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One of the rea­sons Pres­i­dent Ja­cob Zuma be­lieved crim­i­nal charges against him re­lat­ing to the arms deal should be dropped was be­cause cor­rup­tion is only a crime in a “Western par­a­digm”. And even if it was a crime, Zuma’s lawyers ap­par­ently ar­gued, it was a crime where there are “no vic­tims”.

Th­ese startling in­sights into Zuma’s 2009 writ­ten rep­re­sen­ta­tions to the Na­tional Prose­cut­ing Au­thor­ity (NPA) are con­tained in a de­tailed NPA anal­y­sis doc­u­ment, which City Press has ob­tained.

This synop­sis is at­tached to a mem­o­ran­dum dated March 3 2009 and drawn up by Ad­vo­cate Billy Downer, the se­nior state pros­e­cu­tor who was sec­onded to the now de­funct Direc­torate of Spe­cial Op­er­a­tions (DSO, also known as the Scor­pi­ons) for the Zuma in­ves­ti­ga­tion.

At the time, Zuma had al­ready been elected pres­i­dent of the ANC but was not yet pres­i­dent of the coun­try. Zuma’s lawyer, Michael Hul­ley, made rep­re­sen­ta­tions to the NPA for the charges against him to be dropped.

The doc­u­ment in­di­cates that page 22 of Zuma’s 88page writ­ten sub­mis­sion deals with one of Zuma’s ar­gu­ments, which the pros­e­cu­tors re­state as fol­lows: “Western par­a­digm brands this crim­i­nal.” “This” is prob­a­bly a ref­er­ence to the types of loans Zuma’s ex-fi­nan­cial ad­viser, Sch­abir Shaik, claimed to have in­no­cently given him. Shaik was even­tu­ally con­victed.

In their scathing re­sponse to this point, the pros­e­cu­tors write: “The law pre­scribes that it is crim­i­nal. Un­til the law is amended to pro­vide that in­sti­tu­tion­alised crony­ism is not crim­i­nal, the ‘Western par­a­digm’ will have to be ac­cepted.”

The re­sponse to the ar­gu­ment that there are no vic­tims to the crime is sim­i­larly dis­mis­sive: “There are vic­tims. The gen­eral pub­lic.”

Based on this synop­sis, Downer’s mem­o­ran­dum em­phat­i­cally rec­om­mends that the NPA re­jects Zuma’s rep­re­sen­ta­tions.

“Our con­clu­sion is that even in re­spect of those is­sues re­gard­ing the mer­its that Zuma does ad­dress, there is no ad­e­quate an­swer to the state’s al­le­ga­tions.

“If any­thing, Zuma’s rep­re­sen­ta­tions con­firm the struc­ture of the gen­eral cor­rup­tion.”

The doc­u­ment also re­veals that Hul­ley ap­par­ently ar­gued that one of the con­sid­er­a­tions that mil­i­tated against Zuma’s pros­e­cu­tion was that it would cause “gen­eral un­rest through dis­sat­is­fac­tion with the NPA”.

Downer and the other pros­e­cu­tors la­belled this “black­mail”.

“The ar­gu­ment is just as much that not prose­cut­ing will lead to mass dis­sat­is­fac­tion.”

Downer makes a sim­i­lar point about the so-called spy tapes – in­ter­cepted record­ings of tele­phone con­ver­sa­tions be­tween the ex-head of the DSO, Leonard McCarthy, and for­mer NPA head Bule­lani Ngcuka – say­ing they amounted “to lit­tle more than black­mail”.

“They should be re­duced to writ­ing un­der oath and pre­sented in the nor­mal course, if Zuma wishes to con­tinue to rely on them.”

This week, City Press was granted ac­cess by the court to var­i­ous doc­u­ments that have been handed to the DA in its court ap­pli­ca­tion to have act­ing NPA head Mokotedi Mpshe’s decision to drop cor­rup­tion charges against Zuma over­turned.

In­cluded among them is the mem­o­ran­dum re­ferred to by Ngcuka in the Sun­day Times last week, which he used to ac­cuse Mpshe of mis­lead­ing the pub­lic about the rea­sons the charges were dropped.

