What Mpshe should have said
“I stand here today to announce the most difficult decision I ever made. What I am about to put before you is evidence of conduct that has serious implications for the integrity and independence of the NPA.
We believe that it is vital that the NPA must expose this conduct and deal with the consequences as honestly and constructively as possible if it is to have any chance of rebuilding its credibility and integrity. Our democracy will have to find ways to learn from this bitter experience.
Over the past three weeks the NPA has been engaged in a process of dealing with allegations that the case of Jacob Zuma has been affected by manipulation and abuse of process.
In the course of considering representations by Mr Zuma’s legal team we have come across information about collusion between the former heads of the Directorate of Special Operations (DSO) and NPA to manipulate the prosecutorial process before and after the Polokwane elections.
The representations submitted by Mr Zuma’s lawyers pertained to: the substantive merits ; the fair trial defences; the practical implications of continued prosecution; and policy aspects militating against prosecution.
I need to state upfront that we could not find anything with regard to the first three grounds that militate against a continuation of the prosecution. We still believe, and a series of court findings have confirmed, that Mr Zuma has a case to answer. Nothing we have learned about apparent impropriety by our colleagues changes that. We also believe that the NPA and our courts are capable of giving both Mr Zuma and the state the fair trial that the Constitution guarantees. Although the practical challenges of prosecuting a man who may soon be the president of the country are complex, they are manageable.
That leaves policy questions.
Prosecutors have an inescapable duty to secure fair and just treatment of those who come or are brought before them.
There will always be a tension between two extreme positions in that, if a trial is discontinued, the public perception would be that the criminal justice system condones improper conduct and malpractice by law enforcement agencies—and if a trial is discontinued the criminal justice system will incur the reproach that it is failing to protect the public from serious crime.
An assessment of abuse of process involves a balancing exercise. In this case, we believe, a fair trial is possible. The overriding question, however, is whether the trial ought to be discontinued ‘on broader considerations of the integrity of the criminal justice system’.
It is possible to balance the public interest in ensuring that those charged with serious crime should be tried against a compelling public interest which expresses a distaste and outrage for abuse of process by law enforcers who are expected to behave with absolute integrity.
The recordings made available to us by the National Intelligence Agency and Mr Zuma’s legal team appear to offer evidence that Leonard McCarthy, who was the head of the DSO at all material times, colluded with Bulelani Ngcuka, the former national director, and with others who supported the political programme of the then president of the republic, Thabo Mbeki, to manipulate the timing of the charges against Mr Zuma.
I cannot overstress how personally angry and betrayed I feel about this evidence. Nor does it take great intellect to understand that my personal interests, and in a more limited sense those of the NPA itself, would be served by a decision to drop the charges a fortnight before the election in which Mr Zuma is likely to become president. Those feelings, and that expedient interest, however, cannot be the basis for our decision. The decision must be sound in law, and justice must be seen to be done.
In NDPP v Zuma Judge Louis Harms made the principle clear: ‘A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal. The same apply to prosecutions.’
It is on that basis that we intend to continue with the charges against Mr Zuma. If a court decides that the process is too tainted to continue, we will accept that decision, but it is not a decision for me to make.
If justice is to be done, however, the process cannot stop there.
The recordings we have obtained suggest serious misconduct on the part of Mr McCarthy, Mr Ngcuka, and perhaps others. We intend thoroughly to investigate that evidence, and if necessary bring charges. We will not flinch from an honest examination of our own flaws. The mere fact that Mr Zuma, a private citizen, was able to obtain these tapes also points to criminal misconduct within the intelligence services. That too must be investigated, and the culprits must be prosecuted.
These are difficult times for both the NPA and our country, but we are confident that with the Constitution and the common law as our guide, we can emerge stronger than we have ever been.”