPA Act provide for the Minister to interfere in decisions to prosecute or not.

Finally, the statutorily defined length of term suggests that the position of NDPP should be counter-political. An incoming NDPP is appointed to a non-renewable term of ten years. Beyond the basic security this creates, the President knows that the appointee might outlast the Presidency, as the Presidential term is only five years[18]. This is unlike, for example, the Attorney General of the United States, whose term is bound more or less to the whims and fate of the President.

The Supreme Court of Appeal (“SCA”) has remarked that “although the NDPP is a presidential appointee it is fair to assume that the drafters of the Constitution took it for granted that the NDPP would, as would Attorneys-General in common-law countries who are also political appointees, act independently and not take political considerations into account in making prosecutorial decisions.”[19]

Despite all of the above, the central ambiguity regarding independence is contained in the provision in section 179 of the Constitution, that is, that the Minister of Justice - a political officer within the Cabinet - retains ‘final responsibility’ over the NPA. How can the NPA possibly exercise its functions without ‘fear, favour, or prejudice’ when this is the case?[20]

The most reasonable answer, which accords with the constitutional imperative of prosecutorial independence, is that the Minister’s influence at least cannot extend to specific prosecutions. The Ginwala Commission came to this conclusion: “[t]he independence of the prosecuting authority is limited to the execution of its functions, importantly, of deciding whether to prosecute or not to prosecute a particular offender.”[21]

As a footnote to this discussion, it should be borne in mind that the prosecution is not completely independent in all countries that have a good human rights record. Haferd remarks as follows:

“The brief comparison of systems above shows that vastly different levels of prosecutorial oversight by the Executive have proven workable, depending on the country and the political context. Sure enough, looking back at the Corruption Perceptions Index, Denmark, Finland, and Australia have significantly different levels of prosecutorial independence, but all rank in the top 10 of countries for [least] perceived corruption levels this past year.[22] It would seem, then, that no particular setup of the independence within the prosecutorial branch is inherently superior to another. However, after an analysis of how South Africa has structured its NPA, and comparing the model of independence adopted in its Constitution with others, one definitive conclusion will be reached. Namely, that the key factor to any legitimate and effective prosecutorial branch is a structural guarantee of independence at some level along the chain of command. The particular decisions to prosecute must be respected and maintain the appearance [of] impartiality to uphold legitimacy.” [23]

The best interpretation of the constitutional positioning of the NPA in South Africa, is that its independence from executive interference is of a high order. As will be seen below, the actual practice of independence may vary from NDPP to NDPP.

A further important consideration for this debate is how independent the provincial DPPs are from the control of the NDPP. This will be examined in more detail below.

THE NPA’S PROSECUTION POLICY

The NPA’s Prosecution Policy[24] recognizes that prosecutors have a discretion in each case whether or not to prosecute. The aim of the Policy is to set out, with due regard to the law, the way in which it is exercised.

Chapter 3 provides that “prosecutors must assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution”.

But the Policy recognizes that “There is no rule in law stating that all the provable cases brought to the attention of the NPA must be prosecuted. On the contrary, any such rule would be too harsh and impose an impossible burden on the prosecutor and on a society interested in the fair administration of justice.” Prosecutors are accordingly enjoined to take account of the public interest: “Once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable prospect of a conviction, a prosecution should normally follow, unless public interest demands otherwise.” Further guidance is provided, relating to the nature and seriousness of the offence, the interests of the victim and the broader community, and the circumstances of the offence.

I am confident that most prosecution policies applicable to prosecuting agencies in functioning democracies will include provisions permitting and regulating prosecutors’ discretion such as ours, encompassing an evidential and a public interest test along similar lines.[25]

Given the constitutional independence of the NPA, at the very least in decisions relating to specific cases, the public interest criterion that has binding force through the Prosecution Policy is – at this level – the exclusive preserve of the prosecution.

SOME LOWER-LEVEL DECISIONS TO PROSECUTE

A prosecution policy with these guidelines encompassing public interest considerations functions well in lower-level decisions to prosecute or not, however finely balanced or difficult the decisions might be.

Let me tell you about the cases of Mr Pavlos Joseph and Sunday Mirror journalist Simon Wright from England. I relate this simply to illustrate practically how important public interest considerations are to the prosecution even when it exercises its routine functions in seemingly minor matters.

Mr Joseph travelled to South Africa during the soccer world cup tournament which we hosted earlier this year. He is an avid England supporter. He looked forward to attending all the England team’s matches and seeing his team playing well. Much was his disappointment when the team performed dismally and eventually exited the world cup at the Cape Town Stadium when it lost to Algeria. After the match, Mr Joseph found his way on to the pitch and thence to the team’s dressing room. There he confronted David Beckham and managed to give him a piece of his mind before the FIFA officials woke up and escorted him out.

The pitch and dressing room were restricted areas. Under legislation that South Africa had adopted as part of its obligations to FIFA for hosting the world cup, trespassing in a restricted area was an offence. Mr Joseph was not, however arrested immediately. He contacted his sister in England and told her what had happened. She in turn contacted the Sunday Mirror with a view to selling his story.

Mr Wright of the Mirror was also in Cape Town covering the world cup. His editors contacted him and he immediately set about securing Mr Joseph’s exclusive story. He eventually booked Mr Joseph and his party into an expensive hotel using a false name, so he said, to put other journalists off the trail and retain his exclusive story.

The trouble is that very soon after Mr Joseph had been bundled out of the dressing room, FIFA, on receiving a complaint from the England team, laid a complaint of trespassing with the police. The police set about trying to identify and arrest Mr Joseph. Their search was frustrated because Mr Wright had spirited Mr Joseph away.

The Sunday Mirror published an article under Mr Wright’s by-line to the effect that Wright was safely interviewing Joseph when the police and the whole world were hunting high and low for him.

