The African National Congress (ANC) has announced that it will be joining its president, Jacob Zuma, in his application to the Constitutional Court as amicus curiae, and in his representations to the national director of public prosecutions. The basis of the legal approach the ANC has chosen to follow is whether it is in the public interest for Zuma’s prosecution to continue.

Public interest is often contrasted with private or individual interest, under the assumption that what is good for society may not be good for a given individual and vice versa. This definition allows us to “hold constant” private interests (rights) in order to determine those interests that are unique to the public.

However, society is composed of individuals, and the public interest must be calculated with regard to the interests of its members. There is wide-ranging debate about whether the public interest requires or destroys the idea of human rights, about the degree to which the ends of society are the ends of its individual members, and the degree to which people should be able to fulfil their own ambitions even against the public interest.

It is also possible that in some cases advancing the public interest will hurt certain private interests, which risks the “tyranny of the majority” in any democracy, since minorities’ interests may be overridden. On the other hand, we are all a minority in some capacity ­ thus, protection of minority rights arguably becomes part of the public interest.

Before the National Prosecuting Authority (NPA) may proceed with a prosecution, it needs to evaluate its case against two tests ­ the evidential test, which analyses the state’s evidence by testing its reliability and also anticipating whether the state’s evidence may be successfully countered by the accused’s defence; and the public interest test.

In 1951, the attorney-general of the UK, Hartley Shawcross, said: “It has never been a rule in this country ­ I hope it never will be ­ that suspected criminal offences must automatically be the subject of prosecution…. The public interest must be considered in each case…. A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those in favour….” Every UK attorney-general since has supported this view.

It is debatable whether it is in the public interest that charges should be pursued against Zuma. It is further a point of contention who in fact determines what is in the public interest. For a country that is in transition and faced with serious domestic and international challenges, many would argue that to persist with the pending charges is not only extravagant, but reckless and foolhardy.

SA is a constitutional state in which the law is supreme and all are equal before it. It is a system that promotes fairness and equality and provides safeguards against abuse. There are many instances in which our legal system has been given to flexibility and accommodation, such as the granting of conditional amnesty to perpetrators of crimes during apartheid as a result of the truth commission, and settlements reached with the South African Revenue Service by those caught on charges of tax evasion.

It is a likely fact that the ANC will win the April election. The current period of transition should allow the new leader (Zuma) to prepare for such an eventuality. The ANC would define the focus in relation to civil society, business, foreign governments and others. Leaders of such interest groups may wish to engage Zuma with a view to influencing policy direction and the programme of the new government. This currently cannot happen effectively.

The timing of the commencement of the Zuma trial in August creates further local and international uncertainty. This would not only destabilise the ANC but, more pertinently, severely prejudice the ability of the nation to function, to allow the state to serve the interests of the populace.

It would therefore be all the citizens of SA who would bear the brunt of a trial that could last quite possibly well into 2011 *1. This can surely not be in the public interest *2.

It is vital for the NPA to apply its mind and evaluate the principle of public interest with specific reference to, among other things, the NPA’s costs to date (which are rumoured to be between R50m and R100m *3), Zuma’s legal costs (which the state is obliged to pay), the effect of the Zuma trial on the economy, the governability of SA and international investor confidence.

The public protector found in 2003 that Zuma’s rights had been severely abused. If the NPA continues with the prosecution, it will be flouting findings of the public protector that were directly against it and its former director, Bulelani Ngcuka. It cannot be in the public interest for one state agency to undermine the findings of another. If the NPA remains of the belief that it is in the public interest to continue with the prosecution, it should publicly state the reasons for holding such a belief *4.

Heath is a senior advocate and CE of Heath Executive Consultants *5.

With acknowledgements to Willem Heath and Business Day.