IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) In the matter between’ DEMOCRATIC ALLIANCE and THE SOUTH AFRICAN BROADCASTING CORPORATION SOC LTD (“SABC”) THE BOARD OF DIRECTORS OF THE SABC THE CHAIRPERSON OF THE BOARD OF DIRECTORS OF THE SABC MINISTER OF COMMUNICATIONS GEORGE HLAUDI MOTSOENENG W.J. EDELING N.O THUMISO PRINCE PHALANE N.O THE PUBLIC PROTECTOR Case No: 3104/16 Applicant First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent Sixth Respondent Seventh Respondent Eighth Respondent EIGHTH RESPONDENT'S HEADS OF ARGUMENT IN THE STAY APPLICATION INTRODUCTION . THE OBLIGATION TO IMPLEMENT OR REVIEW A DECISION OF THE PUBLIC PROTECTOR THE TIME FOR REVIEW HAS LAPSED .. THE LAW ON UNREASONABLE DELAY IN INSTITUTING REVIEWPROCEEDINGS .. Legality and the applicable time periods 15 THE SABC HAS WAIVED ITS RIGHT TO REVIEW. THE PRACTICAL EFFECT OF THE RELIEF SOUGHT.. cosTs CONCLUSION..INTRODUCTION 1 The SABC seeks to stay the application launched by the Democratic Alliance (‘DA’) to inter alia review and set aside the disciplinary proceedings into the conduct of Hlaudi Motsoeneng (‘the main application’), pending the finalisation of a review application which has now been brought under case number 39679/16 (‘the review application"). The review application seeks the review and setting aside of the Report of the Public Protector published on 17 February 2014 and entitled ‘When Governance and Ethics Fail” (‘the Report’). 2 The SABC contends that the issues arising in the main application will be materially affected if the Pretoria High Court, where the review application is pending, upholds the SABC’s review application’. This, they contend, would not be in the interests of justice and that the most “convenient” and “equitable" way forward would be for the review of the Public Protector's report to be adjudicated first. In the ordinary course, that may be so. \However, the sequence of events in this case is far from ordinary and in fact, as we submit below, the time for the SABC to review the Public Protector’s report has long passed. The SABC made its election to implement the Public Protector’s report and now that its chosen implementation has been questioned, it is not open to the SABC to attempt to review the Report instead. 3 _ It is therefore patently not in the interests of justice for the main " SABC’s Heads of Argument par 3 p3pplication to be stayed and to do so would undermine the effectiveness “of the Public Protector and the importance of the findings of that “institution? 4 Wesay this for the following reasons: 4.1 First, the SABC has in-taunching its review, contrary to the time period provided for in the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’) or in the common law; 4.2 Second, even if the SABC's unreasonable delay is condoned, the "SABC is precluded from seeking to review the Report because it waived its right ew when it instituted disciplinary proceedings against Mr. Motsoeneng in purported compliance with the remedial action taken in the Report. 4.3. Third, the judgment of the Constitutional Court in Economic Freedom Fighters v Speaker of the National Assembly and Others:_Democratic Alliance v Speaker of the National Assembly and Others? ("the Nkandla Judgement’ ’) made clear that an organ _ of state is required by section 181(3) stitution to ensure the effectiveness of the institution of the Public Protector. The ongoing failure by the SABC and the Minister to act promptly in either reviewing or implementing the Report, is therefore unlawful and unconstitutional, By granting an order to stay the main ? Public Protectors affidavit para 26-28 ptt + [2016] ZAC 11 at para 50application pending the review of the Public Protector’s Report, this Court will be sanctioning conduct which is in contempt of the “order of the Supreme Court of Appeal (the SCA’) which required the institution of disciplinary proceedings by the SABC against Mr 44 Fourth, a decision which allows a review as an effective “second , bite at the cherry” after the implementation of remedial action is placed under judicial scrutiny, would have far reaching ramifications for the Office of the Public Protector and the effectiveness of the decisions of that Office; and 45 Finally, on the SABC’s own version, the law requires that in order to obtain a stay, an applicant must show a prima facie right to review‘. We submit that the SABC is unable to show that it has a ~ prima facie right to review in circumstances where more than two years have passed since the decision it seeks to review and where it showed by its conduct that it had elected not to pursue a 5 In summary, it is submitted that the prospects of success of the review application are weak and that on that basis alone, the stay of the main ht not to be granted. application ou 6 __ The Public Protector has chosen to abide this application but has placed an affidavit and these submissions before this Court, which address only * SABC Heads of Argument para 5.2 and para 8 pgs 4 and 6the issue of why the review of a decision of the Public Protector at this stage of events, is impermissible. We therefore do not address the substantive