National Director of Public Prosecutions v Zuma (8652/08) [2008] ZAKZHC 77 (22 October 2008)
- Citation
- [2008] ZAKZHC 77
- Status
- Order
- Jurisdiction
- South Africa
- Court
- High Courts - Kwazulu Natal
- Panel
- Nicholson
- Case number
- 8652/08
More details
- Court
- High Courts - Kwazulu Natal
- Panel
- Nicholson
- Case number
- 8652/08
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the application for leave to appeal raised complex and novel questions of law and fact, particularly regarding the nature of the proceedings (civil or criminal), the applicability of section 179(5)(d) of the Constitution and the National Prosecuting Authority Act, and the issue of legitimate expectation to make representations. The court also considered the challenge to findings on allegations of political interference, noting that full oral argument had not been presented on those issues. Given the public importance and the reasonable prospects of success on appeal, the court granted leave to appeal on all 16 grounds set out in the Notice of Appeal. The costs of the application were ordered to be costs in the appeal.
Court disposition
Leave to appeal granted to the Supreme Court of Appeal on all 16 grounds enumerated in the Notice of Appeal. Costs of the application to be costs in the appeal.
Orders
- Leave is granted to the National Director of Public Prosecutions to appeal to the Supreme Court of Appeal against the judgment and orders made on 12 September 2008 on the 16 grounds enumerated in the Notice of Appeal.
- The costs of this application will be costs in the appeal.
02
Material facts
Parties
National Director of Public Prosecutions
Applicant Counsel: Mr TrengoveJacob Gedleyihlekisa Zuma
Respondent Counsel: Mr Kemp03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal
04
Questions and positions
Legal issues
- 01
Whether there are reasonable prospects of success on appeal regarding the judgment and orders made on 12 September 2008.
- 02
Whether the matter is of a civil or criminal nature.
- 03
Whether section 179(5)(d) of the Constitution and the National Prosecuting Authority Act apply to the applicant.
- 04
Whether the applicant had a legitimate expectation to make representations to the National Director.
- 05
Whether the court erred in making findings on allegations of political interference without full oral argument.
Party arguments
- Applicant
- The applicant contended that the judgment and orders made on 12 September 2008 were erroneous on 16 grounds set out in the Notice of Appeal. The applicant argued that complex questions of fact and law were involved, including the applicability of section 179(5)(d) of the Constitution and the National Prosecuting Authority Act, and that there were reasonable prospects of success on appeal. The applicant also challenged the findings regarding political interference and the process for making representations to the National Director.
- Respondent
- The respondent maintained that the judgment and orders should stand, arguing that the court correctly interpreted the relevant constitutional and statutory provisions. The respondent asserted that the applicant did not have a legitimate expectation to make representations and that the findings regarding political interference were justified. The respondent opposed the granting of leave to appeal, contending that there were no reasonable prospects of success.
05
Court’s reasoning
Legal principles
- 01
Section 17(1) of the Superior Courts Act
Leave to appeal should be granted if there are reasonable prospects of success on appeal.
- 02
Section 179(5)(d) of the Constitution; National Prosecuting Authority Act
The interpretation and application of section 179(5)(d) of the Constitution and the National Prosecuting Authority Act are novel and complex legal questions.
- 03
President of the Republic of South Africa v SARFU 2000 (1) SA 1 (CC)
A legitimate expectation may arise where a party is entitled to make representations before a decision is taken affecting their rights.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the application for leave to appeal raised complex and novel questions of law and fact, particularly regarding the nature of the proceedings (civil or criminal), the applicability of section 179(5)(d) of the Constitution and the National Prosecuting Authority Act, and the issue of legitimate expectation to make representations. The court also considered the challenge to findings on allegations of political interference, noting that full oral argument had not been presented on those issues. Given the public importance and the reasonable prospects of success on appeal, the court granted leave to appeal on all 16 grounds set out in the Notice of Appeal. The costs of the application were ordered to be costs in the appeal.
Obiter and limits
- The matter is of great public importance and involves questions that have not previously been considered by the courts.
- The issue of legitimate expectation was decided in case the court was wrong on the main legal questions, due to the public significance of the case.
- Full oral argument was not presented on the applications to strike out allegations of political interference, which influenced the decision to grant leave to appeal on those grounds.
Court disposition
Leave to appeal granted to the Supreme Court of Appeal on all 16 grounds enumerated in the Notice of Appeal. Costs of the application to be costs in the appeal.
- Leave is granted to the National Director of Public Prosecutions to appeal to the Supreme Court of Appeal against the judgment and orders made on 12 September 2008 on the 16 grounds enumerated in the Notice of Appeal.
- The costs of this application will be costs in the appeal.
