‘Mr Zuma, we have a prob­lem’

A five-year bat­tle to hold back the spy tapes ran out of steam on Fri­day. Charl du Plessis re­ports

CityPress - - News -

The lawyer who beat the rape charge for Pres­i­dent Ja­cob Zuma had a slightly bat­tered look about him when he emerged into the sunny Bloem­fontein morn­ing shortly be­fore mid­day on Fri­day. It took less than two hours of a with­er­ing tor­rent of ques­tions from five Supreme Court of Ap­peal (SCA) jus­tices for Ad­vo­cate Kemp J Kemp to con­cede that Zuma had no case when it came to keep­ing the spy tapes from the DA.

The of­fi­cial op­po­si­tion wants to re­view for­mer act­ing Na­tional Pros­e­cut­ing Au­thor­ity (NPA) head Mokotedi Mp­she’s de­ci­sion to drop cor­rup­tion charges against Zuma, but has been tied up in at­tempts to get its hands on the spy tapes that got Zuma off the hook for five years.

That fight now seems to be fi­nally be over.

Kemp’s open­ing ar­gu­ment on Fri­day was in­ter­rupted by Jus­tice Mahomed Navsa in less than a minute.

Navsa asked if Kemp would con­cede that the case was “an ab­ject les­son in how not to con­duct op­pos­ing lit­i­ga­tion”.

It was the first of a few con­ces­sions Kemp would be forced to make as he bat­tled to an­swer the plethora of ques­tions the jus­tices asked him.

The ar­gu­ment Zuma’s ad­vo­cate was try­ing to per­suade the court of was sim­ply that the spy tapes were part and par­cel of the con­fi­den­tial rep­re­sen­ta­tions Zuma had made to the NPA.

But Jus­tice Fritz Brand im­me­di­ately wanted to know how “some­thing [the spy tapes] which had been done be­fore [Zuma’s] rep­re­sen­ta­tions were made to dis­close the con­tents of those rep­re­sen­ta­tions”.

Jus­tice Lumka Tshiqi then weighed in: “And what about the fact that the NPA got the records and the tran­scripts di­rectly from the Na­tional In­tel­li­gence Agency, apart from what Mr Zuma and his team dis­closed to the NPA?”

Kemp was asked to look for any fac­tual ev­i­dence to sup­port his claim that the spy tapes were part of Zuma’s con­fi­den­tial rep­re­sen­ta­tion, con­sid­er­ing nei­ther Zuma nor Mp­she had made an af­fi­davit to sup­port this claim.

Jus­tice Vis­vanathan Pon­nan said: “We don’t have an af­fi­davit from your client, so what is there left to spec­u­late about?”

Af­ter only an hour, Kemp was lean­ing heav­ily against the podium and Zuma’s case was in pieces.

“So the ar­gu­ment is dead?” asked Navsa. A de­flated-look­ing Kemp replied: “The ar­gu­ment is dead.”

The only person who might have had a worse day than Kemp in court was, how­ever, not there.

It was clear that some of the jus­tices of the court also took a dim view of the way for­mer act­ing NPA head Nomg­cobo Jiba han­dled the case on be­half of the pros­e­cut­ing au­thor­ity.

Jiba, whose for­mer hus­band fa­mously re­ceived a pres­i­den­tial par­don from Zuma, was picked by the pres­i­dent to head up the NPA in an act­ing ca­pac­ity in 2011. She was at the helm of the or­gan­i­sa­tion when the SCA com­pelled it to pro­duce a record of all the doc­u­ments Mp­she con­sid­ered when he de­cided to drop cor­rup­tion charges against Zuma.

Dur­ing DA Ad­vo­cate Sean Rosenberg’s brief ar­gu­ment, Navsa said it was “in­cred­i­ble” that Jiba had adopted a stance whereby she would sim­ply abide the court’s order when it came to the cur­rent lit­i­ga­tion.

As a re­sult, there were no lawyers in court for the NPA on Fri­day.

“Surely you would ex­pect the [na­tional direc­tor of pub­lic pros­e­cu­tions] to have for­mu­lated a view on the re­lease [of the spy tapes],” said Navsa.

There were again harsh words when it came to Jiba’s con­tention that she could not file any of the NPA’s in­ter­nal mem­o­ran­dums, notes and min­utes of meet­ings re­lated to the de­ci­sion to drop cor­rup­tion charges against Zuma be­cause they all re­fer to his con­fi­den­tial sub­mis­sions.

Jus­tice Brand won­dered aloud if “you can re­ally be­lieve [the na­tional direc­tor of pub­lic pros­e­cu­tions] if she says in a blan­ket state­ment ev­ery sin­gle one of these doc­u­ments and mem­o­ran­dums ac­tu­ally re­fer to the rep­re­sen­ta­tions”.

The court has asked the par­ties to try to come to an agree­ment in terms of which a se­nior ad­vo­cate will be ap­pointed to de­cide which doc­u­ments can be handed to the DA.

Judg­ment in the mat­ter is yet to be handed down, but given Kemp’s con­ces­sion, it seems clear the court will order the NPA to hand the spy tapes over to the DA.

The court will then move on to de­cid­ing the main case: whether the de­ci­sion to drop cor­rup­tion charges against Zuma should be over­turned.

Jus­tice Navsa sum­marised while ad­dress­ing Kemp: “If the tapes are what Mr Mp­she says they are, Mr Zuma is home free. If they don’t say what Mr Mp­she says they say, well, then you have a prob­lem.”

Mahomed

Navsa

Nomg­cobo

Jiba

Vis­vanathan

Pon­nan

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