/ 27 March 2009

Zuma tapes split NPA

The National Prosecuting Authority is reeling over ”devastating” evidence of collusion between its former officials and former president Thabo Mbeki in the prosecution of Jacob Zuma — but NPA leaders are divided about whether the charges against the ANC president are affected and should be dropped.

Zuma’s lawyers handed the evidence — recordings of tapped phone conversations involving former Scorpions boss Leonard McCarthy and former NPA head Bulelani Ngcuka, among others — to the NPA earlier this year as part of their representations as to why Zuma’s corruption case should be dropped.

There was furious lobbying and damage control this week by both the ANC and the Congress of the People (Cope) as news leaked out that Zuma’s dossier to the NPA included the recordings.

The recordings are a double-edged sword. They present the NPA with its biggest scandal yet, allegedly showing that this independent institution was abused politically. But the fact that the recordings were made and came into Zuma’s possession also implies abuse of the state’s intelligence apparatus.

Ngcuka and prominent businessmen who feature in the recordings are now associated with Cope.

Two daily newspapers reported last week that the NPA was about to drop the fraud and corruption charges against Zuma following his team’s representations. The NPA denied that a decision had been taken, but confirmed it had ‘recently been supplied with additional information by Zuma’s lawyers which has necessitated further investigation, verification and careful consideration”.

The M&G revealed last week that the information put before acting NPA head Mokotedi Mpshe included ‘evidence” of wrongdoing by Mbeki, relating both to his role in the arms deal and to his alleged interference with the Scorpions, a division of the NPA.

It appears some of those featured in the recordings became aware of it during the NPA’s ‘verification” of the information Zuma’s lawyers presented. Two sources who have been briefed on the contents of the recordings said this week that reports that Mbeki himself was tapped were probably wrong — rather, it is the references others make to him that are damaging.

The M&G‘s sources, one sympathetic to Zuma, the other not, said:

  • The recordings date from around the ANC’s Polokwane conference in December 2007, when Zuma ousted Mbeki as ANC president;
  • Most are of McCarthy conversing with Ngcuka. Businessmen Saki Macozoma and Mzi Khumalo, both close to Ngcuka, also feature, as do other NPA officials;
  • The conversations are ‘deeply compromising” and ‘devastating”; and
  • Deputy NPA boss Willie Hofmeyr, distraught about the implications for the NPA and the fact that his former colleagues were not open with him, is leading the campaign to have the Zuma charges dropped.

A legal source said this week that the debate raging in the NPA pitted Hofmeyr against Billy Downer, the chief prosecutor in the Zuma matter, and to some extent Mpshe’s other deputies, who believe that while decisions taken during Ngcuka’s occupancy were tainted, the subsequent decisions to charge Zuma were not.

Ngcuka declined in 2003 to prosecute Zuma despite saying there was a ‘prima facie case” against him. The Zuma camp interpreted this as intended to convict him in the court of public opinion.
Ngcuka’s successor, Vusi Pikoli, decided to charge Zuma in 2005 after Schabir Shaik’s conviction. Mpshe took the decision to recharge Zuma last year after the matter had been struck off the roll. Nothing in the recordings, said the source, tainted Pikoli or Mpshe’s own decisions.

The source said Hofmeyr was extremely influential in the NPA and described Mpshe, who must make the final decision about the charges, as ‘weak”.

The source added that the Zuma lawyers’ representations were ‘unconvincing” and did not warrant ‘a second look” at the charges.

However, a Zuma strategist said the recordings trumped part of the Supreme Court of Appeal judgment this year which reinstated charges against Zuma after they were thrown out by High Court Judge Chris ­Nicholson.

The SCA ruled that contact between politicians and the NPA was not wrong unless there was an ulterior motive and that a prosecution is not wrongful merely because it is brought for an improper purpose. Now, said the strategist, an ulterior motive had been revealed.

A second legal source said the Zuma strategy was clearly to convince Mpshe the tapes were so damning that the NPA should drop the charges now and save face. If it did not, the recordings would be introduced to the high court in August as part of Zuma’s application for a permanent stay of prosecution.

If the battle shifts to that venue, Zuma’s legal team will have to show the recordings were properly obtained and that they undermine any chance of a fair trial. The NPA would counter by saying the motive does not affect the merits of the case.

The recordings are understood to include material showing McCarthy’s overly political understanding of his role.

He allegedly makes statements, including ‘Mbeki is my president, he will always be my president”. After Mbeki’s Polokwane defeat, he allegedly said: ‘We must wipe the blood off our faces … it is time for a come-back strategy.”

Also in the recordings:

  • McCarthy allegedly refers to Mbeki’s instructions that neither Zuma nor police commissioner Jackie Selebi should be charged before Polokwane, as the perception of victimhood would work to their advantage;
  • There was reference to Zuma allegedly reneging on a 2003 deal to retire from politics in exchange for the dropping of the prosecution against him. A Zuma insider told the M&G that there had been such an approach to Zuma, but that it had gone nowhere because he was affronted; and
  • There was reference to Mbeki ordering a third draft of the Scorpions’ ‘Browse Mole” report, which investigated allegedly illicit foreign funding for Zuma, even though Mbeki’s office publicly condemned the report.

McCarthy’s secretary at the World Bank in Washington, DC, where he is vice-president for integrity, told the M&G on Thursday that he was out of the office but had instructed that if reporters called, he was ‘not interested” in commenting.

Mbeki’s spokesperson, Mukoni Ratshitanga, was quoted by 702 Talk Radio as denying that Mbeki had discussed the case with McCarthy. He told the M&G there was no statement from Mbeki.

The recordings appear to be the fruit of intelligence gathering by both the National Intelligence Agency and the police crime intelligence division. NIA spokesperson Lorna Daniels said the agency would neither confirm nor deny its involvement.

The police crime intelligence leg of the surveillance was apparently conducted after a legal warrant had been secured to monitor McCarthy.

The M&G previously reported that police intercepted McCarthy’s conversations in October 2007.

Police spokesperson Sally de Beer refused comment.