Joseph was eventually tracked down and arrested for trespassing. There was much fuss in the press. His lawyers made representations to our office to withdraw the charges. It fell to me to recommend what to do. The tenor of the representations was that Mr Joseph had been looking for the public conveniences and had mistakenly entered the dressing room. After two visits to the stadium to retrace Mr Joseph’s steps, I was able to conclude that his version was very unlikely. The prosecution continued and he eventually agreed to pay an admission of guilt fine. That was the end of the matter.

The police then arrested the journalist for obstructing them. After extended negotiations, he also paid an admission of guilt fine, this time for making an incorrect entry in an hotel register.

In both decisions as to whether to prosecute, on what charges and how to proceed with the case, the interplay of all the factors that a prosecutor must take into account was very finely balanced. The prospects of securing a conviction on the evidence had to be carefully considered. The offences were arguably minor. The personal circumstances of each accused carried much weight. They were visitors in a foreign country. On the other hand the issues of public policy were also compelling. The England team, FIFA and the country looked to our law enforcement agencies to ensure that the tournament was conducted in an orderly fashion. The world’s attention was focused on us. The rest of the tournament was still to come and the public must know that trespassers and those who sought to shield them from the long arm of the law would be properly dealt with.

All of these considerations, including the public policy issues, remained for ultimate determination in our local office. It is unthinkable that some government official, such as for instance one or more of the Ministers of Justice, Police (Safety and Security) or Sport could issue an instruction that the prosecution should or should not continue for reasons of public policy. This remains true despite the national and international dimension of the matter.

There are many more and more difficult decisions that prosecutors must make routinely according to their discretion, involving very weighty and complex issues of lower-level public policy. They all illustrate the same point. Prosecutors are faced daily with excruciatingly difficult decisions in crimes involving, for instance, racial issues that could spark unrest if not resolved fairly, environmental matters that affect whole communities, matters concerning the security of tenure of impoverished labourers versus the rights of land owners, freedom of expression versus the right to privacy, the determination of the right to kill in self-defence, the rights of women and other previously disadvantaged groups, the impact of commercial crime on the economic well-being of communities, and so on. Time and again, complainants and accused persons look to prosecutors to make the correct decisions where they must properly factor in the public interest and public policy.

This routine and internationally accepted inclusion of a public interest criterion in the prosecutor’s arsenal is usually not questioned at this lower level. It is accepted as the way it should be. It must not, however, be allowed to become a Trojan horse for executive interference. The point is, that it is unarguable in the sort of cases that I have described that it is the prosecutor who must determine the impact that public interest factors will have on a decision whether or not to prosecute in any particular case, not the politicians or other powerful influence peddlers or interest groups.

SOME HIGHER-LEVEL DECISIONS TO PROSECUTE AND NOT TO PROSECUTE

I think that the Middle Temple has been astute in choosing Keir Starmer and me to talk to you on the present topic. Each of us has some connection with prosecuting decisions that have raised much constitutional dust.

The BAE/Al Yamamah decision

The DPP of England and Wales is eminently qualified to examine closely the constitutional pedigree and lessons for the rule of law attaching to the BAE/Al Yamamah decision and the litigation that followed it.[26] In that case, the Director of the Serious Fraud Office in the UK decided not to pursue an investigation because to do so might have endangered British lives.

I have adopted above the scheme of seeking to examine who took what decision to prosecute or not to prosecute, under whose direction and for what reason, as a measure of whether the rule of law is being properly served. The Al Yamamah decision, on the face of it, would appear to involve a decision of public policy (the national interest in saving British lives) that was allowed to remain the preserve of the prosecution. The further crucial question is whether the Director of the SFO got it right, as the House of Lords said he did.

The Shaik/Zuma/Thint decisions to prosecute and not to prosecute

But let me give you more details of the matters that I am better qualified to discuss. I was involved in the series of decisions to prosecute and not to prosecute our current president, Mr Jacob Zuma, his financial adviser Shaik and the French arms company Thomson-CSF/Thales/Thint. The first decision in this saga was in 2003 and the last in 2009. The period between is littered with litigation and judgments, all of them having constitutional significance.[27]

In order to make some sense of the convoluted events over the years, I borrow the following timeline from Wim Trengove, suitably adapted and supplemented for the purposes of this paper.[28] I also relate his cogent criticisms of the ultimate decision not to prosecute Mr Zuma. I have abridged his argument for the purposes of this paper. Any infelicities in this process are obviously for my account. I would urge you to read Wim’s address in its entirety to gain the full advantage of his brilliant contribution to the debate on the rule of law and decisions to prosecute.

Timeline

1. In 2003 the then NDPP Mr Ngcuka announced firstly his decision to prosecute Mr Shaik and secondly his decision not to prosecute Mr Zuma because, he said, although there was a prima facie case against Mr Zuma, the case wasn’t sufficiently strong to justify a prosecution at that time.

I must insert here that a political and constitutional controversy has raged ever since Mr Ngcuka’s decision not to prosecute Mr Zuma, who was then the deputy president of the country. The debate has rule of law significance. Mr Ngcuka announced publicly that the investigating and prosecuting team, of which I was a part, had recommended that Mr Zuma should be prosecuted. The NDPP therefore took an original decision not to prosecute, against the advice of the two line prosecutors and, indeed the other members of the investigating team.

Mr Ngcuka’s decision is constitutionally significant for three main reasons:

• First, this is an original decision taken by the NDPP and not a decision confirming or overturning some previous decision of a subordinate DPP. It is debatable whether the framers of the Constitution ever intended the NDPP to have any original powers of decision at all, even though he is the head of the NPA. If he does have such powers, the independence of the DPPs is eroded to the extent that they concede some of their decision-making powers to the NDPP, which in turn affects the degree of independence that the prosecution in this country enjoys.

