IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA. Inthe matter between: CORRUPTION WATCH NPC FREEDOM UNDER LAW NPC. COUNCIL FOR THE ADVANCEMENT OF THE SOUTH AFRICAN CONSTITUTION and THE PRESIDENT OF THEREPUBLIC OF SOUTHAFRICA THE MINISTER OF JUSTICE AND CORRECTIONAL SERVICES MXOLISI SANDILE OLIVER NXASANA SHAUN ABRAHAMS DIRECTOR-GENERAL OF JUSTICE CHIEF EXECUTIVE OFFICER OF THE NPA. NATIONAL PROSECUTING AUTHORITY THE DEPUTY PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA CCT CASENO: 333/17 NGHC CASE NO: 62470/2015 93043/2015 First Applicant Second Applicant Third Applicant First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent Sixth Respondent Seventh Respondent Eighth Respondent FILING SHEETPRESENTED FOR FILING: - Answering Affidavit of the Fourth and the Seventh Respondent. THE STATE ATTORNEY, PRETORIA Altorney for the 1°, 2" 4" and 7 Respondents SALU Building 316 Thabo Sehume Street Comer Francis Baard and Thabo Sehume Streets Pretoria Private Bag X91, Pretoria Ref: Mr M Letsoko/5076/2015/214/PM MLetsoko@justice.gov.za clo THE STATE ATTORNEY, JOHANNESBURG 42th Floor, North State Building, 95 Market Street (clo Kruis Street) Johannesburg 2004 To: THE REGISTRAR OF THE HIGH COURT Pretoria To: THE REGISTRAR OF THE CONSTITUTIONAL COURT BraamfonteinAnd To: And To: And To: WEBBER WENTZEL Attorney for 1* and 2" Applicants 90 Rivonia Road Sandton Tel: 011 530 5000 Fax: 011530 5111 Email: moray.ha thorn@webberwen' el.co.za Ref: M Hathorn/3001742 Service by E-mail LEGAL RESOURCES CENTRE Attomey for the 3° Applicant 16" Floor Bram Fischer Towers 20 Albert Street Marshalltown, Johannesburg Tel: 011 836 9831 Fax: 086 644 5436 Email: carina@ire.org.2a Ref: Carina/1111315L Service by E-mail DELANEY ATTORNEYS 3 Respondent's Attomeys 6 Stafford Road Westdene Tel: 083 397 0057 Email: simon@delaney.co.za Service by E-mailAnd To: And To: WEBBER WENTZEL Attorney for the Helen Suzman Foundation 90 Rivonia Road Sandton Tel: 011 530 5000 Fax: 011 530 5111 Erail: viad.movshovic@webberw Service by E-mail HAROLD GIE ATTORNEYS Attorneys for the Centre for Defending Democratic Rule Wembley 3 80 Mackenzie Street Cape Town Tel: 021 464 4723 Fax: 021 464 4823 Email: ameyer@haroldgie.co.2a Service by E-mailIN THE CONSTITUTIONAL COURT OF SOUTH AFRICA In the matter between: CORRUPTION WATCH NPC FREEDOM UNDER LAW NPC COUNCIL FOR THE ADVANCEMENT OF THE SOUTH AFRICAN CONSTITUTION and THE PRESIDENT OF THE REPUBLIC OF SOUTHAFRICA THE MINISTER OF JUSTICE AND CORRECTIONAL SERVICES MXOLIS!I SANDILE OLIVER NXASANA SHAUN ABRAHAMS: DIRECTOR-GENERAL OF JUSTICE CHIEF EXECUTIVE OFFICER OF THE NPA NATIONAL PROSECUTING AUTHORITY THE DEPUTY PRESIDENT OF THE: REPUBLIC OF SOUTH AFRICA CCT CASE NO: 333/17 NGHC CASE NO: 62470/2015 93043/2015 First Applicant Second Applicant Third Applicant First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent Sixth Respondent Seventh Respondent Eighth Respondent A hsFOURTH AND SEVENTH RESPONDENTS’ ANSWERING AFFIDAVIT IN OPPOSITION TO APPLICANTS’ RULE 16(4) APPLICATION FOR. CONFIRMATION AND NOTICE OF APPEAL IN TERMS OF RULE 16(2) |, the undersigned, SHAUN KEVIN ABRAHAMS do hereby declare under oath and state that: - 4. 1am the National Director of Public Prosecutions of the Republic of South Africa (the ‘NDPP"), duly appointed by the President, on 18 June 2016, in terms of section 179(1) of the Constitution of ‘the Republic of South Africa, 1998 (the “Constitution”), read with sections 10 and 12 of the National Prosecuting Authority Act 32 of 1998 (the “NPA Act’). | am the fourth respondent in the application for confirmation and the National Prosecuting Authority (the "NPA”) is the seventh respondent. 2. Save where otherwise stated, or where the context indicates otherwise, the contents of this affidavit are within my personal knowledge, and are to the best of my belief both true and correct. 3. The NDPP and the National Prosecuting Authority are together 7 referred to as “the NPA Parties”.The applicants seek confirmation under Rule 16(4) of the Rules of the Constitutional Court of the judgment of the Gauteng Division of the High Court (per Mlambo JP, Ranchod et Van der Linde JJ) (“the Court a quo’), handed down on 8 December 2017. In terms of Rule 16(4) “A person or organ of state entitled to do so and desirous of applying for the confirmation of an order in terms of section 172(2)(d) of the Constitution shall, within 15 days of the making of such order, lodge an application for such confirmation with the Registrar and a copy thereof with the Registrar of the court which made the order, whereupon the matter shall be disposed of in accordance with directions given by the Chief Justice.” The Chief Justice on 15 December 2017 issued directions as follows: “Should the respondents wish to oppose this matter, they are directed to file their notice of intention to oppose together with their answering affidavits, if any, on or before Friday, 19 January 2018.” It is pursuant to these directions that | depose to this affidavit in opposition to the application for confirmation. The NPA Parties attach hereto their Notice of Appeal against that judgment in terms of Rule 16 (2) read with 16 (3) of the Constitutional Court Rules, in contemplation of such appeal and the A hes4 Application for Confirmation being heard together, on such date as may be stipulated in further directions to be issued by the Chief Justice in due course. | pray that the contents of the Notice of Appeal be read as if incorporated herein. My affidavit serves two purposes. First, | wish to take issue with certain factual averments made by the applicants under the heading “urgency". Second, | amplify the separately-filed grounds of appeal per Rule 16(2), by identifying particular respects in which, so it is respectfully submitted, the judgment a quo mischaracterizes the record, and fails correctly to apply certain relevant legal principles. This is a matter that would in the ordinary course be dealt with in heads of argument, However, neither the sui generis confirmation regime established under Rule 16, nor the directions of the Chief Justice of 15 December 2017, make provision for heads of argument; nor indeed for any further submission by a party opposing confirmation, | am advised that it is therefore prudent to deal with these matters in the present affidavit, in an abundance of caution. In the event that the Chief Justice provides in directions for the filing of heads of argument in due course, the present affidavit may be treated as a foreshadowing thereof. INTRODUCTION Before the Court a quo were parallel applications for orders declaring invalid and setting aside a settlement agreement reached RI‘on 14 May 2015 between the President, the Minister of Justice and Correctional Services, and a predecessor to myself, Mr Nxasana, for being incompatible with the Constitution, as well as certain relief ancillary thereto. 412. Under the agreement, Mr Nxasana would relinquish his post as NDPP as from 1 June 2015, being paid the sum of R17 357 233. This amount well exceeded what Mr Nxasana’s financial entitlement would have been had his office been vacated in terms. of s.12(8)(a)(ii) of the NPA Act. All parties had accepted that the agreement should be declared invalid in terms of s.172(1)(a) of the Constitution. 13. The main relief the Court ordered was as follows: 1, The settlement agreement was reviewed, declared invalid and set aside. 2. The termination of the appointment of Mr Nxasana as NDPP was declared unconstitutional and invalid. 3. The decision to authorise payment to Mr Nxasana of an amount of R17 357 233, was reviewed, declared invalid and set aside. 14, The NPA Parties did not oppose this substantive relief. 15. As to consequential relief, the Court ordered that: 4. My appointment as National Director of Public Prosecutions is reviewed, declared invalid and set aside. 5. Decisions taken and acts performed by me in his ere16. 17. capacity as the National Director of Public Prosecutions are not invalid merely because of the invalidity of his appointment. 6. Mr Nxasana is ordered forthwith to repay to the State all the money he received in terms of the settlement. 7. It is declared that, in terms of s 96(2)(b) of the Constitution, the incumbent President may not appoint, suspend or remove the National Director of Public Prosecutions or someone in an Acting capacity as such 8. It is declared that, as long as the incumbent President is in office, the Deputy President is responsible for decisions relating to the appointment, suspension or removal of the National Director of Public Prosecutions or, in terms of s.14(2)(b) of the National Prosecuting Authority Act, someone in an Acting capacity as such. | mention that the NPA parties have applied for leave to appeal to the SCA against items 4, 7 and 8, as well as the relevant costs order as against the NPA Parties. The Court also declared parts of sections 12(4) and 12(6) of the NPA Act to be unconstitutional. The NPA Parties did not persist in opposing this relief a quo. We do not now appeal against this component. Nor do we oppose the confirmation of the relevant declaration.19. 