AT A media conference held on Monday, the last available day for applying for leave to appeal, national director of public prosecutions (NDPP) Shaun Abrahams announced that the National Prosecuting Authority (NPA) intends to ask for leave to appeal against the high court decision to review and set aside the decision not to prosecute President Jacob Zuma.

Although Abrahams waved a copy of the 14-page application for leave to appeal at the assembled members of the media, he did not go beyond mentioning the two main arguments that will be raised by the NPA in the intended application for leave to appeal: firstly the independence of the NDPP to make the decision without “judicial interference” and secondly the question of whether the doctrine of the separation of powers was breached by the ruling of the full bench of the High Court in Pretoria.

It appears to have escaped the attention of Abrahams and those who advise him (he was coy about the identity of his advisers, but willing to say he did not deem it necessary to consult the lead prosecutor in the matter, Billy Downer) that the doctrine of legality, which is fundamental to the rule of law, requires rationality in official decision-making. All decisions made by functionaries of the state have to serve a legitimate purpose of government. Irrational decisions do not serve a legitimate purpose of government, and may be set aside on the basis of their irrationality.

This principle has been accepted by the NPA in the Richard Mdluli matter, which was only taken as far as the Supreme Court of Appeal. Why, when the scalp of the president is involved, the principle should be reconsidered is difficult to explain. When taxed with this anomaly by television journalist Karen Maugham of eNCA, Abrahams sought — after a long pause during which his expressive eyebrows gave him away — to distinguish the two matters on the facts.

There is no basis in law for so distinguishing them. If both decisions are irrational, they can both be set aside on review by the high court, irrespective of the facts to which they relate. One must assume that the advice given to the NPA is to revisit the parameters and extent of the independence of the decision-making process when charges are withdrawn with a view to suggesting that then NDPP Mokotedi Mpshe did not act irrationally when he stopped the prosecution in April 2009.

This is a difficult task. Not only was the full bench unanimous on this point, but the way in which Mpshe comported himself in arriving at the decision he took is redolent of irrationality and of succumbing to the political pressure he was under at the time. His misplaced reliance on Hong Kong jurisprudence that had been overruled on appeal by the time of the decision not to prosecute the president was taken, does nothing to bolster the rationality of the result.

Perhaps the most intractable difficulty facing those who may seek to argue that it was not irrational to withdraw the charges is the fact that Mpshe announced that the decision to prosecute in the first place was his and his alone, and that he, in fact, took the decision alone.

This disclosure in effect means that whatever discussion and dissection of the politics of the situation took place on the bugged telephone of the then head of the Scorpions, Leonard McCarthy, is actually irrelevant to what was decided because the decision was not McCarthy’s to make.

The court’s finding that the decision was irrational has no effect on the independence of the office of the NDPP. The injunction to function “without fear, favour or prejudice” stands unaffected by the finding of irrationality. (Someone should tell Abrahams that the phrase ends with the words “or prejudice” not “and prejudice”).

It is simply untenable to argue that the independent powers of the NDPP are so extensive that the courts are not entitled to review them, however irrational the decision-making of the incumbent NDPP may be in any given case.

It ought to be plain to any public servant of the seniority of Abrahams that, in a constitutional democracy under the rule of law, any conduct that is inconsistent with the Constitution is invalid and liable to be struck down if impugned by a party that is offended by the conduct. This is precisely what the DA has done in the “spy tapes” case.

It has taken the decision of Mpshe not to prosecute the president on review on the basis of its irrationality, and it has succeeded before the full bench.

The NPA has accepted that the DA has the necessary legal standing to challenge the decision made. It has also accepted, in the Mdluli case, that any irrational decision-making is vulnerable to attack. Why, in law, it should be different when the decision is about charges formulated against the president is difficult to understand. Abrahams himself was quick to point out that equality before the law is a part of the new order in SA and that he is not prepared to deviate from this principle.

The second point he mentioned in passing during the media conference was that the ruling would be attacked on the basis of the separation of powers.

While the courts are careful to defer to the other branches of government on matters that fall within their areas of expertise and spheres of activity, this does not mean that on the appropriate occasion any decision made irrationally within those areas and spheres cannot be struck down.

Such an outcome would make nonsense of the provisions of section 2 of the Constitution, which is crystal clear about conduct (this includes a decision like that of Mpshe) that is inconsistent with the Constitution. It is invalid and falls to be struck down for its inconsistency with the Constitution and the legality principle of the rule of law (which in terms of section 1 of the Constitution is regarded as supreme).

It is doubtful that the other four points, not yet in the public domain, are any more convincing than the two main points disclosed by Abrahams. The NPA will be seeking leave to appeal to the Supreme Court of Appeal, a step that will delay final determination of the matter and thereby suit the president’s “Stalingrad strategy” perfectly.

Why this procedure is being followed, especially in light of the ruling of the Supreme Court of Appeal in Mdluli’s case, is hard to explain. When asked about the delay, Abrahams took on the appearance of a goldfish out of water and those eyebrows, so well-loved by cartoonists, went into overdrive again.

It would have been so impartial and so easy for the NPA to take a neutral stance in the appeal proceedings and let the president do the running in relation to the further conduct of the litigation. An even-handed approach of this kind would have enhanced public perceptions of the independence of the NPA. Instead, Abrahams’ willingness to make common cause with the president in relation to appealing the full bench decision against both of them will cast doubt on how genuine his protestations of impartiality and independence actually are.

It is to be hoped that the further litigation of the issue will be accorded preference on the roll for hearing in all courts to which the matter finds its way.

It would also be a welcome development if the DA gives notice that it is tired of the respondents litigating at the expense of taxpayers and that it will be asking for special costs awards in the appeal, out of the personal pockets of the appellants.

Hoffman is a director of Accountability Now.

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