• Second, he disagreed with the line prosecutors’ recommendation to prosecute Zuma. With hindsight, Mr Ngcuka might wish that he had followed our advice. This decision so viewed may be categorized as one taken by a constitutionally independent head of a prosecution service, based on his view of the prospects of success, but against the advice of the prosecutors who actually dealt with the evidence and who had a different view of the prospects of success. It is constitutionally instructive to contrast such a decision with the position of the regional prosecutor in Milan, Italy, Mr Fabio de Pasquale. He has waged a valiant campaign over years against Prime Minister of Italy Mr Silvio Berlusconi, with some remarkable successes. Mr de Pasquale has been able to implement his own decisions in the less hierarchical Italian system.[29]

• The third constitutional significance of this decision is the following. For the two above reasons and others, Mr Ngcuka’s motives have been criticized from various quarters of the political and legal community. This in turn continued and fuelled the debate some years later about the succeeding NDPPs’ motives for deciding to prosecute Mr Zuma after the Shaik trial. Mr Ngcuka and the NPA (including me), in all the court papers where this issue has been raised, have vigorously and in depth denied any improper motive. Nevertheless, the negative public spin accorded to the Ngcuka decision not to prosecute, which was said to have poisoned the later decisions to prosecute Mr Zuma, tended to add some public force to the calls to drop the Zuma charges entirely, and even to abolish the Scorpions, which agency Mr Ngcuka famously founded and headed. Both of these events eventually came to pass. Haferd’s conclusions are apposite here:

“The NDPP should ideally act as policy setter and organizational head, and generally leave the prosecutorial function, including instituting charges, to the DPPs and line prosecutors. This accomplishes a number of goals. In terms of public perceptions, when the quasi-political national head is deciding to bring charges herself, major cases against top officials (like in the Zuma or Selebi cases) risk appearing politically motivated. By leaving actual decisions to prosecute to the simple evidentiary calculus of DPPs, it allows the quasi-political NDPP to remain less open to accusations of impropriety or conspiracy.”[30]

2. The Shaik prosecution then took its course. It ended in mid-2005. You may remember that damning judgment of the High Court which culminated in Mr Shaik’s conviction and sentence to 15 years’ imprisonment.[31] Immediately after that, President Mbeki dismissed Mr Zuma from Cabinet. The then NDPP, Mr Pikoli (Mr Ngcuka had resigned shortly before the Shaik case commenced in October 2004), decided and announced his decision to prosecute Mr Zuma, who was then an ordinary citizen who did not hold public office. An important feature of this part of the story is that after that High Court judgment, the prosecution of Mr Zuma was a legal inevitability. One could not possibly, in the face of that judgment, do nothing. It was clear as daylight that a prosecution had to follow. It does not mean that Mr Zuma is guilty, but the judgment just made it clear that there was such a strong case against him that it would be quite improper not to prosecute.

How is this decision to be measured against the rule of law barometer? Once again, It was an original decision taken by the NDPP, based on an appraisal of the prospects of success in the light of the available evidence then. An interesting feature is that, yet again, the NDPP chose not to follow our advice (I was the head of the team by then), this time to delay Mr Zuma’s prosecution until we had gathered all the new evidence that we had set about obtaining.

3. Shortly after the decision to prosecute, the Scorpions launched search and seizure operations at more than 20 premises associated with Mr Zuma and gathered hundreds of thousands of documents of evidence in support of the charges against him. Immediately after that Mr Zuma launched an attack on the warrants and their execution in the High Court. This attack led to drawn out litigation which delayed the whole process. That was late 2005.

4. As a result of these attacks on the evidence gathered under the warrants, the prosecution team was initially uncertain whether to prepare its case on the basis of the new evidence, or only to base it on the old evidence because the legal status of the new evidence was uncertain. In the circumstances, our preparation was hindered, as a result of which, when the matter came before Msimang J in the High Court in Pietermaritzburg in the middle of 2006, the state was not ready to proceed and the court, despite our strenuous objections, struck the matter from the roll. The judge made it quite clear that he thought that it would be improper for the prosecution to proceed while the status of the disputed evidence was still so uncertain.

5. So that litigation dragged on. It took us from 2006 into 2007. In 2007, in the latter half of the year, various things happened. Firstly, in a seemingly related event, but not one directly related to the Zuma case, the then NDPP Mr Pikoli, who was responsible for the decision to prosecute Mr Zuma, was suspended in September 2007 on the cusp of the arrest and prosecution of the national police commissioner, Mr Selebi. (These events are discussed below). In November that year, the SCA finally upheld the warrants and held that the evidence had been lawfully gathered under them.[32] In other words, Mr Zuma’s attack on that process was dismissed.[33]

6. Immediately after the SCA judgment had been delivered, the prosecution team, prepared and finalised the draft indictment on which we had been working. It was quite different to the Shaik indictment, incorporating the considerable body of new evidence that the prosecution had gathered since the conclusion of the Shaik investigation, effectively in 2002. The process of finalising the draft indictment was completed in early December 2007. There were three important events in that month. In early December the prosecution team completed the indictment. In mid-December the ANC’s national conference took place in Polokwane, at which Mr Mbeki and Mr Zuma were candidates for the presidency of the ANC. In late December, after the Polokwane conference, Mr Mpshe (as acting NDPP while Mr Pikoli was absent under suspension) launched a new prosecution against Mr Zuma. The decision once again spawned an industry of litigation and judgments, culminating in the SCA judgment dismissing the accused’s objections to the charging process.[34] The door was then open to proceed with the prosecution in December 2008.

