I had the privilege of having listened to inputs and comments of very eminent jurists of the NPA and I am thankful to them for their candid and frank arguments.
"It was then and it still is difficult for me to comprehend that which is set out below could have happened. The painful facts that I am about to put before you have serious implications for the integrity and independence of the NPA especially regarding the prosecution of Mr Zuma."
"We believe that it is vital that the NPA must expose this conduct and deal with the consequences as honestly and constructively as possible if it is to have any chance of rebuilding its credibility and integrity."
"Our democracy will have to find ways to learn from this bitter experience and to build a stronger and more independent NPA.
"Over the last three weeks the NPA has been engaged in a difficult and painful process of dealing with allegations that the case of Mr Zuma has been affected by manipulation and abuse of process."
"We have come across information about collusion between the former heads of the Directorate of Special Operations (DSO) and NPA to manipulate the prosecutorial process before and after Polokwane elections. We regarded these allegations as extremely serious and set out to investigate them as fully as possible within the limited time at our disposal.
"I will return to the result of our investigation and its impact on the case in due course."
It is against this broad principle of abuse of process that the conduct of Mr McCarthy must be seen and tested. The question for close consideration is encapsulated in expressions such as "so gravely wrong", "gross neglect of the elementary principles of fairness", "so unfair and wrong", "misusing or manipulating the process of the court." If the conduct can be so categorized, it would be unconscionable for the trial to continue.
Using one’s sense of justice and propriety as a yardstick by which McCarthy’s abuse of the process is measured, an intolerable abuse has occurred which compels a discontinuation of the prosecution.
What actually triggers the abuse of process is a major determining factor, because it is that trigger which determines the purpose of the abuse and reveals whether the conduct in question is directed at a legitimate or illegitimate purpose.
In the present matter, the conduct consists in the timing of the charging of the accused. In general, there would be nothing wrong in timing the charging of an accused person, provided that there is a legitimate prosecutorial purpose for it and the accused is aware, should be aware or has been made aware of such purpose. For example, the timing may be related to the availability of witnesses, or the introduction or leading of specific evidence to fit in with the chain of evidence.
It follows therefore that, any timing of the charging of an accused person which is not aimed at serving a legitimate purpose is improper, irregular and an abuse of process. A prosecutor who uses a legal process against an accused person to accomplish a purpose for which it is not designed abuses the criminal justice system and subjects the accused person to that abuse of process.
Abuse of process through conduct which perverts the judicial or legal process in order to accomplish an improper purpose offends against one’s sense of justice.
The above implies the following:
Mr McCarthy used the legal process for a purpose outside and extraneous to the prosecution itself. Even if the prosecution itself as conducted by the prosecution team is not tainted, the fact that Mr McCarthy, who was head of the DSO, and was in charge of the matter at all times and managed it almost on a daily basis, manipulated the legal process for purposes outside and extraneous to the prosecution itself. It is not so much the prosecution itself that is tainted, but the legal process itself.
Mr McCarthy used the legal process for a purpose other than which the process was designed to serve, i.e. for collateral and illicit purposes. It does not matter that the team acted properly, honestly, fairly and justly throughout.
Mr McCarthy’s conduct amounts to a serious abuse of process and offends one?s sense of justice.
What Mr McCarthy did was not simply being over-diligent in his pursuit of a case, it was pure abuse of process.
If Mr McCarthy’s conduct offends one’s sense of justice, it would be unfair as well as unjust to continue with the prosecution.
In the light of the above, I have come to the difficult conclusion that it is neither possible nor desirable for the NPA to continue with the prosecution of Mr Zuma.
It is a difficult decision because the NPA has expended considerable resources on this matter, and it has been conducted by a committed and dedicated team of prosecutors and investigators who have handled a difficult case with utmost professionalism and who have not been implicated in any misconduct.
Let me also state for the record that the prosecution team itself had recommended that the prosecution should continue even if the allegations are true, and that it should be left to a court of law to decide whether to stop the prosecution.
However, I believe that the NPA has a special duty, as one of the guardians of the constitution and the Bill of Rights, to ensure that its conduct is at all times beyond reproach.
As an officer of the court I feel personally wronged and betrayed that on a number of occasions I have given evidence under oath that there has not been any meddling or manipulation of the process in this matter.
It is with a great regret that I have to say today that in relation to this case I can not see my way clear to go to court in future and give the nation this assurance.
The need for further investigation
The NPA has taken the information that was uncovered very seriously and has done its utmost to get to the bottom of all the allegations that it has investigated. It has also taken the initiative to cooperate fully with the Browse Mole investigation into possible illegal intelligence gathering activities in the DSO, and has managed to uncover significant new information in the process.
The NPA has also tried to investigate and asses the impact of the revelations on other aspects of the our work that happened in the past.
However, in the time available, it has simply not been able to deal fully with all these aspects and come to firm conclusions. While the NPA will continue with its investigations, it has also decided to prepare a full report and present it to the Minister of Justice and the President to decide on further action.
The NPA believes that it is vital that a full and proper investigation must be conducted by a judge or independent person to make recommendations about any further actions to be taken, whether of disciplinary or criminal nature, as well as the framework within which the NPA operates to ensure that such abuses never occur again.