NPA in contempt, says Helen Zille
The spy tapes that apparently formed the basis of the decision to withdraw corruption charges against Jacob Zuma before he became president are proving as elusive as ever.
Democratic Alliance leader Helen Zille claimed this week the documents received from the National Prosecuting Authority by her party's lawyers bore no relation to the evidence that might have led to the NPA withdrawing the charges against Zuma. "They also, crucially, excluded the transcripts of the infamous spy tapes, which the NPA had claimed were the basis of the decision to discontinue the prosecution," Zille said.
A Supreme Court of Appeal ordered that the NPA supply DA lawyers with the relevant documents of the records of decision by April 10. The judgment was handed down after the opposition party went to court to establish whether the decision to withdraw charges against Zuma was rational and legally motivated.
Zille said the NPA had "blatantly defied" the order and was in contempt of court. "Is the failure to produce the record an indication that there is in fact no record to produce?" she asked in a statement released to the media.
It is indeed a chapter of South African history that is veiled in secrecy. In April 2009, acting NPA head Moketedi Mpshe decided to drop corruption and fraud charges against Zuma, which saved his political career and paved the way for him to become South Africa's president that year.
The tapes were apparently crucial to this decision and contained intercepted telephone conversations between former Scorpions boss Leonard McCarthy and former NPA boss Bulelani Ngcuka. Mpshe said at the time that the secret connivance between McCarthy and Ngcuka in relation to the Zuma case amounted to an "intolerable abuse".
Portions of the transcripts of the intercepted phone calls were declassified and released in April 2009. The DA court case threw open the possibility that fuller transcripts of the tape recordings might now be made public.
The former head of the Special Investigating Unit, Willie Hofmeyr, who is still head of the Asset Forfeiture Unit, shed some light on the tapes after his former deputy, Faiek Davids, went to the Commission of Conciliation, Mediation and Arbitration Court in Johannesburg to sue him for unfair dismissal.
While Hofmeyr fought to prevent classified information contained in the Zuma tapes from being made public, the press were allowed in to hear the case. Davids was dismissed by Hofmeyr on the basis of statements he allegedly made to McCarthy in the intercepted telephone calls Hofmeyr had heard.
The Times reported it was revealed in court that Hofmeyr had been summoned to hear the tapes by Zuma's lawyer, Michael Hulley, in February 2009. Hulley never disclosed to him how he had got hold of the tapes and did not provide him with copies. The National Intelligence Agency eventually gave him copies of the tapes, but not the one which held the conversation between McCarthy and Davids.
Dodged, ducked and dived
During the proceedings, Hofmeyr revealed that the NPA had not been party to a court application for permission for the conversations to be bugged.
The DA's case has now forced the NPA's hand in revealing more about how the decision was made to withdraw the corruption charges against Zuma. At first, the NPA asked for more time to get the record of decision together. Since then, said Zille, the state attorney's office representing the NPA had "dodged, ducked and dived" and had still not produced the reduced record of decision, as described in the judgment. This record had included all documents, tape recordings, memorandums and other materials.
"The Supreme Court of Appeal only excluded the confidential representations that President Zuma made to the NPA at the time the charges were dropped and any confidential responses thereto," said Zille.
In the belief that the NPA had been determined to delay executing the court order, the DA this week instructed its lawyers to prepare and lodge an application with the North Gauteng High Court, forcing it to comply with the order and produce the record of decision.
NPA spokesperson Mthunzi Mhaga said it was "committed" to providing the DA with the reduced record, as ordered by the Supreme Court of Appeal, and would provide it soon.
"The process is taking longer than we anticipated, hence the delay in supplying them with all the relevant information," Mhaga told the Mail & Guardian.
"The process includes transcribing the records, verification and submitting them to the president's legal team, due to the representations being subject to the confidentiality rule."
Zille said the DA had informed the NPA in a letter on June 29 that it would take all necessary action to ensure compliance with the Supreme Court of Appeal order and had given it another 18 days' grace. But the DA had not yet received a reply from the NPA, she said.
Mhaga said the NPA had not received this letter from the DA due to "a communication breakdown".
"We will deal with whatever court action they institute, as and when we receive notice to that effect," he said.
Asked where the tapes were held, Mhaga did not elaborate.
"The records are available and some have been provided to the DA, but it insisted on not having piecemeal information," Mhaga said.