Media statement by Adv M L Mushwana, the Public Protector of the Republic of South Africa on the investigation of a complaint by Deputy President J Zuma against the National Director of Public Prosecutions and the National Prosecuting Authority in connection with a criminal investigation conducted against him

28 May 2004

The Public Protector investigated a complaint by Deputy President Jacob Zuma against the National Director of Public Prosecutions (the National Director) and the National Prosecuting Authority (the Prosecuting Authority) in connection with a criminal investigation that was conducted against him. The criminal investigation related to allegations of the improper involvement of the Deputy President in the Strategic Defence Procurement of the South African National Defence Force, commonly referred to as �the arms deal�.

On 23 August 2003, the National Director issued a press statement stating that although there is a prima facie case of corruption against the Deputy President, he would not be prosecuted, as the prospects of success were �not strong enough�. This announcement sparked off a media frenzy and a public debate regarding Mr Zuma�s alleged or suspected involvement in corrupt relationships and improper conduct.

The complaint by the Deputy President was lodged on 30 October 2003. In the main, Mr Zuma raised his concerns about the:

  • Manner in which the criminal investigation against him was conducted;

  • Leaking to the media by the Prosecuting Authority of confidential information relating to the criminal investigation;

  • Failure by the Prosecuting Authority to inform him of the criminal investigation against him;

  • Public statement by the National Director that there is a prima facie case of corruption against him;

  • Apparent continuation of the criminal investigation after it was decided not to prosecute him;

The proceedings of the Hefer Commission of Enquiry into allegations of spying against the National Director coincided with the investigation by the Public Protector of the complaint by the Deputy President. However, as the Commission made no finding on the allegations of abuse of office by the National Director, it had no influence on the investigation. President Mbeki took note of remarks made by Judge Hefer in his report in regard to leaks of confidential information by the Prosecuting Authority and commissioned an internal investigation. It found:

  • Nothing that suggested that the National Director could have been party to the leaks; and

  • Strong circumstantial evidence that privileged information in the possession of the Prosecuting Authority found its way to unauthorized persons outside its structures.

In response to the recommendations made by the inquiry to prevent such leaks from occurring again, the President instructed the (new) Minister of Justice and Constitutional Development, together with the Justice, Crime Prevention and Security Cluster, to:

  • Develop, as a matter of urgency, a proper security management system that meets the accepted standards of information security. This should include guidelines to ensure that no privileged information lands in the hands of �sources� used in the course of investigations;

  • Ensure that all personnel of the Prosecuting Authority, including external consultants are properly screened in terms of section 19B of the National Prosecuting Authority Act, 1998 (the NPA Act) and the Intelligence Services Act, 1994; and

  • Ensure that the Ministerial Coordinating Committee, established in terms of section 31 of the NPA Act urgently attend to all matters of relationships between the Directorate: Special Operations and other intelligence and security institutions to improve effective coordination in the performance of their functions.

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In order to determine which of the remaining matters raised by the Deputy President could be investigated by the Public Protector, the following had to be considered:

  • The jurisdiction of the Public Protector to investigate the affairs of the Prosecuting Authority;

  • The independence of the Prosecuting Authority; and

  • Avoidance of matters that are sub judice.

It was decided to investigate whether:

  • The public statement by the National Director that there is a prima facie case of corruption against the Deputy President, but that he would not be prosecuted, resulted in the Deputy President being improperly prejudiced;

  • The said statement was fair and proper under the circumstances;

  • The Deputy President was properly and timeously informed of the criminal investigation against him; and

  • The criminal investigation against the Deputy President continued after the decision not to prosecute him was publicly announced.

The investigation was conducted in terms of section 7 of the Public Protector Act, 1994. The Public Protector decided that it would be in the best interest of the parties involved in the complaint by the Deputy President and in the criminal matter of the State v S Shaik and others, to conduct the investigation by means of correspondence and the submission of reports.

In the main, the investigation comprised:

  • An evaluation and consideration of voluminous documentation submitted by the Deputy President;

  • Consideration of the Joint Investigation Report into the Strategic Defence Procurement Packages;

  • A study of the transcript of the proceedings and the report of the Hefer Commission of Enquiry;

  • Telephonic discussions between the Public Protector and the Minister;

  • A meeting between the Public Protector and the Minister;

  • A meeting between the Public Protector and the National Director and senior officials from his office;

  • Correspondence between the Public Protector and the Minister;

  • Correspondence between the Public Protector and the National Director;

  • A study of a report submitted to the Minister on 23 August 2003 by the National Director, entitled: �Report in terms of section 35(2)(b) of the National Prosecuting Authority Act pertaining to the Arms Deal Investigation into allegations of corruption involving Mr Jacob Zuma, in particular insofar as it relates to his relations with Schabir Shaik, the Nkobi Group of companies and the Thomson/Thales group of companies�;

  • Consideration of the contents of the Summary of Substantial Facts in terms of section 144(3) of the Criminal Procedure Act, 1977, that was presented by the Prosecuting Authority in the High Court (Durban & Coastal Local Division) case of: The State v Schabir Schaik and Others;

  • A study of the relevant provisions of the Constitution, the Public Protector Act, the NPA Act, the Prosecution Policy, the United Nations Guidelines on the Role of Prosecutors and other legislative prescripts and common law principles applicable to the matter in question;

  • Consideration of a legal opinion obtained from independent Senior Counsel in regard to certain matters pertaining to the investigation; and

  • Consideration of case law relevant to the matters investigated.