merits or otherwise of the grounds of review set out by the SABC in its heads of argument. Nor do we address the general principles relevant to the granting of a stay application. However, for the sake of clarity, we note that the remedial action taken in the Report was not limited merely to sanction and was never intended to be interpreted in that manner. The premise for the SABC’s review of the Report is therefore misconceived. In these submissions, we therefore address the following issues in turn. 7.1 The obligation to implement or review a decision of the Public Protector; 7.2 The unreasonable delay in the review; 7.3 The waiver by the SABC of its right to review; 7.4 The practical effect of the relief sought; and 7.5 The Public Protector's participation in these proceedings.THE OBLIGATION TO IMPLEMENT OR REVIEW A DECISION OF THE PUBLIC PROTECTOR 10 It is now settled that a decision of the Public Protector is legally binding and enforceable until set aside by a court of law. It was therefore necessary for the SABC to implement the remedial action or to review the findings and remedial action in a court. Although the SABC contends that until the Nkandla judgment, it was not aware that this was the state of the law, we submit that it was clear not only from the general principles applicable to administrative law but also from the judgment of the SCA in SABC and Others v Democratic Alliance and Others 2016 (2) SA 22 (SCA) at para 52 (‘the SCA judgment’). In the seminal case of Qudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004(6) SA 222 (SCA) at para 26-27, the SCA reaffirmed the principle in our law that an invalid administrative act is valid and binding until set aside by a court. The SCA went on to hold at para 37 of Oudekraal that the state has a particular responsibility to take action to set aside an_ invalid administrative act “And this case illustrates a further aspect of the rule of law, which is that a public authority cannot justify a refusal on its part to perform a public duty by relying, without more, on the invalidity of the originating administrative act: it is required to take action to have it set aside and not simply to ignore it”1 12 13 ‘The SABC has itself in the review application accepted that the decision of the Public Protector is administrative action.° If that is so, then there can be no explanation for its failure to review what it considered to be an invalid administrative act. Moreover, in MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC) at para 65, Cameron J, on behalf of the Constitutional Court reiterated that it was not open to government to ‘take shortcuts” but that it had to act to set aside an invalid administrative act. “Government should not be allowed to take shortcuts. Generally, this means that government must apply formally to set aside the decision. Once the subject has relied on a decision, government cannot, barring specific statutory authority, simply ignore what it has done. The decision, despite being defective, may have consequences that make it undesirable or even impossible to set it aside. That demands a proper process, in which alll factors for and against are properly weighed.” In the application launched by the SABC to review and set aside the Public Protector's report, the SABC refers to the fact that the Nkandla judgment clarified what its obligations were in respect of the remedial action taken in the Report. However, as is clear from the dicta in the SCA appeal judgment in this case, as well as Oudekraal and Kirland, it was always clear that the SABC was required to review the report of the Public Protector, or to implement the findings thereof. The Nkandla * Founding Affidavit, Review application para 26, p2214 judgment merely confirmed what was already an established principle.® Notably, the SABC provides no explanation as to why it did not seek to review the Report after the SCA judgment. THE TIME FOR REVIEW HAS LAPSED 15 16 17 It is submitted that the findings and remedial action of the Public Protector constitute administrative action, as contemplated by PAJA The SABC accepts that this is so — as is clear from the founding affidavit in the review application’. As such the Public Protector’s findings and remedial action are subject to judicial review in terms of section 6 read with section 7 of PAJA, without unreasonable delay and within 180 days of the date upon which the SABC became aware of the decision. The Report was issued on 17 February 2014 and a copy was provided to the SABC.