What is the constitutional pedigree of the decision in 2007 to prosecute again? It was an NDPP’s decision.[35] This time our advice was to take the final decision to prosecute and announce it as soon as the prosecution was ready to do so, irrespective of any timing that might be related to the impending Polokwane conference. Our plea was, as usual, to leave politics out of it and make the correct prosecution decision, whether or not anyone benefited from it, or whatever attenuated political arguments might prevail. So, once again, the decision to delay the announcement of the decision until after the Polokwane conference was one taken against the advice of the line prosecutors. As it will be seen below, the timing issue was ultimately to prove fatal to the prosecution.

7. The final decision taken to withdraw in April 2009 must now be examined. Mr Trengove’s analysis reveals the following: There are, he believes, five important circumstances on which that decision was based that we should take into account.

Firstly, it was based on secret tape recordings made by the National Intelligence Agency (“NIA”) in the course of their investigation of the so-called “Browse Mole Report”[36]. Mr Mpshe told us in his public statement that this was the basis of his decision.

Secondly, Mr Zuma’s defence team in some as yet unexplained way came into possession of those tapes and, in making representations to the NPA to persuade them to withdraw the prosecution, relied on those tapes and allowed the NPA to listen to them.

The third fact is that those tapes were tapes of telephone conversations mostly between Mr McCarthy, the then Head of the Scorpions, with various people, mainly Mr Ngcuka, the previous NDPP, but other people as well. Those conversations took place around the Polokwane conference in December 2007, both before and after the conference. One can see from the transcripts that have been released that the subject-matter of their discussion was a debate whether the decision to prosecute, which was by then taken, should be implemented by launching the prosecution before Polokwane or after Polokwane.

The tapes suggest very strongly that in those conversations Mr McCarthy, Mr Ngcuka and others debated that issue, not on the basis of what was right, but on the basis of what would best suit the interests of President Mbeki, to the prejudice of Mr Zuma. Their thinking seems to have been that the prosecution should be delayed until after Polokwane because a prosecution on the eve of Polokwane would smack of political conspiracy against Mr Zuma, which would in turn engender support for him, to the prejudice of Mr Mbeki. That, anyway, seems to have been the thinking of those who spoke on the tapes. It would of course have been quite improper, because, as I argue, not only the prosecution itself, but also its timing, should not be influenced by extraneous political considerations of that kind. So the fourth fact is that those people who connived in those telephone conversations, apparently acted for quite improper political purposes.

But the fifth and last fact, and one Mr Trengove wishes to emphasize, is that those conversations and the scheming that went on in them, were confined to the issue of the timing of the prosecution. The debate wasn’t whether the NPA should prosecute or not prosecute. The people speaking on the tapes were obviously aware that a prosecution was to happen. The decision had been taken. The only matter they debated was whether it should be launched before Polokwane or after Polokwane. That was the beginning and end of the debate. Quite an improper debate, but on the very narrow issue of the timing of the implementation of the decision to prosecute.

8. Mr Mpshe announced in a public press statement in April 2009 that he had decided to withdraw the prosecution, notwithstanding his rejection of Mr Zuma’s representations concerning the merits of the decision to prosecute him. In coming to his conclusion, he explained that the evidence of misconduct compelled him to withdraw the prosecution: “In the present matter the conduct consists in the timing of the charging of the accused”.

About the conduct revealed by the tapes, he said the following:

“Mr McCarthy used the legal process for a purpose other than which the process was designed to serve i.e. for collateral and illicit purposes. It does not matter that the team acted properly, honestly, fairly and justly throughout. Mr McCarthy’s conduct amounts to a serious abuse of process and offends one’s sense of justice. If Mr McCarthy’s conduct offends one’s sense of justice, it would be unfair as well as unjust to continue the prosecution. In the light of the above, I have come to the difficult conclusion that it is neither possible nor desirable for the NPA to continue with the prosecution of Mr Zuma.”

The only question asked was: “Does McCarthy’s conduct offend one’s sense of justice?” Having concluded that it does, that was the end of his inquiry.

Mr Trengove argues cogently that this line of reasoning is flawed. He points out that, on the available information, it was Mr Mpshe who took the decision to prosecute. He was unaware of Mr McCarthy’s improper conduct revealed later on the tapes (if indeed this is what the tapes reveal – it is only fair to emphasise that Mr McCarthy has not been heard on this issue). So Mr Mpshe’s decision must have been taken for good and proper reasons, unaffected by McCarthy’s conduct. Mr Mpshe confirms this when he says that his conscience is clear.

Let me summarize this: As Mr Trengove points out, the improper conduct relates only to the timing of the decision to prosecute, and not the decision itself. The decision was inevitable after the Shaik judgment years before that and a prosecution had always been the team’s considered recommendation. The decision was then one taken by a number of people in different circumstances, who all came to the same conclusion.

Mr Trengove then argues that Mr Mpshe wrongly failed to proceed beyond the question of the possible abuse. He should have considered whether the abuse “outweighs the competing public interest in ensuring that those who are charged with grave crimes should be tried”.[37]

The result is that Mr Zuma, who was destined to occupy a high office, was not charged. This, so Mr Trengove argues, offends against the rule of law principle that those who are charged with grave crimes should be tried whether in high office or not.

Mr Trengove goes on to argue that, in a matter of such critical public importance as this one, it should have been left to the courts to decide what effect the abuse of process should have on the trial. It is one that ought appropriately to be determined by a judge and not by a prosecutor. Obviously, in clear cases there is no reason why a prosecutor shouldn’t stop the prosecution where it is self-evident that the case has been fatally flawed. This, however, was not such a case.

Mr Trengove’s impression is of someone only too relieved to find an escape from this intolerable pressure and that the acting NDPP latched onto the abuse related to the timing of the prosecution to rid himself of this burden, because the pressure had simply become unbearable.

9. The decision not to prosecute has left four questions unresolved. The first and most obvious one is that Mr Zuma’s guilt or innocence remains undetermined.