During the investigation the Public Protector relied on the cooperation of the former Minister of Justice and Constitutional Development (the Minister) and the National Director, as provided by the Constitution, 1996. They were approached on several occasions to provide information and their responses to the complaints of the Deputy President. Apart from repeatedly stating that the matters that Mr Zuma complained about were sub judice and therefore beyond investigation by the Public Protector, they failed to provide any assistance.

The investigation was conducted in a manner that did not interfere with the performance of the powers and functions of the Prosecuting Authority.

The sub judice rule had no bearing on the investigation, even if such investigation was to extend to the issues that have arisen or may arise in the court case against Mr Shaik and others. Particular care and caution were taken not to traverse matters that would cause the risk of the Public Protector having to make public statements in connection with this criminal case. Care was also taken not to create a perception that the Public Protector was questioning or reviewing the decision by the National Director not to prosecute the Deputy President.

Having considered the meaning of �a prima facie case� in a criminal matter, it was deduced that whether or not such a case exists against a person

  • Is determined by a court of law;

  • After hearing the evidence submitted by the prosecution and such evidence has been subjected to cross examination and the version of the accused has been put to the witnesses for comment; and

  • When satisfied that a reasonable person might, in the absence of further contesting evidence by the accused, convict him/her of the crime he/she is being charged with.

It was found that the right to human dignity contained in the Bill of Rights (Chapter 2 of the Constitution, 1996) includes both the value of the intrinsic worth of a person and his/her individual reputation built upon his or her own individual achievements. Mr Zuma�s right to human dignity could, under the circumstances relevant to the investigation, only have been justifiably limited in terms of a law of general application. Neither the United Nations Guidelines on the Role of Prosecutors nor the NPA Act and the Prosecution Policy provide for a public statement regarding a person�s apparent but not provable guilt. To the contrary, these provisions prohibit inappropriate media statements and unfair conduct by prosecutors.

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From the investigation, the following key findings were made:

  • The Prosecuting Authority is accountable to Parliament in respect of the exercising of its powers and the performance of its functions and duties;

  • The Prosecuting Authority is also accountable to Parliament for its decisions regarding the institution of prosecutions;

  • The Minister and the National Director were constitutionally obliged to cooperate with the Public Protector in the investigation of the complaints of the Deputy President;

  • The reluctance and failure by the Minister and the National Director to cooperate with the Public Protector in the investigation was improper and unconstitutional. It resulted in the Public Protector having to conclude the investigation without the benefit of proper responses by those implicated by the complaints of the Deputy President;

  • The press statement made by the National Director on 23 August 2003, that there is a prima facie case of corruption against the Deputy President, but that he would not be prosecuted, unjustifiably infringed upon Mr Zuma�s constitutional right to human dignity and caused him to be improperly prejudiced;

  • The press statement (referred to above) was unfair and improper;

  • The Deputy President had probably not been informed by the Minister and the National Director of the criminal investigation against him shortly after it commenced, as was publicly claimed by the National Director;

  • As the Minister was replaced in the Cabinet after the 2004 elections, it would serve no purpose to make any recommendations to Parliament in regard to his improper failure to cooperate with the Public Protector.

  • The provisions of section 31 of the NPA Act that established a Ministerial Coordinating Committee have not been implemented.

  • The steps taken by the President to attend to the remarks made by the Hefer Commission in regard to the leaking of confidential information by the Prosecuting Authority should be commended. The recommendations made by the investigators and the instructions given by the President in this regard, are supported.

The Public Protector recommended that Parliament take urgent steps to:

  • Ensure that the National Director and the Prosecuting Authority are held accountable, by virtue of the provisions of sections 41(1) and 181(3) of the Constitution and section 35 of the National Prosecuting Authority Act, 1998, for:

    • Failing to cooperate with the Public Protector in the investigation of the complaint of the Deputy President;

    • Infringing upon the Deputy President�s constitutional right to human dignity and thereby causing him to be improperly prejudiced; and

    • Acting in an unfair and improper manner in regard to the Deputy President.

  • Ensure that the Ministerial Coordinating Committee contemplated by section 31 of the National Prosecuting Authority Act, 1998:

    • Convenes as a matter of urgency; and

    • Determines policy guidelines in respect of the functioning of the Directorate of Special Operations that would prevent a recurrence of the improprieties referred to in the report on the investigation.

The Public Protector wants to thank the media for their understanding, indulgence and cooperation during the investigation.

Enquiries: Adv C H Fourie- 082 333 5620
Electronic copies of the report can be obtained
from Ms N Teichmann.- 082 333 5624

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