® The 180 day period therefore expired in or about August 2014. A period of more than two years has passed without the SABC giving any indication that it intended to review the Report — in circumstances where the SABC was engaged in litigation concerning the Report and its implementation and in circumstances where it had many ® at para 68-73 7 Founding Affidavit, Review application para 26, p22 ° PP Answering Affidavit, para 1518 19 20 ‘opportunities to do so, The SABC could have sought to review the Report after the judgment of the SCA was handed down. Instead of reviewing the Report, it sought to appeal the SCA judgment to the Constitutional Court and then subsequently withdraw that application and implement the decision. It is therefore submitted that the SABC is precluded from seeking to review the Report some two years later on the grounds of unreasonable delay, THE LAW ON UNREASONABLE DELAY IN INSTITUTING REVIEW PROCEEDINGS 24 22 Section 7(1) of PAJA, provides that any proceedings for judicial review must be instituted without unreasonable delay and not later than 180 days after the date on which the person concerned was informed of the administrative action and reasons. We emphasize that the 180 day and “no unreasonable delay" requirements are cumulative. Thus the SABC must show that it satisfied both requirements. The rationale for the rule requiring reviews to be brought within a reasonable time is twofold: 22.1 First, the failure to bring a review within a reasonable time may 10cause prejudice to the Respondents.° 22.2 Second, there is a public interest in finality with respect to the status of administrative acts. In this regard the South African Appellate Division stated the following in the leading case of ipaliteit van Kaapstad :'° Wolgroeiers Afsiaers (Edms) Bok v Mu “Dit is wenslik en van belang dat finalitelt in verband met geregtelike en administratiewe beslissings of handelinge bine redelike tyd bereik word. Dit kan teen die regspleging en die openbare belang strek om toe te lat dat sodanige beslissings of handelinge na tydsverloop van onredelike lang duur tersyde gestel word - interest reipublicae ut sit finis sitiurn.""" 23 More recently in Cape Town City v South African National Roads Agency and Others 2015 (6) SA 535 (WCC) at para 13, the Western Cape High Court held: “Any person who wants to have an administrative decision set aside on judicial review must institute proceedings within a reasonable time. This is because there is a public interest in the certainty and finality of administrative decisions. It would ordinarily be inimical to good governance and the positions of third parties who might have ordered their affairs with reference to the decisions of public bodies if the courts entertained applications for the judicial review of such decisions in proceedings instituted after an unreasonable delay. Under the common law the courts entertained * Oudekraal Estates (Ply) Lid v Gity of Cape Town and others 2010 (1) SA 333 (SCA) at para 33; Wolgroeiers Afsiaers (Edms) Bpk v Munisipalitelt van Kaapstad 1978 (1) SA 13 (A) at 41 #978 (1) $A 13 (A) at AIO ™ See also Qudekraa! at para 33; Gqwetha v Transke/ Development Corporation Lid and others 2006 (2) SA 603 (SCA) at para 22 1"applications for judicial review that had been instituted after an unreasonable delay only exceptionally, and only when they considered the interests of justice required them to condone or overlook the delay. The principle that informs these considerations at common law is colloquially referred to as ‘the delay rule. The rule has been described as a manifestation of ‘sound judicial policy’. Thus, if a challenge is not mounted timeously, an unlawful decision may in a practical sense be validated by delay."”” 24 From the Wolgroeiers case and the decisions that have followed it, the following principles may be identified 24.4 24.2 24.3 It is for the Applicant to persuade a Court that it has not delayed unreasonably in bringing review proceedings. Thus, the Applicant is expected to address questions of delay in its founding affidavit,"* and, where it does not do so, even in the absence of a complaint from the Respondent, the Court may mero motu call upon the Applicant to justify its delay." The question of whether the review proceedings have been brought within a reasonable time is a question of fact, which will depend on the circumstances of the case."* In assessing the unreasonableness of a delay one quantifies the delay with reference to what a reasonable litigant in the position of the Applicant would have done. In particular, the Applicant is not " Opposition to Urban Tolling Alliance and Others v South African National Roads Agency Ltd) and Others [2013] 4 All SA 639 (SCA) para 26,; Hamaker v Minister of the Interior 1965 () SA 372 (C) at 381C.” ‘Lion Match Co Lid v Paper Printing Wood & Allied Workers Union and Others 2001 (4) SA 149 (SCA). Wolgroeiers at 36A-B. ' Wolgrosiers at 42C - D, 12allowed to gain the benefit of his or her own supine attitude. ® 24.4 Ifa court finds that the proceedings have not been initiated within a reasonable time, it has a discretion to condone the delay.” 24.5 In exercising this discretion, prejudice to the respondent is an important consideration. "* 24.6 Prejudice, is however, not the only consideration. Even in circumstances where a respondent has suffered no prejudice by the delay of the Appeliant, a court may decline to entertain a review application which has not been brought within a reasonable time. 24.7 Finally, regard must be had to the prospect of anything meaningful being achieved by the applicant's review application even if it were to be successful.”? 25 In this case, the SABC has provided very little evidence of why it delayed unreasonably, other than to say that the Nkandla judgment gave it pause to consider whether to launch a review.