The Scor­pi­ons mem­o­ran­dum Ngcuka re­ferred to, dated De­cem­ber 6 2007, makes it clear that Mpshe had al­ready made a “fi­nal decision” that Zuma would not be charged un­til after the ANC’s 2007 elec­tive con­fer­ence in Polok­wane. This ap­pears to con­tra­dict what Mpshe told South Africans when he an­nounced that charges had been dropped.

In his state­ment an­nounc­ing the decision, Mpshe ar­gued the tim­ing of charges against Zuma was ma­nip­u­lated by McCarthy for an il­le­git­i­mate pur­pose, namely to in­flu­ence the Polok­wane con­fer­ence.

Mpshe used the spy tapes, in which they dis­cussed the tim­ing, as a jus­ti­fi­ca­tion for this.

But Mpshe’s “fi­nal decision” ap­pears to have been made at least a week be­fore one of the more per­ti­nent dis­cus­sions be­tween McCarthy and Ngcuka re­gard­ing the sup­posed tim­ing of the mat­ter.

In the memo, Downer ex­presses the bit­ter un­hap­pi­ness of the Scor­pi­ons team fol­low­ing Mpshe’s decision, re­veal­ing that the team had even con­tem­plated re­sign­ing.

“We have re­peat­edly mo­ti­vated in the strong­est pos­si­ble terms why it is par­tic­u­larly im­por­tant in the in­stant case that the pros­e­cu­to­rial de­ci­sions must be made purely for pros­e­cu­to­rial rea­sons,” he writes.

“The team feels so strongly about th­ese prin­ci­ples that we have given se­ri­ous con­sid­er­a­tion to ter­mi­nat­ing our in­volve­ment in this in­ves­ti­ga­tion.”

In this memo, Downer notes that Mpshe had al­ready ap­proved an ap­pli­ca­tion for Zuma to be charged with rack­e­teer­ing.

This ap­pli­ca­tion, also among the doc­u­ments ob­tained by City Press, con­tained a pre­scient ap­praisal by the prose­cut­ing team of what was to come.

The NPA ad­vo­cates pre­dict it is un­likely that Zuma would fight the case against him on the mer­its, which had proven “dis­as­trous” for his for­mer fi­nan­cial ad­viser Sch­abir Shaik.

“It is an­tic­i­pated that they will con­tinue to use ev­ery le­gal de­vice and strat­a­gem to pre­vent the mat­ter com­ing to trial.

“Th­ese will in­clude an ap­pli­ca­tion for a per­ma­nent stay of pros­e­cu­tion [and con­se­quent ap­peals], at­tacks on the bona fides and in­tegrity of the pros­e­cu­tion team, the DSO and the NPA, [and] the use of the me­dia to ramp up popular and po­lit­i­cal op­po­si­tion to the pros­e­cu­tion.”

Law­son Naidoo, the ex­ec­u­tive sec­re­tary for the Coun­cil for the Ad­vance­ment of the South African Con­sti­tu­tion, said the state­ment was “quite shock­ing”.

He pointed out that South Africa was a sig­na­tory to the UN Con­ven­tion against Cor­rup­tion, the African Union (AU) Con­ven­tion on Pre­vent­ing and Com­bat­ing Cor­rup­tion, as well as the Pro­to­col Against Cor­rup­tion of the South­ern African De­vel­op­ment Com­mu­nity (SADC).

“So are you say­ing that the AU and SADC are now fol­low­ing some­thing that is Western?”

On Fri­day, the ANC said it was “un­fazed” and there was noth­ing new about the story. The party’s spokesper­son, Zizi Kodwa, said: “Peo­ple ped­dle lies in the pub­lic to drive vin­dic­tive agen­das against Pres­i­dent Ja­cob Zuma. Noth­ing of cred­i­ble note has been pre­sented so far.”

Zuma’s spokesper­son, Mac Ma­haraj, did not re­spond to ques­tions on the pres­i­dent’s views on cor­rup­tion by the time of go­ing to press.

AT ODDS Billy Downer (top) and Michael Hul­ley (above)


CLUTCH­ING AT STRAWS Pres­i­dent Ja­cob Zuma has so far avoided fac­ing cor­rup­tion charges

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