20. ISSUES BEFORE THE COURT ON CONFIRMATION THE VACANCY ISSUE The basis for the finding @ quo that there was no vacancy into which | could have been appointed was the Court's conclusion that the settlement agreement was invalid: “Because Mr. Nxasana did not request to be allowed to vacate the office of the NDPP as required by s.12(8)(a) of the NPA Act, but rather because he was persuaded to vacate the office by the unlawful payment of an amount of money substantially greater than that permitted by law." | contend that it did not jpso facto follow from the finding that the settlement agreement was invalid that there was no vacaney in the office of the NDPP. Hence, under the heading, “to vacate or not to vacate,” the Court posed the question whether “this conclusion result in the office being vacant?” At this point, without answering its own question, the Court devoted several pages to the issue of remedy, premised upon the assumption that no vacancy existed. Only several pages later did the Court conclude: “It would be just and equitable if the position were declared vacant for a short period of say 60 days, for it to be filled by appropriate appointment within that period.” fr ANa 22. 23. With respect, this was to put the cart before the horse. The proper course would have been to decide the substantive issue ~ whether or not a vacancy existed into which a successor NDPP could be appointed ~ and only then, if the answer was in the negative, consider the question of remedy. This confusion was not insignificant, since it led to the conflation by the Court a quo of the substantive analysis with the remedial issue. The NPA Parties’ argument that a Court will rarely grant a “Just and equitable” remedy that severely prejudices an innocent third party was thus occluded. | will advance two arguments in this regard. The first can be briefly stated. The vacancy into which | was appointed was created by the termination of the acting appointment of Dr Silas Ramaite SC ("Dr Ramaite"). The Court @ quo failed to acknowledge that Dr Ramaite served in that capacity immediately following the departure of Mr Nxasana. It will be argued that as a matter of law, the appointment of Dr Ramaite remains valid until and unless it is set aside by a court of law. It was not set aside, which entails that | was appointed into the vacancy created by the end of Dr Ramaite’s acting tenure. Second, under the Supreme Court of Appeal authority of Government Employment Pension Fund v Strydom 2001 (3) SA 856 (SCA), the fact that Mr Nxasana did not leave office under s 12 of the NPA Act does not in itself entail that his employment was not, as a matter of fact, terminated. In Strydom, a magistrate had KM24. 25. unilaterally resigned before his full term of office had expired. Echoing s 12(8) of the NPA Act, s. 13(5) of the Magistrates Act 90 of 1993 provided as follows: "(6) (a) The Minister may, at the request of a magistrate, allow such magistrate to vacate his or her office - i) on account of continued ill-health; or (iA) i) for any other reason which the Minister deems sufficient." The appellant Pension fund argued that the Magistrate had not validly resigned, because formal resignation under s 13(5) was an essential prerequisite for a claim to the pension benefit he claimed However, Farlam JA held that a Magistrate was entitled lawfully to resign, unilaterally and without the Minister's concurrence. He held that the fact that s 13(5) made provision for the resignation of Magistrates before their retirement dates with the consent of the Minister of Justice; that the grant of Ministerial approval carried substantial financial advantages for those wishing to resign before their retirement dates; and that the Magistrates Act made no provision for the resignation of Magistrates before their retirement dates without Ministerial approval, did not entail that Parliament intended to prevent Magistrates from resigning without the Minister's approval. WL10 26. Rejecting the Fund's argument, Farlam JA held: “1 cannot discern in the provisions of the Magistrates Act an intention on the part of the Legislature to provide an all- embracing code dealing with the ways in which magistrates are to vacate office. What is clear from a study of the Act is that Parliament was concerned to grant to magistrates an independence and freedom from interference which they had not previously enjoyed and to that extent at least to bring their position and conditions of tenure and service closer to that of Judges. It was thus necessary to include, inter alia, a provision which ensured that magistrates could not be removed from office save for misconduct, continued ill-health or incapacity” “It is clear that those responsible for drafting s 13(5) had regard to what may be called the financial consequences for magistrates who vacate office with the Minister's consent and had in mind the various categories of benefits available for ‘such magistrates in terms of the pension legislation applicable tothem. ...” “A magistrate who resigns without the Minister's approval will be entitled to no more than they would have been if he or she had been discharged on the ground of misconduct or ill-health occasioned by his or her own doing.” 27. For present purposes, the following remarks of the learned judge regarding the connection between independence and conditions of departure are of particular significance: “One of the main legislative purposes prompting the enactment of the Magistrates Act was the enhancement of the independence of the magistracy. One can readily see how that purpose is to be achieved by providing that magistrates are only to be removed from office pursuant to a parliamentary resolution in terms of s 13(3) and (4) or that they may be allowed to vacate office with the Minister's approval in terms of Qe28. 29. 30. 11 's 13(5), in which case their financial position in terms of the applicable pension legislation’ is protected, as explained above.” Against that background, | turn to what the Court a quo deemed the crucial basis for its distinguishing of the Strydom case: the “current legistative milieu and the paramount position that the prosecutorial authority and prosecutorial independence assumes in our constitutional arrangement.” It held that it would be “surprising” if a unilateral resignation [tendered by the NDPP] ‘with no need for approval were permissible despite the clearly higher bar of a request to vacate, coupled with expressed reasons that are (reasonably) deemed by the President to be sufficient.” (Para 104), It is submitted that the suggestion that a regime where under a prosecutor may not “walk away” from his or her job, save with the assent of the President, in order to secure his or her independence, reflects flawed reasoning. Prosecutorial independence founded security of tenure. It is a non-sequitur to say that independence requires that an office-holder be batred from leaving office, except with leave of the President. In fact, the argument cuts the other way. If a NDPP is permitted to leave office with full benefits only with leave of the President, that creates the opportunity for a tacit quid pro quo; the President gives his leave only if the NDPP shows him favours before he departs. As Farlam J pointed out, in rejecting the argument that a Qe hs31 32. 33, 12 Magistrate’s independence was bolstered by preventing unilateral departure, "If anything, to preclude the right to resign could be seen as a fetter on judicial independence.” It will be argued further that the Court a quo's other attempt to distinguish Strydom is unsupportable. The suggestion that the independence of a judicial officer is of less importance than the independence of the prosecution service cannot be sustained Indeed, for a judicial officer to be subject to pressure from the executive represents equally or arguably the more egregious inroad into the rule of law. The Court a quo held “Strydom does not assist Adv. Abrahams’ contention, because Strydom’s resignation was unilateral, whereas that of Mr Nxasana was procured by promise of unlawful reward.” (Para 105) However, the Strydom precedent rebuts the suggestion that, as a matter of statutory interpretation, the sole means whereby a NDPP may leave office would under s 12 of the NPA Act. The underlying principle - that a court will hesitate to interpret a statute to engender the artificial situation wherein a person may be deemed to be the incumbent of an office some two years after departing voluntarily — stands. Finally the Court a quo erred in distinguishing Strydom on the basis. of referring to Farlam JA's interpretation of the Magistrates Act in y ue u35, 13 such a fashion so as not the extinguish the pre-existing right of Magistrates to voluntarily resign. Precisely the same argument could be advanced with respect to the NPA Act. The predecessor legislation, the Attorney General Act 92 of 1992, likewise did not preclude the AG from resigning voluntarily. Why, one may ask, should s. 12(8) of the NPA Act be interpreted so as to strip the head of prosecutions of a right he or she would have enjoyed under the immediately antecedent statute? THE COURT'S CRITICISM OF MY CONDUCT In finding that it was just and equitable that | be removed from office, the Court focused upon three factors: 36.1. That | had associated myself, inconsistent with the imperative of prosecutorial independence, with the position of the President. 