ig IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA 2018 px. 22 CASENO: 1957772009 6 -05- 22 { _ OFFICE OF Tae ae DEMOCRATIC ALLIANCE APPLICANT In the matter between: and ACTING NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS FIRST RESPONDENT THE HEAD OF THE DIRECTORATE OF SPECIAL OPERATIONS SECOND RESPONDENT JACOB GEDLEYIHLEKISA ZUMA THIRD RESPONDENT THE SOCIETY FOR THE PROTECTION OF OUR CONSTITUTION AMICUS CURIAE FILING NOTICE KINDLY TAKE NOTICE THAT the 3° Respondent files its notice of application for leave to appeal evenly herewith.To: AND TO: AND TO: AND TO: 3° RESPORDENTS ATTORNEYS HULLEY & ASSOCIATES INC 12™ Floor, The Forum 2 Maude Street, Sandton (Ref: COLLINS/mh/Z060) clo F VALLEY ATTORNEYS 418 Standard Bank Chambers 12 Paul Kruger Street ‘Church Square PRETORIA REGISTRAR OF THE HIGH COURT PRETORIA MINDE SHAPRIO & SMITH APPLICANT'S ATTORNEYS Tygorvalley office park bullding no. 2 cnr old oak 7 Willie van Schoor road ‘Tygervalley CIO KLAGSBRUN EDELSTEIN BO: 20 lange streat Nieuw Mucleneuk Pretoria | tel: 012 452 8900 | 2018 -05- 23 i fax: 012 452 8901 | yet REF.: ANISHA JOGI/DM994 | qe oo) | AN.DE VRIES INE: THE STATE ATTORNEY Attomneys for the First and Second Respondents. ATE ATTO! ‘SULA Building PRIVATE BAG/PRIVAATSAK X31 316 Thabo Sehume Street PRETORIA 2016 -05- 23 (Ref: G P Seleka/M E Ngoatjana/2295/2009/Z65}| oy. VAY STAATSPROKUREUR ZEHIR OMAR ATTORNEYSApplicant's attorneys (as amicus curiae) clo Friedland Hart Solomon Nicolson Atiomeys 4-301 monument office park 79 steenbok street monument park pretoria (REF: T V STRAATEN/nm/327276) WO. op oale| 0b ecana «IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 19577/2009 In the matter between: DEMOCRATIC ALLIANCE APPLICANT ACTING NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS FIRST RESPONDENT THE HEAD OF THE DIRECTORATE OF SPECIAL OPERATIONS SECOND RESPONDENT JACOB GEDLEYIHLEKISA ZUMA. THIRD RESPONDENT ‘THE SOCIETY FOR THE PROTECTION OF OUR CONSTITUTION AMICUS CURIAE ‘THIRD RESPONDENT’S NOTICE OF APPLICATION FOR LEAVE TO APPEAL BE PLEASED TO TAKE NOTICE that the third respondent intends applying on a date to be arranged with the Registrar of this Honourable Court for leave to appeal to the Supreme Court of Appeal against the whole of the judgment and the order of the Honourable Justices Ledwaba DIP, Pretorius J and Mothle J, delivered and made on 29 April 2016.age 2 TAKE NOTICE FURTHER that the grounds on which the application is based are the following: 1 ‘The Court erred as a matter of law in the following material respects: 1d 12 In its interpretation and application of the case law relating to rationality as ground for a legality challenge. In holding that: 1.24 1.2.2 The National Director of Public Prosecutions (*NDPP”) is not entitled to terminate a prosecution on the basis of prosecutorial misconduct and the abuse of the prosecutorial process (referred to hereafter as “abuse of process”); Where allegations of abuse of process are made, the NDPP is obliged to continue with the prosecution and require the Court to make a decision as to whether the prosecution should be terminated (as opposed to taking a decision to terminate the prosecution on the basis of such conduct).13 14 15 In conflating the respective roles of the NDPP and the Courts in circumstances where allegations of abuse of process are made. In its interpretation and application of the foreign authorities, including HKSAR v Lee Ming Tee and R v Latif. 1.5.1 finding that the authorities referred to by the respondents did not support Mr Mpshe’s decision. 1.5.2 finding that Mr Mpshe’s decision did not meet the test for rationality. 1.5.3. holding that Mr Mpshe’s failure to refer the abuse of process allegations to the Court rendered his decision irrational. 1.5.4 failing to hold that abuse of process can justify a decision by the NDPP to the discontinue a prosecution, even in instances where the conduct does not directly bear upon the merits of the charges (where the integrity of the process has been compromised).The Court erred in its evaluation of the evidence placed before it by the respondents in the following material respects: 21 2.2 23 2.4 In failing to accept the third respondent's allegations, and the allegations of the NDPP, which were undisputed, or not meaningfully disputed by the applicant. In failing to apply the Plascon-Evans test in relation to the disputes of facts on the papers and, as a consequence of such failure, in rejecting the evidence of the respondents on the papers. In finding, in relation to Mr Mpshe personally: 2.3.1 Disingenuity on his part; 2.3.2 Deliberate conduct on his part to exclude the prosecution team and the Director of Public Prosecutions, KwaZulu-Natal from the decision. 