Secondly, was there gross misconduct on the part of the National Intelligence Agency or at least somebody within that organization, in releasing intelligence to a private citizen? It is an offence to do so. The spectre that the NIA released protected intelligence information to a rising political star to engender alliance with him, for him to use it for his own political purposes, augurs dark days ahead, argues Mr Trengove.

Thirdly, in the absence of properly evaluated evidence to gainsay it, it would seem as if someone within Mr Zuma’s team apparently illicitly received these tapes from NIA, kept them and used them for personal purposes. That would be not only highly improper, but also illegal[38].

Lastly, what are the prospects of a proper investigation and prosecution of high crimes in high office in the future? Remember that, in this matter, the Scorpions who investigated the case have been closed down, Mr Pikoli, who first took the decision to prosecute Mr Zuma, has been dismissed, and Mr Mpshe has withdrawn the prosecution, against the firm advice of the line prosecutors and on legal grounds that, as we see, are subject to trenchant criticism.

To Mr Trengove it appears that, if these decisions are to go unchallenged, then the clear and unequivocal message to our crime fighting and investigation agencies, to prosecutors and particularly to future NDPPs, would be that going after people in high office will not be tolerated. This is the basis of Mr Trengove’s call to action.

How is the decision to withdraw the Zuma prosecution to be measured from the rule of law perspective?

It was once again an original decision taken by the (acting) NDPP, based on an appraisal of the prospects of success in the light of the alleged misconduct of one of the players in the decision-making process concerning the timing of the prosecution. The by now monotonous feature was that the NDPP chose not to follow the line prosecutors’ advice. (It is to Mr Mpshe’s credit that I was allowed to announce publicly that the line prosecutors and investigators did not agree with the decision to drop the charges. We recommended that the prosecution against Mr Zuma and Thint should continue.)

Issues of alleged misconduct on the part of the prosecution should be fought in court, leaving them for the court to decide openly upon properly settled and tested evidence.

In the event, the die was cast. The Scorpions were inevitably abolished. The NDPP was suspended, and his final removal followed. The acting NDPP had no security of tenure, which was at the whim of the executive, and, indeed, he was replaced at the end of 2009.

Selebi

I have mentioned above that our then-NDPP, Mr Vusi Pikoli, was removed from office, because of his decision to prosecute our then head of the police, national commissioner Jackie Selebi. I was not involved at all in the Selebi matter. I am not qualified to examine in any depth the seemingly Byzantine features of this saga. Nevertheless, I can consider what is publicly known and draw some conclusions from this.

The outline of the facts is this. The executive disagreed with Mr Pikoli’s decision to prosecute the commissioner of police for corruption, either at all, based on its appraisal of the prospects of success on the evidence, or in bringing the prosecution at the time that the NDPP thought it proper to do so.[39]

A crucial argument appeared to turn on the proper appraisal of the public or national interest. Would prosecuting the commissioner of police lead to unrest or instability? If so, did this mean that the prosecution should be delayed or dropped? Mr Pikoli, after extended interaction with the executive, insisted that these decisions were ultimately his to make and he decided to implement his decision to prosecute. He was suspended and ultimately removed from office.

How is this decision to be measured against the rule of law barometer? It was once again apparently an original decision taken by the NDPP, based on an appraisal of the prospects of success, taking into account the public interests for and against prosecuting the chief policeman in the country at the time the NDPP thought it best to prosecute. The consequences of the NDPP persisting with his decision, despite executive disapproval, are the most constitutionally significant: the NDPP lost his job. Given the conclusions tendered above that the NPA enjoys constitutional independence in the appraisal of the merits and the public interest, at least in individual prosecutions, the NDPP’s removal because he correctly asserted his independence, was an all-time low on the rule of law barometer.

The postscript to this saga is threefold.

First, I commenced the process to nominate Mr Pikoli, through the Society of State Advocates of South Africa, for the International Association of Prosecutors’ Special Achievement Award. He received the award in September 2008 at a ceremony attended by delegates from around the world. He was unanimously commended for his courageous stance in favour of the independence of the prosecution.

Second, the Selebi prosecution ultimately continued due to the persistence of the line prosecutors who remained in charge of the case, despite the suspension and removal of the NDPP, the appointment of an acting NDPP, and then a new NDPP. This raised the constitutional barometer somewhat, because the independence of the prosecution ultimately trumped executive interference.

Third, the prosecution delivered an emphatic conviction and a condign sentence of imprisonment in mid-2010. Given the history of interference, this achievement has served to bolster confidence in the prosecution.[40] It augurs well for the rule of law in our country.

I leave it to you to calculate where the barometer stands, when this more recent achievement is weighed against the failure of the Zuma prosecution.

The dissolution of the DSO

The period that I am discussing saw the dissolution of the Directorate of Special Operations (“DSO”, universally referred to as the “Scorpions”).[41] The machinations that led to this are as Byzantine as some of the events that I have described above. The Scorpions investigated and prosecuted both the Shaik/Zuma and the Selebi matters. They also investigated and prosecuted other high-profile matters in accordance with their mandate to do so. Many of these involved prosecutions against politicians.[42] This appeared to cause political unhappiness. Inasmuch as decisions to prosecute in these matters contributed to the dissolution of Scorpions, this has significance for the rule of law and the prosecution. The success of the Selebi prosecution thus prompts the further question: who in future would successfully investigate and prosecute the chief of police, if the police are the only investigators?

If a decision (or decisions) to prosecute is ultimately to lead to the destruction of an effective, constitutional prosecuting agency, then the next question is a tactical one: Is it better to leave aside the big decisions to prosecute that will attract the ire of the politicians and leave the agency intact to fight on effectively in other cases, or must the prosecutors continue to fight the good fight, knowing that they may be going for broke?

Some international examples will enrich this debate.

