Zuma’s charges could be reinstated
Fight over tapes likely a preliminary skirmish in a bigger case by the DA
AFTER resisting handing over “spy tapes” — recordings of phone calls that ostensibly got President Jacob Zuma off corruption charges for almost five years, it was surprising how quickly the president’s legal team fell apart at the Supreme Court of Appeal on Friday.
In less than half an hour Mr Zuma’s counsel, Kemp J Kemp SC, conceded he had no argument for keeping the tapes out of the hands of the Democratic Alliance (DA).
It was just 20 seconds into the hearing when Mr Kemp was interrupted by Justice Mahomed Navsa: “I’d like to put something to you and I’d like you to consider it very carefully,” he said. “Isn’t this case an object lesson in how not to conduct opposing litigation?”
This question was to be the undoing of the case. The result is that, barring some new twist (not to be excluded as a possibility given the history of this litigation), the DA will have the tapes within a few weeks.
When he announced the decision to drop corruption charges against Mr Zuma in 2009, acting national director of public prosecutions Mokotedi Mpshe said the tapes — recordings of conversations between former Scorpions boss Leonard McCarthy and former prosecutions head Bulelani Ngcuka about when to charge Mr Zuma with corruption — showed such political manipulation of the charges that the prosecution had to be discontinued. Portions of the tapes were read out but the rest has not been made public.
It is possible that, even if the litigation had been properly conducted, the president would have lost the appeal anyway. But the court did not even get to what could theo- retically have been the disputed legal issues — because of a basic rule of litigation: judges decide cases based on the evidence in front of them.
Mr Kemp wanted to make an argument that the tapes were part of the confidential representations made by Mr Zuma to the National Prosecuting Authority (NPA) back in 2009. The representations had been excluded from the documents the DA was entitled to access in terms of an earlier order of the Supreme Court of Appeal.
But there was no evidence upon which Mr Kemp could make the argument.
Mr Zuma did not depose to an affidavit. The NPA did, but it did not say much, only that it would abide by whatever decision the court reached.
As Justice Navsa said: “The party called upon to disclose (the NPA) puts up an affidavit in which it refers to no facts, but says we’re waiting on the other party’s response … it says it will abide (by) the decision. The party who did not file an affidavit, namely your client, says: well, Mr Kemp will come and argue”.
Without an affidavit, the court was unable to tell, for example, whether it was Mr Zuma’s case that the tapes were “encompassed” by the representations or that they were “alluded to” in the representations. It may sound like splitting hairs, but there was a difference between the two propositions.
“The reason I’m asking is because we don’t have an affidavit from your client. So one is left to speculate about this,” said Justice Viswanathan Ponnan.
When Mr Kemp was told, “take your time” to look through the answering affidavit for something he could base his argument on, he came up empty handed. In the end he had to concede that his argument on the tapes was dead and had to move on to argue about the other documents the DA was looking for.
What those tapes may reveal remains to be seen and we probably will not have to wait too long to find out. But the one thing that will be achieved by them being handed over is that the real case — over the lawfulness of the decision to drop the charges — can now go ahead.
The fight over the tapes was a preliminary skirmish in a bigger case by the DA to set aside Mr Mpshe’s decision. If it succeeds, it could mean a reinstatement of the charges.