2.3.3 That he had acted in a secret manner. In finding that Mr Mpshe’s decision’ was a consequence of his (subjective) feelings of anger and betrayal and that those feelings caused him to act impulsively and irrationally.25 2.6 27 2.8 2.9 In finding that Mr Mpshe was subjected to undue pressure which deprived him of the time and space to properly apply his mind to the matter. In reasoning that Mr Mpshe’s statement on 6 April 2009 constituted all of the reasons for deciding to terminate the prosecution (and failing to give any or appropriate weight to the previous events and other undisputed evidence, including the Browse Mole Report) In failing to find that the allegations against Mr McCarthy in the transcript of the recorded conversations and his role in the Browse Mole Report had been proved by the respondents alternatively that the respondents’ allegations in that regard had to be accepted on the Plascon-Evans test. In finding that Mr Mpshe advanced new and contradictory explanations. In holding that Mr Mpshe was obliged to request the views of other members of. the NPA before taking a decision, finding that he failed to do so and finding that such failure to “source” the views of other NPA members was irrational.3. ‘The Court erred as matters of fact and law in: 31 32 33 Accepting that the Browse Mole Report revealed an unofficial attempt to besmirch the person and integrity of the third respondent, but failing to conclude on the available evidence that the Report compromised the fairness and integrity of the prosecution process entitling the NDPP to terminate the prosecution. Accepting that the charges were formally withdrawn against the third respondent on 8 April 2009 before the KwaZulu-Natal High Court, but thereafter rejecting the third respondents assertion that the relief sought by the applicants would be of no consequence and concluding that the third respondent should face those charges. Accepting that, in deference to the doctrine of separation of powers it is inappropriate for a Court hearing an application to review a decision to prosecute, upon deciding to set aside the decision, to step into the shoes of the prosecution, but failing, upon its finding that the decision of the first respondent was irrational (which is not accepted) to refer the matter back to the NDPP for reconsideration.3.4 Inholding that, since Mr McCarthy’s alleged conduct was intended to delay the service of the indictment on the third respondent until after the Polokwane Conference, the third respondent would not have been disadvantaged, and failing to hold that the act of influencing the process itself compromised the prosecution. 3.5 In finding that the Browse Mole Report was immaterial to the first respondent's, decision and that there is no rational link between Mr McCarthy’s conduct and the first respondent's decision to discontinue the prosecution, In attaching no weight to the affidavit evidence of Mr McCarthy to a High Court that the prosecution process was of the highest integrity when he was fully aware that the DSO was and had been engaged in an illegal investigation into the general conduct of the third respondent. 3.7 In upholding the application with costs. The appeal has reasonable prospects of success.‘The appeal raises important issues of law and fact including, inter alia: 5.1 52 53 34 58 The nature and extent of the power and discretion of the NDPP to terminate a Prosecution in instances of prosecutorial misconduct and abuse of prosecutorial power. ‘The power of the Court to review and set aside, under the principle of legality, a decision of the NDPP to terminate the prosecution on grounds of prosecutorial misconduct and abuse of prosecutorial power. The nature and extent of a Court’s discretion in relation to the appropriate remedy in matters in which a Court decides to review and set aside the NDPP*s decision to terminate a prosecution on grounds of prosecutorial misconduct and abuse of process. The proper interpretation of the NPA Act, 1998, the Prosecutorial Policy Regulations and other legal instruments relating thereto, as well as the case law, relating to the powers of the NDPP to terminate a prosecution on the basis of abuse of process and the consequences thereof. The effect of setting aside a decision to terminate a prosecution where the charges were formally withdrawn before a Court after the decision was taken,6. The matters sought to be raised on appeal: 6.1 Raise public interest issues deserving of the attention of the Supreme Court of Appeal. 6.2 Are of considerable importance to the third respondent. 6.3 Require determination by the SCA for the purpose of providing certainty in regard to the nature and extent of the first respondent's powers to discontinue a prosecution and the consequences thereof. 7. Leave to appeal to the Supreme Court of Appeal is accordingly merited and should be granted. The costs of the application for leave to appeal should be costs in the cause, DATED AT JOHANNESBURG ON THIS DAY OF MAY 2016.10 HULLEY & ASSOCIATES INC THIRD RESPONDENT'S ATTORNEYS. C/O F VALLEY ATTORNEYS 418 STANDARD BANK CHAMBERS 12 PAUL KRUGER STREET CHURCH SQUARE PRETORIA (REF: Y LANDSBERG) TO: THE REGISTRAR OF THE HIGH COURT PRETORIA AND TO: —MINDE SCHAPIRO & SMITH ATTORNEYS APPLICANT’S ATTORNEYS (MAIN APPLICATION) C/O KLAGSBRUN EDELSTEIN BOSMAN DE VRIES INC 220/2 LANGE STREET NEW MUCKLENEUK PRETORIA (REF: H STRUWIG/RN/DM994)1 AND TO: AND TO: ZEHIR OMAR ATTORNEYS APPLICANT'S ATTORNEYS (AS AMICUS CURIAE) C/O FRIEDLAND HART SOLOMON NICOLSON ATTORNEYS 4-301 MONUMENT OFFICE PARK 79 STEENBOK STREET MONUMENT PARK PRETORIA (REF: T V STRAATEN/nm/327276) THE STATE ATTORNEY FIRST AND SECOND RESPONDENT'S ATTORNEYS SULA BUILDING 316 THABO SEHUME STREET PRETORIA (REF: G P SELEKA/ M E NGOATJANA/2295/2009/Z65