National Director of Public Prosecutions v Zuma (8652/08) [2008] ZAKZHC 77 (22 October 2008)

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.

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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