36.2. That | had attacked certain submissions of the Applicants in strong language. 35.3. That | should not have questioned judgments in which the conduct of Ms Jiba and the other prosecutors had been criticised.36. 37. 38. 39. 14 J turn to address these criticisms below. “Taking Sides” With The President The Court @ quo held as follows: “In this litigation - as in the President's and the NPA's appeal to the SCA - Adv. Abrahams has associated himself, inconsistent with the imperative of prosecutorial independence, on all material issues with the position of the President. An example is the three points he argued: the vacancy issue, the conflict issue, and remedies,"! | submit that it was unfair of the Court a quo to criticise my litigation posture in support of its finding that it was just and equitable that | be removed from office. There could be no legitimate objection to my arguing that there was indeed a vacancy into which | could be appointed; that the President was not conflicted at the time in appointing me; and that the appropriate remedy would in any event not be to strip me of the position. Had | abided any of these proposals, | would in effect have been endorsing the Applicants’ substantive application insofar as it concerned me. And, in several crucial aspects, | did not align myself with the President. In my answering affidavit of 29 January 2016, (R; 496- 97), | stated specifically that, having not had any involvement in the settlement agreement, or in the termination of Mr Nxasana’s * Para 97. he40. A. 42. 43. 15, employment, | would not comment upon the facts giving rise thereto, | took to position that it was not necessary to furnish details as to “the facts leading up to my appointment.” (R: 498.) | also declined to comment on the circumstances of Mr Nxasana's departure. | stated: “| was not privy to entering into the settlement agreement and the termination of the appointment of Mr Nxasana. | was not involved with this whatsoever. | therefore do not in this affidavit comment upon the facts giving rise to the settlement agreement.” (Answering Affidavit paragraph 8, R: 496.) | stated further: “In view of the fact that the applicants do not challenge my fitness and propriety to hold the office of the NDPP, itis not necessary for me to furnish details as to my background; the interview process and the facts leading up to my appointment.” (Answering affidavit, paragraph 13.2, Record: 498). | also refused to comment on the allegation that the settlement agreement was contrary to the provisions of the NPA Act. (Answering affidavit para 30.2, Record: 507). Refusing to find that the President knew that his conduct was unlawful, the Court a quo correctly observed that this “would be an inferential conclusion on affidavit concerning the President's state of mind.” (Para 91) | submit that the Court should have16 been equally reluctant to draw inferences as to the motives of the President in removing Mr Nxasana and subsequently appointing me. 44, Argument will be advanced to support the position that a Court will be slow to draw inferences as to motive. My Remarks Regarding the Applicants’ Arguments and Mr Nxasana’s Motivation 45. The Court found that: “{Abrahams] attacked the case of the applicants, non- profit organisations, in language such as: '/ submit that the relief sought is unmetiorous, ilogical, incompetent and amounts fo an absurdity’. He had little reserve in casting sweeping aspersions: ‘/ established that there were some serious criticisms of Adv. Jiba in the court judgments, but much of the material placed before the courts had been manipulated and actuated by ulterior motives with a view to getting rid of Adv. Jiba.’ In the same vein: "/ ascertained that the criminal proceedings and the GCB application were not initiated by disinterested persons who wished to protect the integrity of the institution. In fact, they could be traced to officials within the NPA, centred around Mr Nxasana who had long been at loggerheads with Adv. Jiba.”* 46. | respectfully submit that the Court a quo’s remarks regarding the language used in my affidavits were unfair. ? Para 98. “Q47. 48. 49. 50. 7 First, the language | used was directed not at the Applicants, but at the relief they sought Second, the Applicants themselves did not object to the language | used — most likely because terms like “unmeritorious” “illogical” and “absurd” are common place in litigation both in High Court affidavits and judgments. Third, the Court, in the quoted passage above makes reference to the Applicants being non-profit organisations. Insofar as there is any suggestion that they should be accorded more respect than other litigants, | respectfully submit that this is not the case. All litigants must be treated equally, In National Director of Public Prosecutions and Others v Freedom Under Law 2014 (4) SA 298 (SCA) at para 18, Brand JA found that: - “What | do find somewhat perturbing is the court's high praise for Dr Mamphela Ramphele and Justice Johan Kriegler who deposed to FUL’s founding and replying affidavits respectively. It needs to be emphasised that all litigants, irrespective of their status, should be treated equally by our courts. Judges must therefore be wary of creating the impression — which would undoubtedly be unfounded in this case ~ that they have more respect for some litigants or their representatives than for others.” In relation to my comments on Mr Nxasana's motivations, whether ultimately justified or not, | did not pull these comments out of thin air. All of them found support - in the record: The discord between various NPA “factions” centered around Mr Nxasana and Ms Jiba W jar18 was public knowledge and widely reported in the media, generating headlines such as “Justice Minister calls for an end to NPA infighting’, “Cameron: NPA appears chaotic and dysfunctional” and “NPA Crisis: Open Warfare was just the beginning". It therefore cannot be said that | was casting empty aspersions. My Responses to the Adverse Judi Comments Regarding Ms Jiba and the other Prosecutors 51. The Court a quo held “The judgments that questioned the integrity of advocates Jiba, Mrwebi and Mzinyathi were judgments of the High Court, and Adv. Abrahams should not have questioned but should instead have acted on their result. And in the event, the judgment of Legodi J in the GCB matter vindicated the complaints.”* 52. But it is with respect simply not true that | failed to take any steps in the wake of the adverse judicial comments about the three prosecutors. The following events are apposite: - 52.1. The Democratic Alliance posed a Parliamentary question in May 2015 regarding a request by Mr Nxasana to suspend certain senior NPA officials and to hold an ° Para 99.52.2. 62.3. 19 enquiry into their fitness to hold office. In response, the President stated that ‘the matter of the suspension of senior personnel within the NPA is under consideration. 1 have urgently called on the National Director of Public Prosecutions, through the Minister of Justice and Correctional Services, to provide me with the facts and circumstances requisite for such consideration.” Shortly after | took office, the Minister requested that | look into the matter. After consideration of the judgments, enquiries, opinions and documents filed in the GCB application, | advised the President, through the Minister, that it was best to await the finalisation of the GCB application before the President should a final decision on whether Ms Jiba, Mr Mrwebi and lzinyathi be suspended and an enquiry held. My advice to the President has since been vindicated by Dolamo J in the matter of Democratic Alliance v President of the Republic of South Africa and Others [2016] 3 All SA 537 (WCC). He found that the decision of the President to await the outcome of the GCB application was not irrational. More recently, the Full Bench decision of the Gauteng Provincial Division in the matter of Freedom Under_Law (RF) NPC v National Director of Public js and Others (89849/2015) [2017] ZAGPPHC QL Prosect WE53. 55. 20 791 (21 December 2017) ordered the President to hold enquiries into the fitness and propriety of Ms Jiba and Mr Mrwebi.. However, the order was suspended until the outcome of the GCB appeal. Concurring on this point, Wright J held that it would be wasteful for an enquiry to be immediately instituted, since it was possible that the outcome of the SCA appeal might cast the matter in a new light Further, the Court a quo erroneously found that the full bench judgment in General Council of the Bar of South Africa v Jiba and Others 2017 (2) SA 122 (GP) (‘the GCB matter’), vindicated the complaints against Ms Jiba. In fact, the full bench in effect exonerated her in two out of the three matters that formed the basis for the GCB's application to have her struck from the roll. In response to the judgment in the GCB matter | granted both Ms Jiba and Mr Mrwebi Special Leave. With respect, it is inexplicable that it should be deemed just and equitable that | be penalised for having reacted to adverse findings against Ms Jiba and the other prosecutors in a manner that was effectively adopted by the only two High courts to have considered that factual matrix, tec. 56. 