COMPARATIVE INTERNATIONAL EXPERIENCE OF CONSEQUENCES

As a result of my work in the Shaik case, I was invited about five years ago to join an international group funded by the Norwegian government called the Corruption Hunters’ Network. It is unique in that its members are line-prosecutors who conduct actual prosecutions, or the heads of specialist agencies, like the now-defunct Scorpions who, in accordance with their mandate to investigate and prosecute grand crime and corruption, are often called upon to make decisions in cases against highly placed government officials (presidents, ministers, etc).

The experiences of members of the Network thus reflects what really happens on the ground, rather than the view as filtered through the eyes of politicians, such as ministers of justice or directors-general.

Through the years, I have met all the prosecutors whose fates are listed below. They have personally related most of the events described.

Robert Haferd sets the scene in his overview of international prosecuting experiences.

“The emergence of international instruments like UNCAC were celebrated as “dreams come true”[43] for elevating anti-corruption action to the international stage, and solidifying the normative consensus that has been building up around corruption.[44] However, a brief survey on the ground of the recent attempts to prosecute grand corruption produces a grim picture of the actual state of affairs since UNCAC’s entry into force in 2005.”

In 2007, Nigeria’s Nuhu Ribadu was controversially removed as head of its national anti-corruption agency, the Economic and Financial Crimes Commission, and was exiled from the country after achieving international renown for his anti-corruption crusading and reform efforts.[45]

John Githongo, Kenya’s celebrated head of anti-corruption, was apparently forced into exile in 2007 after he had made allegations of government contracts fraud against four top politicians.[46]

Elsewhere in Africa this past year, Zambia’s anti-corruption head Maxwell Nkole was fired, and its Task Force on Corruption disbanded after spectacular successes.[47]

Meanwhile, Madagascar’s Director General of its Independent Anti-Corruption Bureau, Rene Ramorazatovo, was driven from his position and dismissed by the newly ascendant coup government.

The story is familiar in the Americas, with Argentina’s anti-corruption head Manuel Garrido resigning in March of 2009 when his investigation of the nation’s first family was blocked by the Procurador, an office equivalent to the United States’ Solicitor General.[48]

Former head of Nicaragua’s national anti-corruption agency, Ivan Lara’s investigation of the nation’s president was likewise shut down, and he was removed from his post for his efforts.

In neighbouring Costa Rica, lead prosecutor Juan-Carlos Cubillo was subjected to a media smear campaign when charges were brought against a former president and prospective presidential candidate.[49]

Not to be outdone, in Asia, Bangladesh’s Anti-Corruption Commission head Hasan Chowdhury was forced to resign in April of 2009 after vowing he would not do so.[50] Chowdhury’s self-proclaimed “war against corruption” had attracted negative attention from the government.[51]

With developments like these all occurring within the past couple of years, as Haferd points out, it should come as no surprise that reports from institutions like the World Bank have essentially concluded that

“despite billions of dollars expended on rule of law and good governance programs, corruption maintains a tight grasp on many developing countries.”[52]

The accumulation of recent failures in anti-corruption efforts like these led one Corruption Hunters Network member to report that among the ranks of prosecutors trying to uphold and enforce their anti-corruption mandates, “morale is probably at an all time low.”[53]

Leading anti-corruption NGO Transparency International[54] backs up these sentiments, indicating in its most recent (2009) report that corruption has not decreased, and in certain core areas, such as bribery, instances have actually increased.

Clearly, international recognition and framework conventions alone are not working. And to make things worse, the public knows it.

Studies indicate that “government efforts to tackle corruption are largely seen as ineffective by the general public.”[55] This is surely partly due to the fact that according to the most recent Global Corruption Barometer report created by Transparency International, political parties themselves were perceived to be “the single most corrupt domestic institution, followed closely by the civil service.”[56]

The detrimental effect that corruption has on the public’s trust in its officials and in the democratic process generally threatens to make the people of new and emerging democracies apathetic towards the political process and civic engagement.

Haferd poses this conundrum. It would be expected that where the public’s awareness and intolerance of corruption by its public officials has increased, as it has in places like South Africa, the domestic prosecutorial bodies would enjoy an increased effectiveness in addressing the problem. That this has not come about suggests that, at least in the sub-arena of grand corruption, part of the problem exists in the basic structures and balance of power of the executive and prosecuting branches.

CONCLUSIONS

The recent examples that I have described show that South Africa is not alone in seeing the independence of the prosecution tested to the limits, institutions weakened and the rule of law compromised.

This is – perversely – comforting. Given our recent experiences, the battle may seem an uphill one, but, ultimately, the struggle to ensure that the rule of law prevails in all prosecuting decisions must go on.

There are, fortunately, some reasons for optimism.

Firstly, Mr Zuma’s government has committed itself unambiguously to rooting out corruption. Plans have been drawn up, money has been spent and action has been taken in this regard.

Secondly, the work of prosecutors continues. NPA prosecutors continue to notch up sometimes spectacular successes due to their unselfish dedication, despite crushing difficulties. The Selebi result is a cause for optimism, whatever Machiavelian theories about it may abound.

Thirdly, we should also reflect on the ultimate result of the Shaik case itself, not forgetting the Zuma/Thint precedents – and remember that there are many other such examples. It is not putting it too highly to say that, after a drawn-out struggle, taken all the way to the Constitutional Court, we had changed or clarified the law in favour of the prosecution on:

• General corruption

• Search and seizure

• Mutual legal assistance

• Admission of documentary evidence

• Exceptions to the hearsay rule; and

• The appropriate sentences for serious corruption and related white-collar crime.

In accepting our arguments on these issues, the courts at the highest level have shown that they are in favour of the fearless prosecution of corruption and related serious white-collar crime, irrespective of the profile of the accused. All this law is now available to us to use and build upon. I trust that it helped the Selebi prosecutors and the court.

