The controversial “Zuma tapes” — intercepted phone calls that played a role in the withdrawal of corruption charges against President Jacob Zuma — have returned to haunt the Special Investigating Unit’s (SIU’s) head, Willie Hofmeyr, and his former deputy, Faiek Davids.
The two are locked in a legal battle prompted by Hofmeyr’s suspension and dismissal of Davids, mainly based on statements the latter allegedly made in the disputed intercepts.
When it was decided to withdraw the charges against Zuma, a small proportion of the intercepted material was released.
The transcripts appeared to show that former Scorpions head Leonard McCarthy had tainted the Zuma investigation by manipulating the timing of the charges to assist Thabo Mbeki’s bid to maintain control of the ANC.
That conclusion was challenged by McCarthy and former National Director of Public Prosecutions Bulelani Ngcuka, who was also implicated.
Davids has taken Hofmeyr to the Commission for Conciliation, Mediation and Arbitration (CCMA), for alleged unfair dismissal after being axed from the unit.
According to an affidavit submitted to the CCMA by SIU lawyer Robert Walser, the charges against Davids emanated from a telephone exchange between the latter and McCarthy. This included a voicemail message left by McCarthy, “presumably” intercepted by the National Intelligence Agency and the police.
Davids argues the conversations were illegally taped and denies any misconduct.
In his CCMA submission he alleges Hofmeyr refused to give him copies of the tapes because this “would not be politically advisable”.
It is understood that the conversation cited by Hofmeyr allegedly featured McCarthy and Davids discussing an earlier confrontation between Hofmeyr and Ngcuka, who, at that stage, had left the NPA over Ngcuka’s alleged ongoing interference in the Zuma case.
The affidavit by the SIU’s legal representative states: “Hofmeyr informed the applicant [Davids] that the conversation between him [Davids] and McCarthy had been played to him and — Davids had expressed the view that the SIU could not remain impartial in the bid by former president Thabo Mbeki to remain president of the ANC in the face of President Jacob Zuma’s challenge to become president of the ANC.”
But Davids argues he was never presented with evidence to back this claim.
“Hofmeyr failed — to afford the employee an opportunity to appraise (sic) himself as to whether he — had actually said anything in this alleged conversation that could give rise to incompatibility [with Hofmeyr],” he states.
“Hofmeyr informed [Davids] that the alleged conversation between McCarthy and [Davids] was part of unlawful recordings made by SAPS crime intelligence to monitor any developments in the case against Jackie Selebi.”
Davids complains that Hofmeyr “acted as a witness, complainant, prosecutor and adjudicator” in relation to his suspension and dismissal.
The SIU has applied to have the dispute referred to the Labour Court due to its “complexity and sensitivity”, while Davids has asked the CCMA to appoint a senior commissioner to adjudicate the case.
Davids’s attorney, Sonia de Vries, said her client would oppose the SIU’s application to move the matter to the Labour Court. The case is due for arbitration on March 28.
Davids was placed on special leave on June 19 2009 to pave the way for an investigation into the allegations against him.
He received draft charges of misconduct on October 16 2009, but refused to respond to them, saying he would deny them as baseless.
He allegedly made a demand for reinstatement, which Hofmeyr rejected.
On October 21 last year Hofmeyr wrote to him calling for written and oral submissions challenging his dismissal on grounds of incompatibility and the irretrievable breakdown of trust between the two men.
Davids was dismissed on November 24 last year.
De Vries argues that Hofmeyr refused to provide evidence in the form of tapes and transcripts showing that Davids acted in a way that made him incompatible with his superior.
Hofmeyr is said to have denied having any involvement in intercepting the calls, saying that he listened to the recordings at the instance of former NPA head Mokotedi Mpshe.
The SIU’s Walser argues that it was in the public interest for Hofmeyr to listen to the tapes and apprise himself of their contents, regardless of how they were intercepted and recorded.
After listening to the recording Hofmeyr had lost confidence in Davids’s ability to make independent and impartial operational decisions and believed that senior management could no longer work with him.
“I am [of the] view that you are no longer a fit and proper person to remain in your position as deputy head of the SIU or as a member of the SIU,” he said.
Davids is also accused of breaching the conditions of his special leave by communicating with other SIU employees, including those the unit wishes to use as possible witnesses in proceedings against him and of failing to report on all his interactions with the unit’s political authority, clients or other stakeholders before being placed on special leave.
De Vries said this week that he did not believe the charges against Davids held water.
“There may or may not be an agenda behind them.
“The challenge he faces is in not being presented with evidence that led to his dismissal. Without it, it is very difficult to respond to the allegations.”
SIU spokesperson Marika Muller confirmed that the unit had applied to have the dispute referred to the Labour Court, but said: “It would be inappropriate to comment on any issues that may be in dispute in this matter as the unit does not want to undermine either the decision of the CCMA or possibly the Labour Court, as the sub judice rule may apply.”
The M&G Centre for Investigative Journalism, supported by M&G Media and the Open Society Foundation for South Africa, produced this story. All views are the centre’s.www.amabhungane.co.za.