57. 58. 21 THE ISSUE OF JUST AND EQUITABLE REMEDY The Court a quo held: “In the circumstances we do not believe it would be just and equitable either to reinstate Mr Nxasana or to leave Adv. Abrahams as permanent NDPP. In our view it would be just and equitable if the position were declared vacant for a short period of say 60 days, for it to be filled by appropriate appointment within that period.” (Para 106). The basis for this order that | be removed from office was the finding that leaving me in office would allow the President to achieve through unlawful means that which he ‘had wished to attain all along." (Para 95). Elaborating upon that theme, the Court observed that leaving me in office would procure for the President a position: “Even better than what he had wanted all along: being rid of Mr. Nxasana, at a price much lower than Mr. Nxasana's demand, and with Adv. Abrahams in the saddle.” (Para 86) (Emphasis added). It is respectfully submitted that these are inferences unsupported on the record. There was no allegation — let alone any evidence - that the President entered the impugned agreement with Mr Nxasana with a mind to installing me as NDPP. It is simply not true that I was the intended beneficiary of the conduct that led to Mr Nxasana’s departure.59. 60. 61. 62. 22 Not only did the applicants fail to suggest that I acted improperly or that I am not a fit and proper person to occupy his office, they expressly denied that they wished to impugn my fitness For its part, Corruption Watch: 60.1. States in its founding affidavit that the applicants do not suggest that | am not a fit and proper person to be appointed to the office of the NDPP. (Paragraph 65, Record: 40). 60.2. __In its replying affidavit, observes that the applicants have not questioned my fitness for office, since “fitness is not a relevant issue in this application.” (Paragraph 18, Record: 782). CASAC affirms in its replying affidavit that it “does not seek the removal of Mr Abrahams on the basis that he is not a fit and proper person.” (Paragraph 12.1, Record: 445). There are three other considerations confirming that my being “fit and proper” was never an issue: 62.1. First, it is not stated as the basis for the Court's determination that | should be removed from office. Wy63, 64. 23 62.2. Second, CASAC suggests that a just and equitable remedy would be to allow me to continue as Acting NDPP (RA para 18.1.2, R: 450) 62.3. Third, | have ascertained from the record of the hearing, that counsel for Corruption Watch, had it put to him by the Honourable Judge President that “other than the unlawfulness of the decision (Corruption Watch is) contending for, there is nothing against (Mr Abrahams’) candidature.” Counsel for Corruption Watch responded by admitting: We have not made a case against Mr Abrahams.” He conceded that | was “a victim of that process’ of vindicating the Constitution, The Court a quo, in exercising its discretion on just and equitable relief, found that in the present tigation, and in the appeal to the SCA in the Spy-Tapes case, | associated myself with the position of the President. (Judgment, para [97]) Due to the fact that there was no negative allegation in the Applicants’ papers about my fitness and propriety, this was not addressed by me in my answering affidavit. Had | been called upon to do so | would have had the opportunity to bring the following, inter alia, to the Court's attention: 64.1. The Democratic Alliance (the "DA") launched the Spy-tapes review application in 2009. | was appointed as NDPP on 18 Ww j.64.2. 64.3. 64.4. 64.5. 64.6, 24 June 2015. (| reiterate that the appointment of an NDPP is made by the President together with other members of the Cabinet (s 85(2) of the Constitution. | note that Mr Ramaphosa was a member of the Cabinet at the time). At the time of my appointment, the affidavits in the so-called Spy-tapes case had already been filed The opposition on behalf of the NPA was led by various National Directors (including Mr Nxasana himself), and Acting National Directors of Public Prosecutions. The answering affidavit on behalf of the NPA was deposed to by Deputy NDPP, Mr Willie Hofmeyr, at the time that Mr Nxasana was the NDPP. The application before the Court a quo in the Spy-tapes matter was heard some eight months after my appointment. Before a decision was taken to seek leave to appeal, | consulted with members of the leadership of the NPA, who recommended and unanimously supported the decision to appeal. As appears from the judgment in the Spy-tapes case, Adv. Mphse, who withdrew the charges against the President, erroneously relied on section 179(5)(d) of the Constitution. This error, which was never raised by the DA, was only identified and drawn to my attention by Counsel about 1065. 25 days before the appeal hearing. Notwithstanding that this was damaging to the NPA’s case, | immediately instructed that Supplementary Heads of Argument should be submitted bringing this issue to the attention of the SCA. 64.7. After the President petitioned the High Court for leave to appeal, | attempted to expedite the matter by seeking direct access. It was only after that was declined that | joined the SCA proceedings. 64.8. As appears from the judgment in the Spy-tapes case, once the President's counsel conceded the point, the President's counsel submitted that he had the right to interpose representations regarding discontinuation of the prosecution. Since neither | nor the NPA could prevent the President from doing so, | submit that it was wholly unfair for me to attract criticism for that. LEGAL ARGUMENTS REGARDING THE PRESIDENTS CONFLICT OF INTEREST IN APPOINTING THE NDPP The NPA Parties argued in their appeal that the Court erred in declaring that, in terms of s, 96(2)(b) of the Constitution, the incumbent President may not appoint, suspend or remove the National Director of Public Prosecutions. It rejected my argument that the appointment powers of the President are in any event constrained by the need to act with the concurrence of the Cabinet th66. 26 (in which the Deputy President serves). The Court also erred in dismissing the point that the appointment of judicial officers ~ and indeed Mr Nxasana himself — would be open to question, if all similar appointments in which the President plays a dispositive role are open to question. Argument in this regard will be advanced in heads of argument and at the hearing of this matter. | reiterate that it was unfair of the Court a quo to find that my taking issue with the Applicants arguments on this score rendered it just and equitable that | be removed from office — especially bearing in mind that the Applicants argued vigorously that my initial appointment by President Zuma in 2015 was itself invalidated by virtue of the purported conflict. AD SERIATIM Ad paras 1 and 2 67. _ I dispute the contents of the affidavit of Parmananda Naidoo insofar as they are in conflict with what I state in my Affidavit. The remaining contents of these paragraphs are admitted. Ad para 3 68. The order appears from annexure PN-1, | dispute the remaining contents of this paragraph insofar as it may be inconsistent with what is stated in the order. ‘@a7 Ad paras 4-12 69. The contents of these paragraphs are admitted Ad para 13 70. The first sentence of this paragraph is admitted. The second sentence is denied. Ad paras 14-17 Tt The contents of these paragraphs are admitted. Ad para 18 72. The applicants’ prayer that the confirmation proceedings be heard urgently is noted and disputed. Relevant is the following: - 72.14. On 11 December 2017, the NPA parties lodged their application for leave to appeal to the Supreme Court of Appeal, thus suspending the operation of the judgment a quo. 72.2. The application for confirmation in terms of s 172(2)(d) of the Constitution; Rule 16(4) of the Constitutional Rules and s 15(1)(b) of the Superior Courts Act is dated 13 December 2017. 72.3. The next day, on 14 December 2017, Corruption Watch and FUL filed their notice of intention to oppose the application for leave to appeal. NG72.4, 72.5. 72.6, 72.7, 28 The Chief Justice on 15 December 2017 issued directions, whereunder the Respondents’ papers would be due by 19 January 2018; and stipulating that, should the applicants apprehend that the NPA may take a decision before the ‘outcome of the application, they could seek appropriate relief. Following up on the letter, on 20 December, the LRC addressed a letter to the State Attorney demanding that the NDPP take no decision on the President's fate pending the disposition of the confirmation application. A copy of this document is attached hereto as "SA-1". The State Attomey dispatched a letter on 22 December 2017, (erroneously dated 7 December 2017), contesting the ” Applicants’ interpretation of the Directions, and advising that the NPA would after 31 January 2018 revert. A copy of this document is attached hereto marked “SA-2’. In the same letter, it was pointed out that there had been no finding a quo that any decision that | might take relative to the President would be tainted by bias, that | was in fact biased, or that | misconducted myself in any way. On 4 January 2018, the LRC wrote to the State Attorney, requesting that, if | intended to take a decision regarding the President, | give two weeks’ notice of my intention to do so. @29 (A copy of this document is attached hereto as Annexure “SA- 3 72.8. The State Attorney responded on 9 January 2018, reiterating that | would revert fully following consultation with counsel. (A copy of this document is attached hereto as Annexure “SA-4"). 