The NPA has filed papers at the Supreme Court of Appeal (SCA) in the long running spy tapes case involving President Jacob Zuma‚ saying the National Director of Public Prosecutions (NDPP) is the only person who has the power to discontinue the prosecution.
Absent of bad faith or intent to deceive from the part of the prosecutor‚ that power cannot be interfered with by the court.
Zuma and the NPA are appealing a Pretoria High Court decision handed down in April 2016.
The high court set aside a decision taken by then Acting National Director of Public Prosecutions Mokotedi Mpshe in April 2009 to discontinue the corruption prosecution against Zuma.
Mpshe had relied on intercepted communications between then Scorpions head Leonard McCarthy and former NDPP Bulelani Ngcuka where they discussed the timing of instituting charges against Zuma in 2007.
It was alleged that McCarthy had been instructed by Ngcuka on when to institute charges against Zuma.
Mpshe decided that the public interest in not perpetuating an abuse of process outweighed the reasons for continuing with the prosecution.
The NPA and Zuma were refused leave to appeal the judgment by the high court in June last year.
They then petitioned the Supreme Court of Appeal for leave to appeal. The appeal court agreed to hear their application in an order made in January this year.
“Central to this appeal is the separation of powers doctrine and concerns the extent to which the courts can or should interfere with the discretion vested in the NPA when regard is had to the imperative of ensuring and maintaining its independence‚” NPA advocates led by Hilton Epstein SC said in their written submissions to the SCA filed this week.
They also said the high court erred in finding that the decision by Mpshe to withdraw the charges was irrational because he did not refer the complaint of abuse to court.
They said the law did not require the NPA to refer the complaint of abuse in the prosecution process to court.
This was because the NPA had a discretion‚ on its own‚ to discontinue the prosecution.
“To do so would be an abdication of prosecutorial authority in favour of the courts‚ a boundary which should not be crossed.”
The NPA also took issue with the high court finding that “Zuma should face the charges as outlined in the indictment”.
“This finding is an inappropriate transgression of the separation of powers doctrine. In terms of the Constitution‚ the NPA has the authority mandated to prosecute crime.
In his submissions‚ Zuma said Mpshe’s decision was rational.
“Mpshe formed the view‚ based on the evidence presented to him‚ that the process had been tainted and he considered the public interest considerations to outweigh the continued prosecution of Zuma (regardless of the merits of the case)‚” Zuma’s advocates led by Kemp Kemp SC said.