NPA issues warning to courts

THE National Prosecuting Authority has warned the courts against overstepping their boundaries.

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 a prosecution.

Apart from bad faith or intent to deceive on the part of the prosecutor‚ the court cannot interfere with that power.

Zuma and the NPA are appealing against a Pretoria High Court decision handed down in April last year.

The court set aside a decision taken by then acting national public prosecutions director Mokotedi Mpshe in April 2009 to discontinue the corruption prosecution against Zuma.

He had relied on intercepted communications between then Scorpions head Leonard McCarthy and former NDPP Bulelani Ngcuka in which they discussed the timing of instituting charges against Zuma in 2007.

It was alleged that Ngcuka had instructed McCarthy 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.

In June last year, the NPA and Zuma were refused leave to appeal the high court judgment.

They then petitioned the SCA for leave to appeal.

The appeal court agreed to hear their application in an order made in January this year.

NPA advocates led by Hilton Epstein SC said in their written submissions: “Central to this appeal is the separation of powers doctrine and . . . the extent to which the courts can or should interfere with the discretion vested in the NPA.”

They also said the high court had erred in finding that Mpshe’s decision to withdraw the charges was irrational.

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 his submissions‚ Zuma said Mpshe’s decision was rational.

Zuma’s advocates, led by Kemp Kemp SC, said: “Mpshe formed the view‚ based on the evidence presented to him‚ that the process had been tainted.”