72.9. The further communication anticipated above came in the form of a letter from the State Attorney dated 15 January 2018, undertaking that | would give two weeks advance notice of my intention to make a decision regarding the President. (A copy of this document is attached hereto as Annexure "SA-5"). 72.10. As of the date of this affidavit, there has been no further correspondence between the parties. ‘Ad para 19 73. The contents of this paragraph are admitted, subject fo them being read in the context of the correspondence of the State Attorney referenced above. Ad para 20 74, The contents of these paragraphs are admitted. a75. 76. 77. 30 However, | reject the implications of the second sentence of this paragraph. My independence was not subject to legitimate question by the applicants for purposes of their matter. Indeed, the applicants repeatedly foreswore any allegation that | am not fit and proper to occupy the office of NDPP. Insofar as the Applicants seek to impugn my independence in regard to the decision to be made concerning the prosecution of the President, it is necessary for me to give a précis of my involvement. | was never invited by any of the parties, or the Court, to offer input for the purposes of considering the just and equitable remedy, 77.4. The parties were advised that judgment of the SCA in the Spy-tapes matter would be delivered on 13 October 2017. (The judgment is reported as Zuma v Democratic Alliance and Others 2018 (1) SA 200 (SCA)). 77.2. It became apparent during argument that the Court was likely to find that Adv. Mpshe had used the wrong section of the Constitution in considering the representations of Mr Zuma. | concluded that on this ground alone, the appeal would likely be dismissed. For that reason, on the same day as the hearing, 14 September 2017, | wrote to Lieutenant- General Matakata, the Acting Head: Directorate for Priority Crime Investigation. | advised that, should the decision of Adv. Mpshe be set aside, | would be required to establish ge77.3. 77.4, 31 the availability of the relevant witnesses, and whether or not documentary evidence on which reliance had been placed to indict Mr Zuma still existed. (A copy of this letter is attached hereto marked “SA-6”). | requested the urgent assistance of Lieutenant-General Matakata as appears from paragraph 9 of this letter. | requested that she provide me with a docket(s) andlor investigation file(s) in relation to the matter. On 11 October 2017 the President's attomeys, Hulley & Associates Inc, requested that | afford the President an opportunity to submit representations under s 179(2) of the Constitution. (A copy of this letter is attached hereto marked Annexure “SA-7”), On 19 October 2017 | responded to Hulley & Associates in ‘Annexure “SA-8" hereto. | pointed out that representations would be limited by virtue of the judgment of the SCA. The envisaged representations could relate only to issues not previously considered. On 17 October 2017 | had met with the Acting Head of the Director for Priority Crime Investigation (DPCI). They would revert to me by 30 November 2017 in relation to the availability of the witnesses, Mr Zuma’s representation should reached my office by no later than 30 November 2017. | had once again consulted with the leadership of the NPA in this regard. oh78. 79. 80. 32 On 27 November 2017, having again consulted the NPA ledership, | appointed Advocate Noko, Director of Public Prosecutions: Kwazulu-Natal as the lead prosecutor in the matter, as per Annexure “SA-9” hereto. In the letter of appointment: 78.1. advised that | had decided to strengthen the prosecuting team with four other members. 78.2. 1 made two further delegations, in the event that the assistance of the Asset Forfeiture Unit was required. 78.3. | advised that, should Adv. Noko need additional resources, she should engage me directly. 78.4. | advised that the investigative officer was Colonel Johan Du Plooy of the DPCI head office, Pretoria. He had been the investigating officer at the time when the matter was withdrawn in 2009. On 24 November 2017, | had received a letter from Hulley & Associates requesting an extension of the deadline to 19 February 2018 for Mr Zuma to submit his representations. The prosecution team informed me that it was evaluating the evidential material, and would not be ready to advise me until the end of January 2018. In these circumstances, | acceded on 7 December 2017 to the request for an extension, but only up until 34 January 2018, as appears from Annexure “SA-10” hereto. In Qe |v considering the extension request | considered, inter alia:82. 83. 80.1 80.2. 80.3. 80.4. 80.5. 80.6, 80,7. 33 Whether a satisfactory explanation for the request had been afforded. Possible prejudice to interested parties. The interests of the administration of justice and in bringing the matter to finality, The public interest generally. The complexity of the matter, and its import The laps of time entailed. The fact that the prosecuting team that was evaluating the evidence would not be in a position to advise me until the end of January 2018. Having hence granted an extension until 31 January 2018 | emphasised to the legal representative of the President that no further extension would be entertained. | respectfully submit that it can hardly be contended that | have dragged my heels. | respectfully submit that any suggestion that my conduct compromised my independence is without foundation.34 Ad para 21 84. Insofar as the Applicants make sweeping statements about my independence, as they do in the first clause of paragraph 21, | state that there is no basis for this. Ad para 22 85. The contents of this paragraph are admitted, in so far as they accurately reflect the judgment of the Court. 86. | submit in my application for leave to appeal that the court erred in its criticism of my conduct with respect to the judgments ‘commenting adversely on Ms Jiba and the other prosecutors. Ad para 23 87. According to the Applicants, “any decision taken by me concerning the prosecution of President Zuma will be reasonably suspected of bias and subject fo potential challenge.” It is denied that any such suspicion would be reasonable. That being said, it seems highly probable that, given the history of this matter, any decision that is made concerning the prosecution of the President will give rise to vigorous legal challenge from one quarter or another. 86. As to the second sentence of this paragraph, | concur that a decision on a prosecution of the President should be taken as soon as possible, subject to proper procedure being followed. As stated above, the President's representations are due on 31 January 2018. WL35 No decision can or will be taken in advance of that date. Upon receipt of the President's representations, as | have advised CASAC, | will convey the process and timeline contemplated for my decision in terms of s 179(2) of the Constitution. The aforegoing is ‘subject to the undertaken given to CASAC that | will afford two weeks notice of my intention to make the decision. Ad para 24 89. The contents of this paragraph are admitted. Ad para 25 90. The contents of this paragraph are noted. WHEREFORE the NPA parties pray for the dismissal of the application for confirmation of paragraphs 4, 7, 8 and 10 of the Order a quo as it appears in LU 7 paragraph 128 of the judgment. SHAUN KEVIN ABRAHAMS36 Thereby certify that the deponent has acknowledged that helshe-knows and understands the contents of this affidavit, which was signed and sworn to before me at _@arcttor on the 19th day of JANUARY 2048, the regulations contained in Government Notice No R1268 of 21 July 1972, as amended, and Government Notice No R1848 of 49 August 1977, as amended, having been complied a ‘COMMISSIONER OF OATHS ANGELICE CHACALAM BUS EX OFAClo /PEPETIEING ATICENET ta Feor, Sareiten City OFF “Towers Cor 6m 4, Bivenir Cords Dan “pel: ol) 4B SSI >— pcmpoopy oe ee arr 1)1 e Ponucatt«Jiurnelbag 2000 Souh Mita Tek 0) #3 01 «Fon (1) 694-4278 «Website Poo, 930003202, ‘po Ro. 073-008 Youre su7enatsr2taiptt OurRet 441131840 du Tol 20 December 2017 Mr MO Latsoko ‘The State Attorney Pretoria ermall: MLstsoko@lustice gov.z2 Fax: 086 644 5436 Dear Mr Letsoko ‘CASAC iI PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS. YOUR CLIENTS: SHAUN ABRAHAMS AND THE NATIONAL PROSECUTING AUTHORITY We refer to the application for confirmation filed in the Constitutional Court, case numbor 399/17, and the directions issued by the Chief Justice on Friday 15 December 2017. {In particuler, we refer