No matter how you look at it, Shaun Abrahams made a bad decision

When is it legitimate for a state institution to appeal an adverse order of a court? This question has again been raised after Shaun Abrahams, the national director of public prosecutions, decided to appeal the judgment of a full Bench of the high court in Pretoria that set aside then acting NDPP Mokotedi Mpshe’s decision to drop a string of charges against Jacob Zuma in 2009.

Abrahams explained his decision to appeal in some detail. Beyond the lengthy claims of his unshakable independence, he claimed that the court’s ruling held significant implications for the NDPP’s decision-making powers and, further, that for a court to tell the NDPP to continue with a prosecution crossed the line of separation of powers.

In his view both reasons fully justified recourse to a higher court. In coming to this decision he had the support of an opinion of a senior counsel or senior counsels who have not been involved in this litigation to date.

Abrahams’s announcement was met with heavy and sustained criticism by many legal experts. Regrettably, the debate was then sidelined by the controversy over the Zapiro cartoon featuring Abrahams.

Though it is important to debate racism wherever it manifests itself – hence the Zapiro cartoon deserved rigorous scrutiny – it should not create amnesia about the NDPP’s conduct.

It was important that the debate about Abrahams and his decision returned to the national agenda when that most thoughtful of columnists, Steven Friedman, argued that the NDPP was more than entitled to appeal. He said it was for a higher court to decide the validity of the appeal, as opposed to commentators who criticised Abrahams simply because they supported the merits of the high court’s decision.

In evaluating this debate, we need to consider a few issues.

First, the national directorate of prosecutions litigates on behalf of “we the people”, who fund its operations by means of taxes. Hence, it is not an ordinary litigant.

Second, this is no ordinary case: even Mpshe conceded there was substance in the charges brought, and that the case was not dropped because of a lack of merit but because of alleged undue interference in the timing of the institution of the case (involving Leonard McCarthy, then the deputy NDPP).

Third, Zuma’s lawyers have employed what has become known as a “Stalingrad defence” to slow down any resolution of the case.

The decision to appeal must also be evaluated in terms of the quality of the reasoning of the court. Briefly, the court’s approach to the applicable law is captured in the following passage from the judgment:

“The legal authorities … of which Mr Mpshe should have been aware or so advised, do not support the decision taken by him in an instance such as this one under review, where the abuse of process doctrine is applied in an extra-judicial exercise of public power, when the prosecution against an accused is discontinued. In this instance, the basis of the alleged abuse of process rested on legally untested allegations which were unrelated to the trial process and the charges. It is thus our view that Mr Mpshe, by not referring the complaint of abuse of process and the related allegations against Mr McCarthy to court, rendered his decision irrational.”

This conclusion is supported by a line of case law holding that a decision of the NDPP can be reviewed for want of legality, including the requirement that to be lawful the decision must be a rational one. In this respect, the law is settled. It is doubtful whether either of the higher courts is likely to change its position.

In turn, the argument concerning the separation of powers has no traction. In the event that a decision of the NDPP is reviewable for want of rationality, it must follow that a court is not violating the doctrine of separation of powers when it sets aside a decision by the NDPP.

It can still be argued that the court was mistaken in its application of the law to the specific facts and that, for this reason, an appeal is justified. It may be that the independent advice received by Abrahams restricted the recommendation to appeal to this confined ground. If so, Abrahams should have told the nation this. By justifying his decision on a trifling basis he called into question the independence of the National Prosecution Authority (NPA).

This case needs to be settled once and for all. For this reason, an NPA wishing to expedite closure should have approached the Constitutional Court directly and not allowed any inference to be drawn that the prosecution authority could be complicit in Stalingrad tactics by appealing to the Supreme Court of Appeal – with the possibility of yet another appeal if this court rejects its argument. It is precisely for these reasons that critics of the NPA were entitled to muse about its motives in so appealing.

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