*" For the reasons set out above, this is not sufficient reason to justify the delay. At a minimum, the SABC ought to have brought the review after the SCA “* associated institutions Pension Fund v Van Zyl 2005 (2) SA 202 (SCA) paras 48to 52. ” Wolgroeiers at 39B-D, “8 Wolgroeiers at 39-410, Yuen v Minister of Home Affairs and Another 1998 (1) SA 958 (C) at 868H-J,, No explanation is provided for why the SABC did not seek the review 19 Woigroeiers) at 396-410 *" See Gqwetha v Transkei Development Corporation Ltd and others 2006 (2) SA 603 (SCA) at paras 34.35, * Founding Affidavit, review application para 47.6 p36 1326 27 28 judgment confirmed that it was entitled to implement or review the Report and not to second guess it. No explanation is provided for why the SABC did not seek the review of the Report after the SCA judgment, As stated above, section 7(1) of PAJA requires an applicant to show both 26.1 that it has not delayed unreasonably before bringing a review application, and 26.2 that it has instituted its review proceedings within 180 days of being informed of the reasons for the decision it seeks to review and set aside. In the present case, the SABC has satisfied neither of these requirements. 27.1. The Report was issued on 17 February 2014 and a copy of the Report was provided to the SABC around the same time. Therefore, the 180-day period afforded by PAJA to the SABC to seek judicial review, expired in or about August 2015. 27.2 Therefore, more than two years has passed since the SABC received the Report - a period during which it has been involved in a series of litigation with the Democratic Alliance and in which it has not once raised its intention to seek to review the Report In the circumstances, the SABC has delayed unreasonably - a delay 14which ought not to be condoned. Legality and the applicable time periods 29 30 31 In the event that this Court is of the view that the decision of the Public Protector does not constitute administrative action, we point out that a common law or legality review is also subject to time restrictions and must be brought within a reasonable time from the date on which the Report was issued or the SABC became aware of the decision”. Two years is far in excess of a reasonable period of time for the bringing of a review. This is more particularly so in circumstances where the SABC has been involved in litigation concerning the Report for much of that two-year period. Moreover, itis trite that an invalid administrative act is valid until set aside by a court Our law is also clear that it is not open to an organ of state to delay in challenging what it thinks is an invalid administrative act. The SABC did not review the Report until the DA sought to review the lawfulness of the disciplinary proceedings which cleared Mr. Motsoeneng. It is precluded by the lapse of an unreasonable period of time, from doing so. ® Cape Town City v South African National Roads Agency and Others at para 13; Lion Match Co Ltd v Paper Printing Wood & Allied Workers Union 2001 (4) SA 149 (SCA) at para 25, 15THE SABC HAS WAIVED ITS RIGHT TO REVIEW 32 In addition to the arguments above, it is submitted that the SABC has effectively waived its right to review the Report by virtue of its conduct in relation to the remedial action taken in the Report. This is clear from the following”. 32.1 32.2 32.3 Initially, the SABC failed to implement the remedial action taken in the Report. Then on 7 July 2014, instead of implementing the remedial action, the SABC resolved to appoint Mr. Motsoeneng as permanent COO of the SABC. In response, the DA applied to the Western Cape High Court to set aside Mr. Motsceneng's appointment The SABC still did not seek to implement or review the Report Instead, it simply filed answering affidavits in which it sought to discredit the Public Protector and undermine the effectiveness of the Institution. During the hearing of the DA’s appeal against the judgment of Schippers J, in the SCA, the SABC conceded that it was required to comply with the remedial action taken in the Report and to institute disciplinary proceedings against Mr. Motsoeneng. * Public Protector's AA, para 20 1632.4 The SCA judgment, delivered on 8 October 2015, confirmed that the findings and remedial action taken by the Public Protector are binding and enforceable until set aside on review by a court and that the SABC had agreed to institute disciplinary proceedings. 32.5 The SABC subsequently instituted disciplinary proceedings against Mr. Motsoeneng on or about 12 October 2015, On 12 December 2015, Mr. Motsoeneng was cleared of all charges. 32.6. In instituting the disciplinary proceedings, the SABC elected to implement the remedial action taken in the Report. This indicates an intention on the part of the SABC to abandon its right to review the Report. This is further clear from the implementation report submitted by the SABC to the Public Protector, which is attached to the Public Protectors answering affidavit in the main application. The implementation report makes clear that the SABC intended to implement the remedial action, rather than review the decision. This is clear from the fact that the Report refers to steps taken by the SABC in response to the Public Protector’s Report as ‘implementation plan/corrective actions.” Moreover, the implementation report notes that the SABC considered each of the remedial actions taken and how to give effect to such remedial action. 