Dumb and dumbfounded

Top advocate Wim Trengove has attacked the National Prosecuting Authority’s decision to drop charges against Jacob Zuma, saying NPA boss Mokotedi Mpshe should have brought the matter to court and let a judge make the call.

Trengove was the prosecution’s senior council in the case against Zuma.

Other top legal analysts agreed that Mpshe’s reasoning dumbfounded them. Most argued that the taped conversations between ex-Scorpions boss Leonard McCarthy and former NPA head Bulelani Ncguka related only to the timing of the Zuma charges and had nothing to do with the charges themselves.

Trengove pointed out that Mpshe had ultimately been responsible for the decision to charge Zuma. ‘Mpshe presumably took the decision to prosecute and on the timing of its implementation,” he said.

‘If he did, I fail to see how validity of the charges can be affected by the improper conduct of others of which Mpshe was unaware, and which he should, in any event, have ignored.”

McCarthy’s apparent connivance was directed only at the timing of the implementation of the decision to prosecute Zuma and not at the decision to prosecute, Trengove said.

He added that Mpshe’s move seemed to contradict last year’s ruling by Supreme Court of Appeal judge Louis Harms in the Zuma matter that a prosecution is not wrongful merely because it is brought for an improper purpose.

‘I’m unable to reconcile the two,” he said. ‘But Mpshe doesn’t even say his decision to prosecute Zuma was taken for an improper motive.  He merely says that, unknown to him, McCarthy and others were improperly trying to influence the timing of the implementation of the decision and not the decision itself.”

George Devenish, honorary research associate at University of KwaZulu-Natal, said Harms’s perspective was an accepted legal principle. ‘Motive should not influence the merit. If the course is correct, motive is not a material issue,” Devenish said.

If there was interference, that should be subjected to prosecution.

Devenish said a judge would be a far more neutral arbiter than ‘someone in the NPA who is subject to all the pressures in a system based on cadre deployment”.

Senior Cape Town advocate Paul Hoffman said the allegations of interference were weak. ‘The team and Mpshe himself did not even know about these goings-on at the time or at any time before JZ’s carefully timed production of the tapes — which he has absolutely no business to have in his possession,” he said.

‘There would also appear to be no legal or even political prejudice to Zuma arising from whatever happened as a consequence of the taped conversations.”

Pierre de Vos, professor of constitutional law at the University of the Western Cape, said Mpshe’s reasoning held no legal water.

‘We’re back in the same position [in 2002] when Ncguka decided not to prosecute Zuma, despite saying there was a prima facie case against him,” he said.

Hoffman and De Vos said it was a criminal offence for the defence to even possess the tapes.

‘Clearly JZ ought not to be in possession of the tapes, whether or not they were made with a judge’s permission,” Hoffman said.

‘Instead of adding a charge of illegal possession, the NPA runs off to get NIA [National Intelligence Agency] copies.”

He said the machinery of the state seemed to have been abused to help a powerful person facing serious charges.