to paragraph 2 of the directions, repeated here for convenionce: Should the applicants appretend that the fourth or seventh respondents may take a decision before the outcome of their applicetion in this Court, they may, if so advised, ‘800k appropriate reliot ‘The decision referred to in paragraph 2 of the directions plainly means the decision to be taken by Mr Abrahams and the National Prosecuting Authorily (NPA) about whether to ‘withdraw the criminal charges against the President. ‘On 9 December 2017 the NPA announced that Mr Abrahams had extended the deadline {for representations by the President unti 31 January 2017. We assume that Mr Abrahams and the NPA intend to make a decision on the institution of criminal proceedings against the Prasident after this date. Tet 3 sa aa We ere Cc Oe moe Geom a "Rey, Scho, VAG ct Me, Ro WS bar ‘sine rec Toke. A Tee tus: haceenae ea Uy Sg ‘Seung ‘(eer Al ac ae, ne ‘eo ps: ‘tna (Gteasy), 9 Sta Ges Cas Th a aay, USER Ving, WEY cec 8 10. Inlightof the directions of the Chief Justice and the judgment handed clown by Mlambo JP on 8 December 2017, itis not permissible for Mr Abrahams to make a decision on the inettution of charges against the President pending the outcome of the confimation ‘application in the Constitutional Court. Mr Abrahams! appointment has been tainted by the unlawul removal of Mr Nxasana, and the High Court's criticism of Mr Abrahams’ ‘conduct in the Iitigation, Any decision Mr Abrahams takes will be subject to review for bias. Accordingly, CASAC requires that Mr Abrahams and the NPA provide the following Undertakings: 6.1. Mr Abrahams and the NPA will not make a decision regarding the prosecution of the President until such time as the Consttutionsl Court hands down its decision, inthe contkmation application; 6.2. Alternatively, if Mr Abrahams and the NPA do intend to make a decision, they witl sive our client two weeks advance notice oftheir intention to do so. We request that your clionts provide these undartakings by close of business on Friday & January 2018, If they fall to do 80, CASAC reserves its tight to apply to court for an order interdicting Mr ‘Abrahams and the NPA from taking a decision pending the outcome of the confirmation proceedings in the Constitutional Cour, If required to do 60, CASAC will seek a personal costs award against Mr Abrahams, We sincerely hope that this will not be necessary, and lock forward to hearing from you In this regard, Cur clients rights are reserved. Yours faithfully LEGAL RESOURCES CENTRE CARINA DU TOITSA-2, Office of the State Attorney Pretoria Private Bag X 81 ‘Salu Building | PRETORIA Ground Float | 001 518 Thabo Sehume Street Tet (Switchboard): (012) 309 1800 (Direct Line): (012) 209 1672 (Becretary): (012) 309 1686 FauFeks| (012) 309 1640/50 Direct Fax: 096 644 5436 Dover 208 i € 7 December 2017 Enquites: M.O LETSOKO ‘Our rot 5078/2015/214 | Emal: —mletsoko@iustice.gow.za Your rat 111318LIC du Toit ee Legal Resource Centre 16" floor, Fischer Towers, 20 Albert Street MARSHALLTOWN Attention: Carina Du Toit Dear Ms. Du Toit: 4. We reply to your fetter dated 20 December 2017, the content of which is noted, We do not respond to each and every averment therein. Our omission to do so shauld not be construed as any acquiescence therewith, 2. We take issue with your contention that paragraph two of the directions of the Chief Justice of 15 December 2017 supports the demands articulated | in your fetter. The directions authorise the applicants to seek appropriate relief - should they apprehend that a decision may be taken regarding the prosecution of the President of the Republic of South Africa (‘the President) while your application is pending. But you state no reason for i ‘Always quote my reference number Insuch an apprehension having arisen. You have pointed to nothing salient that has changed since the directions were issued. 3, We further cannot accept your claim that it would not be open to Mr. ‘Abrahams to take a decision regarding the Inetitutlon of charges against the President pending the outcome of the confirmation application. There fhas been no finding that any decision Mr Abrahams might take in this regard would be tainted by bias, His powers In terms of the Constitution and the National Prosecuting Authority Act, No 32 of 1998, have by no means been curtailed by the decision of the North Gauteng High Court of 8 December 2017. No such rellef was sought, and no such relief was granted. ¢ 4, As has been widely reported in the medla, the President requested an extension of the deadline to submit his representations regarding criminal charges against him until 19 February 2018. Mr Abrahams deemed it in the interests of the administration of Justice and faimess to accede to the President's request, but curtalled the period within which his representations should reach the National Prosecuting Authority to no fater than 31 January 2018, Mr Abrahams in addition advised that no further extensions would be granted. € ‘Attorneys, representing the Democratic Alliance (‘DA’), Mr Abrahams advised that once he receives the President's representations, he will ‘communicate the process and timeline within which he intends to advise of fis decision in terms of the provisions of section 179(2) of the Constitution. 6. Notwithstanding the above, and without prejudice to my client's rights, we have been instructed to advise you that the NPA wall, likewise, soonest after $1 January 2018, communicate to you the process and timeline ‘to Justice for Al ‘Always quote my referonce ‘ooowithin which Mr Abrahams intends to advise of his decision in terms of the provisions of section 179(2) of the Constitution. Yours faithfully, {0 LETSOKO FOR: STATE ATTORNEY ~ PRETORIA‘Constitonat tigation Ut 18° For ra che Teer «2A Sod Kartal eohanesbarg 700» Sash Aca PO Rox 4i5«obamaurg 200» Sout Aa “Tek (Ot) 63 6801 «Fax (LI) B43 Webse vnvvcarza 0 No, 980003262 PO Re023-004 Your Rot: 5076i2015/214/PM OurRof: 1414318L/¢ du Tott Mr M Letsoko The State Attorney Pretoria e-mail: MLetscko@iustice.aov.ze Fax: 086 644 5436 Dear Mr Letsoko Adonuary 2018 RE: CASAC / PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS 1. We refer to your letter dated 7 December 2017, received on 22 December 2017. 2. We understand from your letter that your client refuses to give an undertaking that he and the NPA will not make a decision regarding the prosecution of the President until such time as the Constitutional Court hands down its decision in the confirmation application. 3. Would you kindly advise whether your client undertakes that if Mr Abrahams or the NPA do intend to make a decision, they will give our client not less than two \weeks' notice of their intention to do so. 4, Our client's rights are reserved. Yours faithfully LEGAL RESOURCES CENTRE CARINA DU TOIT : Le art ie “Hae ial eae, ¥ Mgt Oat ral nc, Kan Denon ie Deer ye eae ‘asda Ade, Stanaun, WR Rofo CNet, Meta &Pany ots as Sond (areca) Tene, ATesin Srafotun ‘etacnnade (Beda? UC ‘Ntakr (re) A An Una, A Ho SP Seraoangrton ‘Sehapoe reo) Bahan © mansSe Ces as KS Wor, WESA-¢ Office of the State Attorney ee Pretoria rivate Bag x 94 Sel ling PRETORR Sound He boat 18 Thebe Shure Sect Tel, {Switchdoardy: (012) 309 1500 (Direct Line): (042) 309 1672 (Secretary): (012) 309 1668 FaxiFaks: (012) 309 1649/50 Direct Fax 086 644 5436 Doosi: 298 09 JANUARY 2018 Enqures MRM, O.LETSOKO Emait ko@iustice. you za iy Ret sovemoTEIZIaPR Case number: 6247012015 TO: LEGAL RESOURCES CENTRE 16" Floor, Bram Fischer Towers 20 Albert Street Marshalltown Johannesburg Attention: Carina Du Toit Carina@Ire. org. za Dear Ms, Du Toit RE: CASAC AND OTHERS /! PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS Access to Justice for Alt \ f Always quote my reference number1. We reply to your letter dated 4 January 2018. 2. Please note that Advocate Shaun Abrahams (“Adv Abrahams’) is presently on holiday. The lead Counsel in the abovementioned matter, as well as one of the Junior Counsel are also out of the country and will return at the end of this week, 3. We advised in our letter erroneously dated 7 December 2017, which was sent to you on 22 December 2017, that President Jacob Zuma (‘the President’) has been afforded until 31 January 2018 to submit represeniations regarding criminal charges against him. It therefore follows that no decision can be taken relating to the prosecution of the President on or before 31 January 2018 and until such time thereafter that Adv Abrahams has been briefed by the prosecuting team 4 You were further advised that once Adv Abrahams receives the President's representations, he will communicate the process and timeline within which he intends to advise of his decision in terms of the provisions of section 179 (2) of the Constitution of South Africa, 1996. 