James Grant

[UNDER CONSTRUCTION: More to follow]

This is an attempt to pull together the cases and materials regarding the prosecution of President Zuma on 783 charges of fraud:

1. The judgment in respect of which Mr Zuma has applied for leave to appeal to the SCA – to be heard today (14 Sept 2017): DA v ZUMA HC Gauteng 29 April 2016 (ex annot)
   1. Application by NDPP for direct access to CC: NPA Application Direct Access (Spytapes) – rejected by CC;
   2. Application by NDPP for direct access to CC: DA v ZUMA HC Gauteng 29 April 2016 (ex annot).
2. [To follow]
3. The judgement of Harms NDPP v Zuma (573_08) [2009] ZASCA (12 Jan 2009) setting aside the judgement of Nicholson J which had set aside the decision of the NDPP to prosecute Mr Zuma. This is the judgement in which on finds the statement that substance must prevail over form and process.

[37] The court dealt at length with the non-contentious principle that the NPA must not be led by political considerations and that ministerial responsibility over the NPA does not imply a right to interfere with a decision to prosecute (para 88 et seq). This, however, does need some contextualisation. A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal. The same applies to prosecutions. (footnotes omitted)

However, this quote above is often referred to out of content – without reference to the very next paragraph in which Harms contemplates that an abused of process for ulterior purposes may invalidate conduct.

[38] This does not, however, mean that the prosecution may use its powers for‘ulterior purposes’. To do so would breach the principle of legality. The facts in Highstead Entertainment (Pty) Ltd t/a ‘The Club’ v Minister of Law and Order illustrate and explain the point. The police had confiscated machines belonging to Highstead for the purpose of charging it with gambling offences. They were intent on confiscating further machines. The object was not to use them as exhibits – they had enough exhibits already – but to put Highstead out of business. In other words, the confiscation had nothing to do with the intended prosecution and the power to confiscate was accordingly used for a purpose not authorised by the statute. This is what ‘ulterior purpose’ in this context means. That is not the case before us. In the absence of evidence that the prosecution of Mr Zuma was not intended to obtain a conviction the reliance on this line of authority is misplaced as was the focus on motive. (footnotes omitted)

4. The judgement of Nicholson J which set aside the decision of the NDPP to prosecute Mr Zuma: Zuma v National Director of Public Prosecutions (8652_08) [2008] ZAKZHC 71 (12 September)