33 Our law is clear that the waiver of a right is evidenced by the outward manifestations of the right holder's intention. More specifically, in the context of the right to review, our courts have held that where a party 7has acted in a manner inconsistent with the continued existence of a Tight to review and consistent with the intention of waiving such a right, a court will accept that there has been a tacit waiver or abandonment of such right and the party concerned is preempted from relying on a right to review.™* 34 In general terms, it is a settled principle in our law that once a party complies with or accepts through his conduct, a judgment or order, he/she is perempted from appealing against the judgment or order. In Gentiruco AG v Firestone SA (Pty) Ltd 1972(1) SA 589 (A) at 600A-B, the Appellate Division held “The right of an unsuccessful litigant to appeal against an adverse judgment or order is said to be perempted if he, by unequivocal conduct inconsistent with an intention to appeal, shows that he acquiesces in the judgment or order.*5" 35 Our law is also clear that waiver is never presumed in the absence of facts showing an intention to waive.” 36 While the doctrine of peremption applies generally to the decision not to appeal a judgment, we submit the doctrine applies with equal force to the present facts. 37 The SABC has made clear through its choice to institute disciplinary * Liberty Life v Kachelhoffer NO and Others 2001 (3) SA 1094 at 1111-1112. Bayview (Pty) Ld v Director of Valuations and Another 1989 (1) SA 999 (C) at a para 2 See also Standard Bank v Estate Van Rhyn 1925 AD 266 at 268. * Laws v Rutherford 1924 AD 261 at 263 1838 39 proceedings against Mr. Motsoeneng, that it elected to implement the remedial action in the Report. Its implementation may have been lacking but it nonetheless evidences an intention on the part of the SABC to waive its right to review the Report It is notable that at no point during the series of court applications between the parties concerning the obligations of the Minister and the SABC in relation to the Report, did the SABC once indicate any intention to review the Report. It only did so when the DA brought its application to review the disciplinary proceedings against Mr. Motsoeneng. In the circumstances, it is clear that the SABC waived its right to review and is precluded from seeking to assert that right now. THE PRACTICAL EFFECT OF THE RELIEF SOUGHT 40 4 A finding by a court which entitles a party to conduct itself in the manner in which the SABC has done in this case, will have ramifications for virtually all the Reports issued by the Public Protector in which the parties have not sought to review the Report in the first instance”. The SABC is not correct when it states that the relief sought in this case will not have an effect on other cases because the Nkandla judgment made clear that a report of the Public Protector must be implemented or 7” Public Protector’s AA, para 26 1942 43 45 reviewed. As we set out above, the law in this regard was clear when the Report was issued and this was reinforced by the SCA in its judgment in October 2015. Therefore, the SABC was aware or ought to have been aware that it was required to review or implement the Report from at least October last year. If a party against whom remedial action is taken is entitled to attempt to implement the remedial action and then if he is unsuccessful, to review the Report instead, it would undermine the effectiveness and importance of the findings made by the Public Protector. This theme that the effectiveness of the Public Protector must be protected, runs throughout the Nkandla judgment”. An organ of state is required to act promptly and lawfully in response to a report by the Public Protector in which remedial action is taken against it or its officials. It will undermine the effectiveness of the Public Protector if an organ of state is permitted to prevent or delay implementation of the Public Protection's findings and remedial action by inaction, or, by paying lip service to its compliance and only half- heartedly complying; or by means of a collateral (or quasi collateral) challenge. In this matter the SABC and the Minister have not acted promptly in at paras 49, 84, 72-75 20either complying or challenging the Public Protector's report on review. Such conduct, in undermining the effectiveness of the Public Protector’s office, is unlawful and unconstitutional. THE PUBLIC PROTECTOR’S PARTICIPATION IN THESE PROCEEDINGS 46 aT The Public Protector’s participation in these proceedings, is not, as the SABC has stated, to “make common cause” with the DA”, The Public Protector's participation in these proceedings is not to make common cause with any of the parties. It