Mpshe, McCarthy earn judges’ ire

“Mr Mpshe disregarded, without given reasons, the recommendation of the prosecution team that, even if the allegations regarding Mr McCarthy [Leonard McCarthy, former head of the Directorate of Special Operations] are true, the decision to stop the prosecution was to be made by a court of law.

“Mr Mpshe was subjected to such pressure that he could not afford the time and space to properly apply his mind on the implication of what he was about to do. He failed to exercise and apply the balancing act of the two imperatives necessary for the consideration of the abuse-ofprocess doctrine.

“Mr Mpshe, by not referring the complaint of abuse of process and the related allegations against Mr McCarthy to court, rendered his decision irrational.

“When Mr Mpshe announced his decision on April 1 2009, no discussion was held with senior members of the NPA to source their views on this subject. This omission is critical, considering that up to March 31 2009, they had been collectively discussing and agreed to continue with the prosecution.

“They too had been briefed on the content of the tape and . . . heard the tape with Mr Mpshe. It is expected that they individually would have formed some views on the matter. Failure to source their views . . . was irrational.

“There is thus no rational link between the alleged misconduct of Mr McCarthy and the decision of April 1 2009.

“Mr Mpshe failed to explain how the information he had heard on the tape could be said to have affected, compromised or tainted the envisaged trial process and the merits of the intended prosecution.”

“In our view, the alleged conduct of Mr McCarthy as appears from the transcript of the recorded conversations, if proven, constitutes a serious breach of the law and prosecutorial policy.

“His conduct as alleged in the transcript, again if proven, certainly calls for intervention. This will involve an inquiry into the allegations and, if need be, also censure by a court of law.”