Spy tapes won’t hurt Zuma, say of­fi­cials

Record­ings are more dam­ag­ing to NPA than they are to Num­ber One

CityPress - - News - CARIEN DU PLESSIS carien.du­p­lessis@city­press.co.za

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

PHOTO: KHAYA NG­WENYA

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