is instead, to ensure that this Court has. the benefit of her input in circumstances where the relief sought by the SABC will have the effect of delaying compliance with her Report and will permit other parties in future to undermine the effectiveness of the institution by delaying compliance and attempting review where implementation has been insufficient. We also point out that neither the SCA nor the Constitutional Court has questioned this course of action in either of the cases in which the Public Protector has been cited as a Respondent and has abided and filed substantive affidavits®. This is recognition, we submit, of the unique role that the Public Protector, as a Chapter 9 institution plays in assisting the Court in adjudicating the relevant disputes in which the Public Protector has a direct interest, 2 Replying Affidavit para 24.1 p12 %° SABC and Others v Democratic Alliance and Others 2016 (2) SA 522 (SCA) and Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v ‘Speaker of the National Assembly and Others [2016] ZACC 11 21costs 48 49 The Public Protector does not seek costs from the SABC in this application, The Public Protector has been cited as a Respondent and has been required to participate in these proceedings for the interest she has in the implantation of her Report. Moreover, the Public Protector has adopted a limited role in these proceedings, confining her ‘submissions to the issues identified at the outset in these submissions. We submit that in such circumstances it would be inappropriate to award costs against the Public Protector. Moreover, our courts have been reluctant to award costs of one organ of state against another." CONCLUSION 50 For all the reasons set out above, we submit that the prospects of success of the SABC’s review of the Report are weak. Therefore, there is no basis for this Court to stay the main application pending the finalization of the review, in circumstances where the review is likely to be dismissed on a point in imine. Etienne Labuschagne SC ° Minister of Defence and Miltary Veterans v Motau and Others 2014(5) SA 69(CC) at para 92. See also: City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (6) SA 182 (CC) (2010 (8) BCLR 859; [2010] ZACC 11) para 94 22Nasreen Rajab-Budlender Chambers, Pretoria. and Sandton 6 June 2016 23Se the doj&cd Bepanment Sadtice and Constitutional Development Repuptic OF SOUTH AFRICA NATIONAL ASSEMBLY QUESTION FOR WRITTEN REPLY PARLIAMENTARY QUESTION NO: 1641 DATE QUESTION: 27 MAY /2016 DATE OF SUBMISSION: 07 JUNE 2016 Adv A de W Alberts (FF Plus) to ask the Minister of Justice and Correctional Services:+ 1) What is the real reason that the National Prosecuting Authority (NPA) has decided to ‘appeal against the finding of the High Court, in which it was found that the decision of the NPA to suspend the prosecution of the President, Mr Jacob G Zuma, in terms of the 783 charges of gangsterism, corruption and fraud, had been irrational; 2) why is the NPA not giving the President an opportunity to answer to the charges in a criminal court; 3) whether the NPA when they decided to appeal took into consideration the judgment of the Supreme Court of Appeal in the case National Director of Public Prosecutions v Zuma (2009), where the finding of Judge Nicholson was rejected, and the findings of the Constitutional Court in the case Albutt v Centre for the Study of Violence and Reconciliation and Others (2010) and the case Democratic Alliance v President of the Republic of South Africa and Others (2011); if not, why not; if so, (a) why is the NPA then persisting with an appeal when the margin for success is slim and (b) whether the NPA cannot therefore face prosecuting the President? NW1811E 1[PageAs a matter of logic, there seems to be no reason why the head of the prosecuting service may not take it upon himself to determine that the abuse was so egregious as to warrant discontinuation, even in the absence of a direct causal nexus between the abuse and the prospects of a fair trial. In fact, the NDPP has taken an oath to protect and defend the Constitution. His duty is to protect the institutional integrity of the institution. He is best positioned to weigh the seriousness of abuse within his own hierarchy. If, as in this matter, the NDPP misconducts himself in the internal review of prosecution, it is always open for the matter to be taken on review. Itis a trite principle that a prosecutor is vested with a very broad discretion. The public interest must always factor in his determinations — to the extent that it is not obligatory that every person he considers guilty must be charged. In argument on behalf of the First and Second Respondents, reference was made to Regina (Corner House Research & Another) v Director of the Serious Fraud Office [2008] 3 WLR 568. One finds reference to the principle that there is no rule that criminal offences must automatically be the subject of prosecution. In line with the principles of the common law, there is no principle of compulsory prosecution: prosecutors always have discretion whether or not to institute a prosecution and, if so for which offence. It is emphasised