5. Adv Abrahams intends to respond more fully to your letler once he has consulted with Counsel, Access to Justice for All Always quote my reference numberSA-5 Office of the State Attorney Pretoria Prato Bag X91 Sol ing PRetoR Ground tec 0001 316 Thabo Sehume Street Tel: (Switchboard). (012) 309 1500 (Direct Line: (012) 209 1672 (Gecretary): (012) 309 1556 Fox/Faks (012) 309 1649/60, Direct Fax 086 044 5496 Docex: 298 15 JANUARY 2017 Enquires: MO. LETSOKO Email: mletsoko@iustice oov 2a My Ret 507672015214 Your Ref, 1111315UC OU TOIT LEGAL RESOURCES CENTRE 16" Floor, Bram Fischer Towers 20 Albert Street Marshalltown Johannesburg Attention: Carina Du Toit Per email: Carina@\rc.org.za Dear Ms. Ou Toit Re: CASAC AND OTHERS // PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS. 1. We refer to our letter sent to you on 22 December 2017 and particularly paragraph § thereof, in which you were again advised that once the President's representations have been received, Advocate Abrahams will communicate the process and timeline within which he intends to advise of his decision in terms of the provisions of section 179(2) of the Constitution Access to Justice for All, Aways quate my vtorance number —_J\ db2. We advise that in view of the pending matters arising from the judgment of the Full Court, Advocate Abrahams will give your clients two weeks advance notice of his intention to make a decision. Mpho Letsoko State Attorney — Pretoria ‘Access to Justice for All Always quote my reference number geSA-6 (OFFICE OF THE NATIONAL DIRECTOR Or pubic PnOseCuTIONS Viti & Gomis Menge ing 113 Wester Aerie Wenvind Pare Sibert, z Pretoria, 001 a aS ‘NATIONAL PROSECUTNGAITHONTY Pate et92 Priva 0) South Aa Contac rbe 012 048 6750 fin ppp gra vvranpagoias Lieutenant General ¥ Matakata ‘Acting Head: Directorate for Priority Crime Investigation Private Bag x1500 SILVERTON 0184 Email: matakatay@saps.gov.za SonandziT@sapsgov.za Dear General Matakata Sv JACOB GEDLEYIHLEKISA ZUMA RE: ARMS DEAL MATTER I. The above matter refers, 2, In 2009 the Acting Nationel Direotor of Public Prosecutions, M. J. Mpshe SC, withdrew the decision to prosecute Mr Zama, (as he then was), after having considered representations from Mr Zama’s lawyers, 3. Mpshe SC’s decision was taken on review by the Democratic Alliance (DA) to the Gauteng High Court, sitting in Pretoria, where a full bench of that Division set aside his decision to withdraw the charges as being intational and finding that the initial decision to prosecute remained extant, 4, Both the National Prosecuting Authority (NPA) and Mr Zuma sought leave to appeal to the Supreme Court of Appeal (SCA) against the judgment of the full bench of the Gauteng Division of the High Court, which leave to appeal was argued before a full bench of the SCA eatlier today. Although the SCA has reserved judgment, it is highly anticipated that the court will find that Mpshe SCs decision to withdraw the charges against Mr Zuma was irrational and that the charges remain extant. Justice in our society so that people can live In freedom and security L ®6. Should this be the position, | would be required to, inter alia, establish the availability of the relevant witnesses and whether or not the documentary evidence on which reliance was placed to indict Mr Zuma still exists. 7. As you would recall, with the dissolution of the Directorate of Special Operations (D8O/Seorpions) all the files and documents relating to the investigation were handed over to the Directorate for Priority Crime Investigation (DPC). 8. investigating officer in the matter at the time, Cofone] Johan du Plooy, was also absorbed into the DPCI. 9. Your urgent assistance with the following will be most appreciated: 9.1 Kindly advise whether Colonel du Plooy is still the investigating officer. If in the affirmative, kindly provide me with his contact details, If not, kindly provide me. with the name and contact information of the new investigating officer 9.2 Kindly advise me on the availability of the relevent witnesses and/or on any challenges should there be any. 9.3. Kindly advise me on the availability of the documentary evidence on which reliance was placed and/or any challenges in relation thereto should there be any. 9.4 — Kindly provide me with the docket(s) and/or investigation file(s) in relation to the malter. 10... “Krust you find same in order, ADV.S:. ABRAHAMS: NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS: DATE: VUp — 04 - Dom ~ Justice in our society so that people can live In freedom and securityHULLEY & ASSOCIATES Inc. Attorneys, Notaries & Conveyancets Ss A o 7T Out Ref: hulley/gr/007 Your Re Date: 11 October 2017 National Director of Public Prosecutions Private Bag X752 PRETORIA 0001 Email: hzwart@npa.gov.za Dear Adv. Abrahams © STATE v JACOB GEDLEYIHLEKISA ZUMA 1. The above matter refers. 2. We represent Mr. Jacob Gedleyihlekisa Zuma herein. 3. The Supreme Court of Appeal is scheduled to deliver judgment in the matter of the Acting National Director of Public Prosecutions and others v Democratic Alliance (commonly referred to as the “Spy Tapes" matter). oO 4. Following on the arguments before court, it is anticipated that the ‘Court would find that the decision of the then Acting National Director, Durban obannesbure ‘Sulte 17, Corporate Park 128 Hoos, The Forum II Sinembe Crescent, La Lucla Ridge, 4051 Sandton Square, 2 Mane Steet 0. Box 5648, Durban, 4000 Sandon, 2196 Tels 42731 584 7594 els #2711 784 0211 Fax: $2731 584 7678 Fase $27 11 7880575 Emall Address: michact@huleyine.co.za Email Address: michaekofullevinesco.ca Sn Ae Tn TOY AC OY Ta dS TY \ 4a 1) . Adv M. J. Mpshe SC, to withdraw the charges against Mr. Zuma, was procedurally irrational and that the charges would thus be extant. 2 . Should this in fact be the position, then our client has not been afforded the opportunity to have his representations rationally considered and accordingly no proper decision has been taken. You are therefore kindly requested to afford our client an opportunity to submit representations to you in reconsideration of the matter as envisaged by Section 179(2) of the Constitution and after having studied the judgment and prior to serving an indictment on our client in anticipation of the re-enrollment of the matter. 2 The initiation of any court proceedings in our considered view would be premature having regard to the fact that such court proceedings may well be nullified in the event that our representations are successful. We deem it absolutely prudent and in the interest of the administration of justice, that our client be afforded this opportunity given further developments reported in the media which impact on the integrity of the investigation itself. 9. We will endeavour to communicate with you further hereon after having studied the judgment of the Supreme Court of Appeal. < michael Milley HULLEY AND ASSOCIATESOFFICE OF THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Victoria & rifts Menge Biting 123 Westhke Averve, Weavind Park Slverion, Pretoria, 0001 J aN [NATIONAL PROSECUTING AUTHORITY ae Contac ember 012.845 6758. Privat Beg 752, Pretoria, 0001 Ema: dpe goa wera goa Your sal: huey 19x00? 19 October 2017 Hulley & Associates Inc. Attomeys, Notaries & Conveyancers 12h Floor, The Forum Sandton Square 2 Maude Street SANDOWN 2196 Email: michael@hulleyinc.co.za Dear Mr Hulley S v JACOB GEDLEYIHLEKISA ZUMA 1. Your letter, dated 11 October 2017, refers. 2. In your aforementioned letter you inter alfa: 2.1 aver that Mr Zuma had not been afforded the opportunity to have his representations rationally considered; 2.2 request me to afford Mr Zuma an opportunity to submit representations ,®) in light of further developments that have been reported in the media, which impact on the integrity of the investigation itself in reconsideration of the matter in terms of section 179(2) of the Constitution; and 2.3 request me not to institute any court proceedings against Mr Zuma prior to having considered his representations. 3. As you are aware, the Supreme Court of Appeal (SCA) delivered judgment in Zuma v DA; ANDPP v DA on 13 October 2017 4, | have studied the judgment and deem it instructive to record that the SCA inter alia found as follows: 4.1 “in reviewing his own decision to institute criminal proceedings against Mr Zuma, and ultimately making the decision to terminate the prosecution, Mr Mpshe wrongly \ Justice in our society so that people can live in freedom and security Gvinvoked and relied on s 179(5)(d) of the Constitution and s 22(2)(c) of the NPA Act. These provisions deal with the review by an NDPP of a decision of a DPP and were inapposite. Thus, the concessions on behalf of Mr Zuma and the NPA that, on that basis, the decision to terminate the prosecution was liable to be set aside, were rightly mado.” Para [94] (xi) 4.2 “The allegations by Mr Hofmeyr of political machinations on the part of Mr McCarthy were irrelevant because they were unconnected to the integrity of the investigation of the case against Mr Zuma and the prosecution itselt.” Para [94] (i) 4.3. “The reasons for discontinuing the prosecution provided by Mr Mpshe do not bear scrutiny for the recordings themselves on which Mr Mipshe relied, even if taken at face value, do not impinge on the propriety of the investigation of the case against Mr Zuma or the merits of the prosecution itself.” Para [94] (iv) 4.4"... Mr McCarthy's alleged motive in relation to the timing of tho service of the indictment was ultimately irrelevant.” Pata [94] (v) 4.5 “The case law that formed the basis for Mr Mpshe's decision