Source and reliance status
High Courts - Kwazulu Natal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Courts - Kwazulu Natal
Order
CASE NO 8652/08
DATE 22.10.2008
In the matter between:
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant
and
JACOB GEDLEYIHLEKISA ZUMA Respondent
ON RESUMPTION
JUDGMENT ON 22.10.2008
NICHOLSON J This is an application for leave to appeal against the whole of the judgment and orders that I made in this matter on the 12th of September 2008, save those relating to the amicus curiae, The Society for the Protection of the Constitution.
The application mentions 16 grounds of appeal. The test for an application such as this is whether there are reasonable prospects of success on appeal. The main application involved complex questions of fact and law and was of great public importance. The primary question of whether the matter was of a civil or criminal nature was res nova in the sense that it had never been considered before and occasioned me much anxious deliberation. In addition, the legal question as to whether the provisions of section 179(5)(d) of the Constitution and the corresponding provisions in the National Prosecuting Authority Act were applicable to the applicant in the main application was a very complex issue which had never been considered before by the Courts. On those questions I have no difficulty in granting leave on the basis that I believe there are reasonable prospects of success on appeal.
Apart from the above matters I was also minded to decide the factual question as to whether the applicant had a legitimate expectation that he could make representations to the National Director. I decided this issue in case I was wrong on the difficult legal questions I have mentioned and because of the public importance of the whole matter. Although this is a borderline issue
as to its prospects of success, I am inclined to grant leave on that ground as well. I also made orders on the two applications to strike out allegations of political interference in the papers. Detailed reasons have been given, both in the Notice of Appeal and in the Heads of Argument, why the Court erred in making such findings. In
addition, full oral argument was not addressed on these particular applications at the hearing on the 4th and 5th of August. I believe there are reasonable prospects on appeal on these issues and I am inclined to grant leave in that regard as well. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER ON 22.10.2008 NICHOLSON J I therefore grant the following order: Leave is granted to the National Director of Public Prosecutions to appeal to the Supreme Court of Appeal against the judgment and orders I made on the 12th of September 2008 on the 16 grounds enumerated in the Notice of Appeal.
I order that the costs of this application will be costs in the appeal. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Apart from the above matters I was also minded to decide the factual question as to whether the applicant had a legitimate expectation that he could make representations to the National Director. I decided this issue in case I was wrong on the difficult legal questions I have mentioned and because of the public importance of the whole matter. Although this is a borderline issue
as to its prospects of success, I am inclined to grant leave on that ground as well.
I also made orders on the two applications to strike out allegations of political interference in the papers. Detailed reasons have been given, both in the Notice of Appeal and in the Heads of Argument, why the Court erred in making such findings. In
addition, full oral argument was not addressed on these particular applications at the hearing on the 4th and 5th of August. I believe there are reasonable prospects on appeal on these issues and I am inclined to grant leave in that regard as well.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
ORDER ON 22.10.2008
NICHOLSON J I therefore grant the following order:
Leave is granted to the National Director of Public Prosecutions to appeal to the Supreme Court of Appeal against the judgment and orders I made on the 12th of September 2008 on the 16 grounds enumerated in the Notice of Appeal.
I order that the costs of this application will be costs in the appeal.
PROCEEDINGS ADJOURNED
IN THE HIGH COURT OF SOUTH
AFRICA
DURBAN AND COAST LOCAL
DIVISION
HELD AT DURBAN CASE NO : 8652/08 DATE : 22 OCTOBER 2008
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS versus
JACOB GEDLEYIHLEKISA ZUMA
BEFORE THE HONOURABLE MR JUSTICE NICHOLSON ON BEHALF OF APPLICANT : MR TRENGOVE ON BEHALF OF RESPONDENT : MR KEMP INTERPRETER : NOT REQUIRED
APPLICATION FOR LEAVE TO APPEAL
REPORT ON RECORDING Clear recording.
CONTRACTOR Sneller Recordings (Pty) Ltd. Durban 103 Jan Hofmeyr Road Westville 3630 Tel 031 2665452 Fax 031 2665459
PROCEEDINGS ADJOURNED
IN THE HIGH COURT OF SOUTH
AFRICA
DURBAN AND COAST LOCAL
DIVISION
HELD AT DURBAN
CASE NO : 8652/08
DATE : 22 OCTOBER 2008
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
versus
JACOB GEDLEYIHLEKISA ZUMA
BEFORE THE HONOURABLE MR JUSTICE NICHOLSON
ON BEHALF OF APPLICANT : MR TRENGOVE
ON BEHALF OF RESPONDENT : MR KEMP
INTERPRETER : NOT REQUIRED
APPLICATION FOR LEAVE TO APPEAL
REPORT ON RECORDING Clear recording.
CONTRACTOR
Sneller Recordings (Pty) Ltd. Durban 103 Jan Hofmeyr Road Westville 3630
Tel 031 2665452 Fax 031 2665459
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