The Supreme Court of Appeal has been asked to follow a broad approach to give the DA legal standing to get records from the National Prosecuting Authority (NPA).
Sean Rosenberg, for the Democratic Alliance, was arguing an appeal application on Wednesday for records that led to corruption charges against President Jacob Zuma being dropped in 2009.
The high court held previously that the DA had not shown that its rights, that of its members, or the broader public’s, had been adversely affected by the NPA’s decision not to prosecute Zuma.
Rosenberg submitted that the high court had followed a narrow course in its decision on the rights, which was not in line with decisions in the Constitutional Court.
The opposition party wants a review of the decision, taken by the then acting national director of public prosecutions Mokotedi Mpshe, to drop charges against Zuma, who at the time had not yet been elected president.
The DA further called on the NPA to produce the record of proceedings on its decision.
Rosenberg denied the DA was acting in a “perceived” public interest, as claimed by the NPA. Rosenberg submitted the party could act in its own, and the public’s interest. He argued there was no other way in taking a decision such as Mpshe’s on review, but through the courts.
Floodgate of litigation
Rosenberg agreed with the bench of five judges that every citizen could not take every possible public interest matter to court as this would open a floodgate of litigation.
He agreed that consideration should only be given to issues of “grave public importance”. However, he argued there was a right in the Constitution to “proper prosecutions” in the public interest.
He said the NPA’s contention that the record required was too vast was wrong.
“The NPA’s decision it seems, was based on tapes.”
Rosenberg said the DA wanted the “reduced record” on which its decision to drop the case against Zuma was based. The NPA could not withhold this just because other documents were confidential.
Paul Kennedy, for the acting director of public prosecutions, said the NPA had a right to question the DA’s standing in the matter.
The judges wanted to know why the NPA had acted in the “peculiar way” of raising other issues not pertaining to the records sought.
Kennedy submitted the Zuma records were a highly unusual case involving “highly controversial information”, which justified the NPA’s questioning the DA’s right to access.
He said confidential information formed a fundamental part of the record sought by the DA.
Kennedy submitted the DA was not directly affected by the decision not to continue with Zuma’s prosecution. This included its members and any member of the public.
The matter continues. — Sapa