to terminate tho prosecution does not, in fact, support i.” Para [94] (vii) 4.8“... Discontinuing a prosecution in respect of which the merits are admittedly good and in respect of which there is heightened public interest because of the broadth and nature of the charges and the person at the centre of it holds the highest public office, can hardly ... advance the course of justice or promote the integrity of the NPA" Para {94] (x) 47“... Regreitably, tho picture that emerges is one of Mr Mpshe and Mr Hofmeyr straining to find justification for the termination of the prosecution.” Para [94] (x) 4.8 “Thus ... the decision to terminate the prosecution was irrational ...” Para [94] (xi) In addition to the above, the Court specifically inter alia recorded the following: 5.1 That according to Mr Hofmeyr, the written representations made on behaif of Mr Zuma on 10 February 2009, and which Mr Mpshe considered, covered the following topics: “(a) The merits of the prosecution; he Justice In our society so that people can live In freedom and security Qh(6) His intention to challenge the inclusion of racketeering charges in the indictment and whether this would inevitably lead to delays in the prosecution; () Mr Zuma's contention that delays in finalising the prosecution and the trial would undermine his right to a fair tie, (d) The financial costs of the prosecution; (e) Policy and legal implications associated with prosecuting a sitting President. () The risks of poltical, economic and social instability, should the NPA proceed with its prosecution of Mr Zuma; (@) The impact of the trial on the administration of justice. They argued that even if the NPA secured a conviction, the majority of South Africans would still believe that Mr Zuma had been treated unfairly; (1) The existence of a political conspiracy, of which the NPA was part, to discredit Mr Zuma.” Paras [9] — [10] 5.2 That Mr Mpshe, on 6 April 2009, in publicly announcing his decision to discontinue the prosecution of Mir Zuma, considered the following submitted by Mr Zuma’s legal representatives: on The substantive merits . The fair trial defences . Tho practical implications and considerations of coninued prosecution. . The policy aspects militating against prosecution.” Para [24] C and that Mr Mpshe could find nothing in respect of the first three grounds ) that miltated against the continuation of the prosecution. 6. _Inlight of the judgment of the SCA, it appears that you may be severely constrained insofar as the submission of further representations to me is concemed, unless the envisaged representations relate to issues not previously considered. 7. On47 October 2017, | met with the Acting Head of the Directorate for Priority Crime Investigation (DPCI), Lt General Matakata and the investigating officer, Col Johan du Plooy, who will revert to me on or before 30 November 2017 in relation to the availability of the witnesses in the matter. (The list of witnesses in terms of 8144(3)(a) of Act 51 of 1977, prior to the matter being withdrawn against Mr Zuma, contained 218 witnesses.) ; AN Justice in our society so that people can live in freedom and security hy8. As a result, Mr Zuma’s representations should reach my office by no later than 30 November 2017. 9, {will then soonest thereafter advise on the way forward. 10, [trust you find same in order Yours gincerely . ABRAHAMS, NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS DATE: 2 p -\w- Loin AD’ As Ze Justice In our society so that people can live in freedom and securitySA-S OFFICE OF THE NATIONAL DIRECTOR: | OF PUBLIC PROSECUTIONS Victoria & Geis Merge Bung 125 Westie Avenue, Weaving Park Siverton, Pretoria, 0001 Marna eceecieNnuon Private Bag X752, Pretoria, OOO Snare Contact nurber 12.85 6750 Ena noppainpagonze swwenpago2e INTERNAL MEMORANDUM TO: ADV. MOIPONE NOKO DIRECTOR OF PUBLIC PROSECUTIONS: KWAZULU-NATAL cc: ADV SIBONGILE MZINYATHE ACTING DEPUTY NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS & HEAD: NATIONAL PROSECUTIONS SERVICE FROM: ADV. S.K. ABRAHAMS NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS SUBJECT: PROSECUTION TEAM: S V JACOB GEDLEYIHLEKISA ZUMA DURBAN CENTRAL CAS 1941/08/2003 DATE: 27 NOVEMBER 2017 Dear Adv Noko 4. Our previous discussion hereon refers. 2. As you are aware, the Supreme Court of Appeal delivered judgment in ZUMA v DA; ANDPP v DA (77412016 & 1170/2016) [2017] ZASCA 146 on 43 October 2017. 3. As a result of the aforementioned judgment, | wrote to Mr Zuma’s lawyers, namely Hulley & Associates Inc. on 19 October 2017. A copy of the sel explanatory letter is attached hereto as Annexure “A” 4, This matter has a long history. When the charges were formally withdrawn in court in April 2009 after the public announcement by the then Acting National Justice In our society so that people can live In freedom and security@) BD Director of Public Prosecutions (ANDPP), Adv Mpshe SC, that he would be discontinuing the prosecution of Mr Zuma, the lead prosecutor in the mai was Adv Williarn (Billy) Downer SC, wha was duly assisted by other senior merbers of the National Prosecuting Authority (NPA). Mr Downer is now a Senior Deputy Director of Public Prosecutions (SDDPP) in the Office of the Director of Public Prosecutions (DPP): Western Cape. After due consideration, | have decided to appoint you as the lead prosecutor in this matter, Who better to assign as the lead prosecutor than the most senior prosecutor in the provincial jurisdiction within which the matter falls! 6. I have also decided to strengthen the prosecuting team with the following members to render the requisite assistance fo you * Adv Lungi Mahlati SC (OPP: Eastern Cape) e Adv Billy Downer SC (SDDPP: Western Cape) © Adv Raymond Mathenjwa (Senior DDPP: Priority Crimes Litigation Unit (PCLU)) © Adv Alnicia Coetzee (SDDPP: Specialised Commercial Crime Unit and Regional Head: Free State) 7. In the event that the assistance of the Asset Forfeiture Unit (AFU) is required, I hereby delegate the following AFU officials: * Adv Knorx Molelle (Acting Special Director & Head of Operations: AFU) ° Adv Priya Biseswar (SDDPP: AFU and Regional Head: Gauteng) 8. Should you need additional resources to strengthen the team further, feel at liberty to engage me directly hereon. 8. The investigating officer is Col Johan du Plooy of the DPCI Head Office, Pretoria, who can be contacted on 082 470 9833. Col du Plooy was the investigating officer at the time when the matter was withdrawn in 2009. 10.1 trust you find same in order. EN “D = ‘S.K, ABRAHAMS NDPP DATE: t9- 'i- Duin Justice in our soclety so that peopic can live in freedom and security ahSA-(0 OFFICE OF THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Vitoria & Grifiths Monge Bung, 123 Wente Avenue Weavnd Park Silverton, Pretoria, 000! "NATIONAL. PROSECUTING AUTHORITY Private Bag X752,Pretoria,0001 ar (Contact numba ones «7s Erna epocepa.gouza wonvenpagoura Your re: huleyle007 7 December 2017 Mr M Hulley Hulley & Associates Inc Suite 9B, 12! Floor The Forum Sandton Square © 2 Maude Street Sandown 2196 Email: michael@hulleyinc.co.za Dear Mr Hulley STATE v JACOB GEDLEYIHLEKISA ZUMA 1 Your letter dated 24 November 2017, which was received by my office on 28 November 2017, refers. Your client’s request for an extension of the timeline in which his representations should be submitted to me is granted Notwithstanding the aforementioned, | regrettably cannot accede to tho date of 19 February 2018 as proposed in your aforementioned communication Although | empathise with your client’s position, you will appreciate that this matter has an extraordinary long history and has to be brought to finality sooner rather than later. With reference to para 5 of your aforementioned letter, | deem it prudent to record that the nature of the charges are outlined in the indictment previously served on your client and which was pending in the KwaZulu-Natal High Court, Durban prior to the withdrawal thereof in April 2008. In addition hereto, | deem it necessary to also advise that | have recently been informed by the Acting Head of the Directorate for Priority Crime Investigation (DPCI), in response to my earlier request in relation to the availability of witnesses, that all 218 witnesses listed in the list of witnesses in terms of section 144(3)(a) of Act 51 of 1977, prior to the matter boing withdrawn, have been located and have confirmed their availability to testify in the matter should their attendance be required. | have also received numerous communications from the Democratic Alliance (DA) through their legal representatives, namely Minde, Schapiro & Smith in which the latter request to be +H i Juselee in our seclaty 60 that people can tive in trondom and security /)provided with a copy of your representations. | would appreciate your views hereon in the representations you intend submitting to me. 8. Your representations should now reach my office by no later than 34 January 2018 9. Regrettably, any further requests for an extension of time for the submission of your client's representations will not be entertained = ADV SK ABRAHAMS _ ©) NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS ~ DATE: “1 = 2 = 2a © NA