The Criminal Assets Recovery Account received some R40million from Shaik’s asset forfeiture. This probably covered not only the State’s expenses relating to Shaik’s investigation and prosecution, but also some of the cost of the Zuma investigation.

It is ironic that the final SCA judgment in the Zuma matter[57] found strongly (at last!) that the manner in which parts of the case were litigated on behalf of Mr Zuma, was deserving of the SCA’s censure. The SCA gave us costs on the punitive attorney and client scale as a mark of the court’s displeasure. We found this most appropriate and satisfying because it reflected what we had been trying to say for some time. So whatever the public perception, this is the last judicial word on the subject.

We must also be thankful that the Zuma/Thint prosecution team seems to have escaped any allegations that they were part of the alleged conspiracy against Mr Zuma. The team knows that, whatever allegations may be levelled against it, they must in any case have been doomed to failure, because all the team did was its job, to the best of its ability as it followed the evidence. This surely shows that if you keep your head down and fight professionally, the arsenal that criminal elements have to throw at you personally is limited!

We can still make the correct decisions to prosecute and not to prosecute under the rule of law, and we do.

It is tempting to regard the setbacks as cyclical aberrations in the triumph of the rule of law. I hope this is so.

-----------------------

[1] SC BA LLB (Stell) BCL (Oxon). Deputy Director of Public Prosecutions, Office of the Director of Public Prosecutions: Western Cape (National Prosecuting Authority of South Africa [“NPA”]). At the request of the Middle Temple, the National Director of Public Prosecutions agreed to release me to deliver this paper. I must emphasise that the views I express are my own. They are not the views of the NPA.

[2] Christine McGoey, The “Good” Criminal Law Barrister: A Crown Perspective, Second Colloquia on the Legal Profession, Canada, March, 2004

[3] Robert N Haferd, “Effective Prosecution of Grand Corruption: The South African Experience as a Case Study for Emerging Democracies”, describes this prosecutorial independence as: “the extent to which the bundle of powers traditionally associated with the prosecutorial function are separated from the oversight or interference of the Executive; i.e., the extent of independence from external political control.”

[4] See the UN Guidelines on the Role of Prosecutors Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, especially Article 4: “States shall ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.”

[5] Dennis Lloyd wrote in “The Idea of Law” (Pelican, 1981 at 121) that “[t]he idea of justice embodied in the principle of treating like cases in the same way, seems, when expanded, to involve three related conceptions: first, that that there shall be rules laying down how people are to be treated in given cases; second, that such rules shall be general in character, that is to say, that they shall provide that everyone who qualifies as falling within the scope of the rule shall be governed by it; … In the third place, justice requires that these general rules shall be impartially applied, that is to say, that the agencies concerned in administering them shall apply them without discrimination, or fear or favour, to all those whose cases fall within the scope of the rules.” (Emphasis added.)

[6] Wim Trengove SC, “Zuma walks. Special treatment for special cases: Are some more protected under the Constitution than others?” Seminar to the Demographic Governance and Rights Unit at the University of Cape Town on 15 April 2009, paras 2 and 42

[7] A podcast is available at , last visited on 22.08.2010

[8] Haferd, supra.

[9] Act 108 of 1996

[10] In terms of section 20(3) of the National Prosecuting Authority (NPA) Act 32 of 1998.

[11] Constitution of South Africa, section 179(4)

[12] 32 of 1998

[13] NPA Act section (6)(a)(i) –(iv).

[14] NPA Act, section 33(2)(a), section 34(1).

[15] NPA Act, section 33(2)(b).

[16] NPA Act, section 33(2)(a)-(f).

[17] See Hannah Woolayer and Michael Bishop, Submission to the Inquiry into the NDPP: South African Institute for Advanced Constitutional, Public, Human Rights and International, at 40; See also Zuma v. National Director of Public Prosecutions, Natal Provincial Division, [2008] ZAKZHC 71; [2009] 1 All SA 54 (N) (12 September 2008), at 137. (The “Nicholson Judgment”), in agreement, at 90.

[18] A maximum of two terms may, however, be served.

[19] National Director of Public Prosecutions v Zuma (573/08) [2009] ZASCA 1 (12 Jan 2009) 2009 (1) SACR 361 (SCA) at 66.

[20] Haferd, supra. Given all the indications of independence discussed above, however, it may be that the “responsibility” in this context is to be interpreted in the sense of “political responsibility”, that is to say that the Minister may be held accountable for poor performance by the NPA (in matters such as court hours, conviction rates, etc), rather than for the merits of any particular prosecutorial decision. “Responsibility”, therefore, should not be understood as synonymous with “control”.

[21] Report of the Enquiry into the Fitness of Adv. VP Pikoli to Hold the Office of NDPP (“the Ginwala Commission”), at 52.

[22] Corruption Perceptions Index, (last visited 25 August 2010).Currently, South Africa ranks 55th out of 180 countries in the Corruption Perceptions Index, scoring a 4.7 out of possible 10.

[23] Haferd, supra. Haferd refers to Professor Ziyad Motala’s paper: “Separation of powers and the relationship between the prosecution service and the executive.” Motala rightly warns against arrogantly assuming that all prosecuting agencies must be absolutely independent of the executive to have rule of law respectability - more independence is not necessarily indicative of a “better” or more legitimate system.

[24] NPA Prosecution Policy, revised 30 November 2006, determined by the NDPP in agreement with the Minister of Justice and Constitutional Development, in accordance with sec 179 of the Constitution of the RSA and tabled in Parliament. The Policy is binding on the NPA.