that in the present case, the senior management of the NPA formed the view that it was not in the public interest to proceed with the prosecution in light of the conduct of Mr McCarthy. It would be artificial and make no sense for the prosecutor who has formed the view that the prosecution should not be proceeded with, to wait for the accused to bring an application to stay the prosecution and to then acquiesce. In the second ground of appeal, the Court found that the envisaged prosecution against Mr Zuma was not tainted by the allegations against Mr McCarthy. In this regard, the NPA submitted that the Court should have found that the prosecutorial process was tainted and that it was not irrational to decide to discontinue the prosecution. The Court 3|Pagetherefore do not intend to deal in depth with those three grounds. | will focus on the fourth ground which | consider to be the most pertinent for purposes of my decision ...” In this regard the NPA submitted that itis therefore clear that Mr Mpshe did consider the merits. But for the manipulation of the process, the prosecution would have continued on the merits. Mr Mpshe made it clear that he considered that the public interest factor outweighed the continued prosecution of Mr Zuma, notwithstanding that the prosecutors felt firmly about the merits of the case. It needs to be emphasized that the NDPP is vested with a discretion which is his alone to exercise provided he is not mala fide. Even if his decision is not one which someone else or the Court would have taken, and even if it was unreasonable, it is not a basis to set it aside, absent irrationality. In R v Latif, supra, 112 F, Lord Steyn said: “it is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system". The Court found that once Mr Mpshe had said the alleged conduct of Mr McCarthy had not affected the merits of the charges against Mr Zuma, cadit quaestio, there was no rational connection between the need to protect the integrity of the NPA and the decision to discontinue the prosecution against Mr Zuma. In this regard, the NPA submitted that the Court erred. The NPA further submitted that where the rule of law is undermined, it may be rational to stop the prosecution. 5|Page‘and maintain the integrity and independence of the prosecution authority than to pursue the conviction of a single individual, no matter how prominent. «The main reason for opposing the application was that Mr McCarthy unduly influenced and interfered with the service of the indictment for political reasons. This found its way into Mr Mpshe's address to the media on 6 April 2009, when he referred to Messrs McCarthy and Ngcuka having manipulated the timing of the envisaged service of the indictment to Mr Zuma for political reasons. «Far from being, as erroneously found by the Court a quo to be, the essence of the case of the First and Second Respondents, the Browse Mole report was simply evidence to demonstrate that Mr McCarthy had for some time followed an agenda to besmirch Mr Zuma, with a view to cementing the position of Mr Mbeki. It is emphasized that it was Mr McCarthy who instituted an investigation against Mr Zuma in terms of section 28(1)(a) of the NPA Act. The Browse Mole report simply demonstrated the unethical conduct of Mr McCarthy. In so far as the fifth ground of appeal is concerned, the NPA submitted that the Court erred in finding that the form of censure Mr Mpshe chose, by discontinuing the prosecution, failed to demonstrate a connection or linkage to the alleged conduct of Mr McCarthy. The principle of legality requires that the exercise of public power must be rationally related to the purpose for which the power was given. Mr Mpshe, as the Acting NDPP, had the power to discontinue the prosecution. The NPA submitted that the Court erred in finding that he did not. His decision was indeed rationally related to the purpose for which the power was conferred. The purpose of that power in this context may be to guard against manipulation, and ensure that all persons who are the subject of a prosecution, are dealt with in a manner which is fair, and by an independent authority not subored or manipulated for political needs; further that the prosecution process is not in any way manipulated for an extraneous purpose unconnected to the actual prosecution. The NPA accordingly submitted that this establishes the link required for rationality. The aforementioned must be seen in the light of the Court's finding that the 7\Pagedisadvantage Mr Mbeki if the NPA did not hold back. It was against this background that Mr Mpshe decided that Mr Zuma’s continued prosecution would be untenable. The NPA, as any other litigant, has the right to appeal the decision of any judicial proceedings. In this matter, the NPA believes it has reasonable prospects of succeeding the prosecution of its appeal. Therefore, it is incorrect that his Excellency, the Honourable President of the Republic had at any stage faced charges of gangsterism as contended by the Honourable member. All charges of corruption were withdrawn against the Honourable President prior to being elected as President of the Republic. 9|Page