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DA, Zuma agreement leaves no room for political manoeuvring

Glynnis Underhill

A court agreement signed over spy tape records by legal teams for the president and DA leaves no room for political interference.

President Jacob Zuma. (Lisa Skinner, M&G)

The historic court agreement signed last Friday by legal teams for Jacob Zuma and the Democratic Alliance leaves no room for political manoeuvring to keep from scrutiny the so-called spy tapes records that led to the dropping of corruption charges against the man who became president of South Africa. 

The court papers lodged at the Supreme Court of Appeal reveal that the binding agreement was first shown to a Director of Public Prosecutions to see if the prosecuting authority had any objections. 

Insiders at the National Prosecuting Authority (NPA) say it would probably have been the National Director of Public Prosecutions (NDPP) Mxolisi Nxasana – who Zuma has been trying to suspend from office – who got a look over the agreement. But the Mail & Guardian was unable to obtain clarity on exactly who viewed the document at the NPA. 

“Kindly also take notice that the agreement has been presented to the Director of Public Prosecutions, who advised they had no objection to this replacement,” the court agreement states. 

Last year Judge Rami Mathopo of the Supreme Court of Appeal ordered the NPA to lodge a record of the documents on which the prosecuting authority based their decision with the registrar of the high court. However, Nxasnana’s predecessor in the hot seat, Nomgcobo Jiba, who was in an acting role in the job until Zuma was pushed by court order to appoint a permanent NDPP, refused to do so on the basis that it contained confidential representations by Zuma. 

Return documents seized from Zuma
The matter then proceeded through the courts until Zuma’s counsel, Kemp J Kemp SC, conceded on August 15 this year that he had no argument for keeping the tapes out of the hands of the official opposition, the DA. The result was a signed agreement between the two parties, which was handed to the registrar of the Supreme Court of Appeal in Bloemfontein. 

It revealed that retired KwaZulu Natal high court judge, Justice Noel Hurt, was selected as arbitrator to review the  evidence used to drop the charges against Zuma. Hurt is already familiar with the case.

In 2006, the judge ordered the now disbanded Scorpions to return documents seized from Zuma home and the office of his lawyer Michael Hulley. The new binding court agreement lodged with the Supreme Court of Appeal has a time-frame for the dramatic hand-over of the records, after a protracted court battles over the issue. 

“Within five days of the date of this order, the First Respondent (Zuma) shall cause to be delivered to the Honourable Mr Justice N.V Hurt (“Justice Hurt”) copies of the internal documentation,” the agreement states.

On the copy of each document forming part of the internal documentation, Judge Hurt has been instructed to mark or record that part of the document which he considers to reveal the contents of Zuma’s written or oral representations. Only the submissions Zuma’s team made in confidence to the NPA, in an attempt to show why the charges should be dropped, will remain secret. 

This action will be taken in accordance with any directives which Justice Hurt may prescribe in order to fulfil his mandate, the agreement states.

‘Prosecution of Mr Zuma’
“The ruling of Justice Hurt shall be final and binding on the parties and not reviewable in a court of law; and should Justice Hurt, for whatever reason, be unable to commence or complete the exercise referred to in this paragraph, the applicant (DA) and the Third Respondent (Zuma) shall attempt to reach agreement on another independent and impartial person to replace him and, if no agreement can be reached within five days of Justice Hurt becoming unavailable, then the chairperson of the General Council of the Bar of South Africa shall be requested to appoint such person.”

The agreement was signed on a date that will go down in South Africa’s history books, August 22. It is the moment many in the country has been waiting for since April 2009, when the corruption charges against Jacob Zuma were mysteriously dropped on evidence withheld from public scrutiny. 

On April 6, 2009, the M&G recorded how the NPA had stated it was “neither possible nor desirable for the NPA to continue with the prosecution of Mr Zuma.” 

Addressing a press conference  that same day, acting NPA head Mokotedi Mpshe said charges against Zuma, who was the African National Congress (ANC)’s presidential candidate, were being dropped, two weeks before the national elections. 

Mpshe quoted from telephone recordings between former NPA head Bulelani Ngcuka and former head of the Directorate of Special Operations (DSO), Leonard McCarthy, discussing the timing of re-charging Zuma. 

These recorded conversations happened shortly before the ANC’s Polokwane conference in December 2007, when Zuma was elected the new leader of the African National Congress. Mpshe described McCarthy’s actions as an “abuse of process”. 

“It’s not so much the prosecution itself but the legal process that is tainted,” the M&G quoted Mpshe as saying at the press conference.

Political interference
Mpshe claimed that the tapes pointed to political interference in the case, but this was recently challenged by former crime intelligence boss Mulangi Mphego, who this month told the Sunday Independent he failed to understand how Mpshe could have reached that conclusion. “I listened to all the tapes ... I was shocked because I could not reconcile what he was saying with what I knew,” he said in an interview, raising further questions. This dramatic turnaround over the imminent release of the evidence Mpshe relied on to drop the corruption charges against Zuma, came after Zuma’s legal team dramatically conceded in the Supreme Court of Appeal last week it had no case for withholding the tapes or records.

The legal counsels were then given until 4pm last Friday to have an agreement delivered to the Supreme Court of Appeal.

DA leader Helen Zille released a statement, claiming that the country was one step closer to justice.

“Following six court applications spanning five years since 2009, the most important review case in 20 years of democracy is finally reaching the end of the beginning,” said Zille. “At stake is the Constitutional principle of equality before the law, and whether this was subverted by the NPA in dropping the charges against President Zuma. It is in the interests of all South Africans that we have a free and fair criminal justice system based on the Constitutional principle of equality before the law.” 

Once the records have been released, the DA’s legal team will then study the records on receipt to determine whether a high court review of the NPA’s decision is appropriate.


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