[25] See, for instance, the references to the Ontario Crown Prosecuting manual in Christine McGoey, supra, at p 4-7

[26] R (On The Application of Corner House Research and Others) v The Director of the Serious Fraud Office and BAE Systems PLC [2008] EWHC 714 (Admin) and [2008] UKHL 60

[27] See particularly the ultimate Constitutional Court judgment in the Shaik matter: S v. Shaik and Others (CCT 86/06) [2007] ZACC 19; 2008 (2) SA 208 (CC); 2007 (12) BCLR 1360 (CC) (2 October 2007) and the ultimate Supreme Court of Appeal judgment in the Zuma matter: National Director of Public Prosecutions v. Zuma (573/08) [2009] ZASCA 1, 7 (2009), 2009 (1) SACR 361 (SCA)

[28] It must be noted that Mr Trengove relied on facts on the public record. I do the same for the purposes of this paper. It would be improper for either of us to speak of what happened behind the scenes. The litigation over the years delivered a mountain of affidavits from all the parties, with detailed sworn versions setting out the events, their background and the various motivations that dictated the decisions, from the point of view of the various deponents.

[29] Haferd, supra, p48: “…because of the institutional protection that is accorded to line prosecutors in Italy, his decision was insulated from retaliation or discipline or review, and the case was successfully brought without molestation of his position”. See The Economist, “Italy's highest court rules against Silvio Berlusconi,” Print Edition October 7, 2009.

[30] Haferd, supra, p48.

[31] S v Shaik and Others 2007 (1) SACR 142 (D); [2005] 3 All SA 211 (D)

[32] National Director of Public Prosecutions and others v Zuma and another 2008 (1) SACR 258 (SCA)

[33] Although a further appeal to the Constitutional Court was still possible, and did in fact subsequently eventuate, the significance of this SCA judgment is that it overturned the High Court ruling that the search was unlawful. For the first time since that decision, therefore, the prosecution’s possession of the incriminating evidence was “lawful” and the prosecution could rely on the evidence at its disposal, until and unless the decision was countermanded by the Constitutional Court. It was not. Accordingly, the decision was taken to finalise an indictment based upon all the available evidence.

[34] National Director of Public Prosecutions v Zuma 2009 (1) SACR 361 (SCA)

[35] The mechanics of how this corporate decision was reached are explored in the NPA’s affidavits in more accurate detail.

[36] This was a report compiled by members of the Scorpions concerning information (or, more accurately, raw intelligence) received regarding certain alleged improper relationships between Mr Zuma and foreign heads of state. It was heavily (and rightly) criticised on the basis that the Scorpions had exceeded their crime fighting mandate and strayed far into the realms of the intelligence agencies.

32 Lord Steyn in R v Latif [1996] 1 WLR 104 (House of Lords 18 January 1996)

[37] It is a criminal offence for an unauthorized person to be in possession of classified information.

[38] All of this was traversed in voluminous papers before the Ginwala Commision. I do not pretend to do justice to the complexities of the versions which the various parties tendered

[39] Yet, at the time of writing, it is reported that Selebi’s defence team is urging an investigation of the prosecution for the way in which the case was allegedly conducted.

[40] ISS Today: ‘South Africa – What Future Without the Scorpions?,’ February 17, 2009 (“South African President Kgalema Motlanthe signed two significant bills into law on January 30, 2009: the National Prosecuting Authority (NPA) Amendment Bill and the South African Police Service (SAPS) Amendment Bill. Together, they provide for the dissolution of the NPA’s Directorate of Special Operations (DSO), or ‘Scorpions’, and the establishment of a new anti-corruption unit within the SAPS.”)

[41] I have been told that the percentage of Scorpions investigations and prosecutions against politicians, when measured against the total Scorpions case-load, was, however, small.

[42] Quoted from Peter Michael, ‘UN Deal Will Help Curtail Global Graft, Says ICAC’, South China Morning Post, 7 October 2003, 2.

[43] Philippa Webb, supra note 11, at 228.

[44] Ribadu later received the World Bank’s 2008 Jit Gill Memorial Award for Outstanding Public Service, for having led a courageous anti-corruption drive in Nigeria.

[45] “Githongo's reformist hopes were betrayed when his investigation of a contracting scandal earned him the enmity of colleagues, death threats and smear campaigns. He fled to Britain in 2005, taking along secret recordings of conversations in which powerful officials implicated themselves in the scam.” Publisher’s Weekly, reviewing Michela Wrong, It’s Our turn to Eat: The Story of a Kenyan Whistle-Blower (2009).

[46] See ‘Zambia: Task Force Executive Chairman Maxwell Nkole has been Fired’, Lusaka Times August 25, 2009, available at (visited 26 August 2010).

[47] See “Welcome to the Hotel Kirchner” The Economist February 25, 2010. available at (Haferd visited on 1 May 2010 – the page had been removed by 26 August 2010)

[48] Mr Cubillo persisted and the accused Mr Calderon was convicted and sentenced.

[49] See ‘ACC chief Hasan Mashhud Chowdhury resigns,’ Priyo News April 2, 2009, available at (Haferd visited 1 May 2010).

[50] One can possibly also add to this list Mauritius’s Economic Crimes Office, which was disbanded allegedly after investigating a political heavyweight for corruption, although I have only anecdotal evidence of this.

[51] Mary Webster, supra note 3, at 808, citing a May, 2005 World Bank study.

[52] This was the mood at Corruption Hunters in 2009.

[53] Transparency International is “the global civil society organisation leading the fight against corruption” Transparency International Online, available at (visited 26 August 2010).

[54] 2009 Global Corruption Barometer, Transparency International, Chapter 5 at 17 (“Overall, the general public consider their governments’ efforts to tackle corruption to be ineffective. Only 31 per cent perceived them as effective, compared to the 56 percent that viewed government anti-corruption measures to be ineffective.” Available at - visited 26 August 2010)

[55] Id.

[56] 2009 (1) SACR 361 (SCA)

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