‘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
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.”