Spy tapes won’t hurt Zuma, say officials
Recordings are more damaging to NPA than they are to Number One
ESCAPE ARTIST Experts say it is likely President Jacob Zuma will get off scot-free
Officials involved in the decision to drop corruption charges against President Jacob Zuma say the release of the spy tapes is unlikely to result in a successful corruption case against him. City Press has learnt the National Prosecuting Authority (NPA) is planning to hit back at the DA by saying evidence of the political interference in Zuma’s prosecution went beyond what was contained in the tapes.
The NPA resisted releasing the tapes in 2009, when charges against Zuma were dropped, because of how damning their contents were to the institution. It was believed at the time that it was impossible for Zuma to receive a fair trail.
A source in the justice department said the tapes will now force the DA to say “you cannot prosecute the man [Zuma]” because of the amount of executive interference in Zuma’s prosecution.
The DA said the 62 pages of transcripts released to them and made public this week by the Sunday Times could have been “cherrypicked” from the tapped phone calls to support the NPA’s claim of political meddling.
This week, the party’s lawyers will listen to at least 100 hours of tapes that hadn’t been transcribed and that were still with the NPA, and that they believe could give “context” to the tapes that were released and put them in a different light. They are also due to obtain reams of memos and minutes from the NPA that could have been used in the decision to drop the charges against Zuma.
DA federal council chair James Selfe said the transcripts that were released to the DA were those that acting NPA head Mokotedi Mpshe used when he made the decision to drop corruption charges against Zuma.
“We have to satisfy ourselves that the transcripts [already handed over to the DA] weren’t cherry-picked to support a particular point of view, so we asked to be given the opportunity to listen to all the tapes,” he said.
Many of the conversations on the transcripts that were released took place between former Scorpions head Leonard McCarthy, who now works at the World Bank in Washington, and Bulelani Ngcuka, who headed the NPA until 2004 and was a campaigner for former president Thabo Mbeki at the time the conversations took place.
Selfe said forensic experts would also have to ascertain that the tapes weren’t tampered with. Lawyers would then file supplementary affidavits in the DA’s case to have the decision to drop charges against Zuma reviewed, and the case could be in court again in March.
If the court rules that the decision to drop charges against Zuma was flawed, the charges relating to corruption against him would automatically be reinstated.
A source closely involved in the dropping of charges against Zuma in 2009 said although some Zuma confidants had wanted to, the tapes weren’t kept secret at the time “to heal the nation”. The tapes were damaging to the NPA and Mbeki, and Zuma had wanted to show “victor’s goodwill”.
Zuma’s lawyers told the Supreme Court of Appeal in August they would not oppose the release of the spy tapes any longer.
The source said Zuma was now free from the obligation of protecting the country’s legal institutions.
In terms of the separation of powers, the court is likely to say the decision cannot be reviewed. “Even if it were, the defence can use the fruit of a poisoned tree argument [in Zuma’s corruption trial],” he said. He also said the Hefer Commission had found that the NPA “wasn’t being used for the purposes it was intended for”.
The commission was set up in response to allegations that Ngcuka was an apartheid spy.
In the months running up to the charging of Zuma at the end of 2007, the NPA believed there was an “assault” on the NPA, starting with efforts to halt the prosecution of former police chief Jackie Selebi on corruption charges. This included the suspension of former NPA head Vusi Pikoli. The NPA believed that, although there was a decision to charge Zuma only after the start of the new year, the charging was moved forward to December 28 after Mbeki had met with McCarthy following his defeat by Zuma at the ANC conference in Polokwane in 2007.
McCarthy, in a voicemail to former Special Investigating Unit deputy head Faiek Davids, said he saw “the man” (believed to be referring to Mbeki) and “we planning a comeback strategy”.
Another NPA source also said that the charges could not be reinstated because of the precedent it would create. “If that sort of behaviour [political meddling] is tolerated in the NPA, is it okay?” Some legal experts differ, however. Constitutional expert Pierre de Vos said the spy tapes were not that important for the decision on whether to reinstate charges against Zuma.
He said the Supreme Court of Appeal had found in 2009 that a prosecution “is not wrongful merely because it is brought for an improper purpose”. This means that, although the spy tapes proved interference, this wasn’t relevant.
“The question is whether Mpshe acted rationally, which he would not have done if he made a mistake on the law,” he said.
Lawson Naidoo of the Council for the Advancement of the SA Constitution said while it was inappropriate for McCarthy to discuss the timing of Zuma’s charges with third parties, Mpshe couldn’t use that as a basis to drop the prosecution.
“Did that mean a fair trial could not be held? Mpshe should have let the courts decide instead of him as to whether a fair trial was possible at the time,” he said.
He said, however, that as inappropriate as MCarthy’s intercepted conversations were, they related more to the timing of the charges and not the merits of the entire case. Zuma, he said, still had a case to answer.
– Additional reporting by Caiphus Kgosana