Secrets and Stalingrad in appeal court

There was a light-hearted but telling moment on Wednesday during the Democratic Alliance’s attempts to convince the Supreme Court of Appeal in Bloemfontein that it had legal standing to ask for a review of former acting national director of public prosecutions Mokotedi Mpshe’s 2009 decision to withdraw corruption charges against President Jacob Zuma and also for the record that informed the decision.

Zuma’s favourite courtroom gladiator, Kemp J Kemp SC, who had represented the president against the National Prosecuting Authority in a series of attritional legal battles from 2005 until 2009, quipped to a full sitting of the Bench that “it was very hard to pass up on the opportunity to fight on the side of the NPA”, which is the first respondent in the matter.

Adversaries in the law’s trenches for almost five years, Kemp and the NPA had, evidently, come together to protect one man: Zuma.

The national director of public prosecution’s counsel, Paul Kennedy SC, argued that in terms of the NPA’s confidentiality agreement with Zuma — when he had made oral and written submissions that “verified” secretly taped recordings between then Scorpions boss Leonard McCarthy and former national director of public prosecutions Bulelani Ngcuka — the NPA required Zuma’s waiver to furnish the DA with the requested record. This was something that Zuma had refused, according to the DA’s heads of argument.

The tapes, the origins of which are still unknown, allegedly contained conversations that took place in 2007 between Ngcuka and McCarthy about when it would be strategic to institute corruption charges against Zuma.

The charges were laid hours after Zuma replaced former president Thabo Mbeki as ANC president at the party’s 2007 elective conference in Polokwane. They further fuelled allegations of a political conspiracy against Zuma and Mpshe considered their timing to have “tainted” the prosecution process.

Kennedy maintained to the Bench, which included appeal court Judge President Lex Mpati, judges Zukisa Tshiqi, Mahomed Navsa, Lebotsang Bosielo and acting judge Clive Plasket, that the contents of the record of decision were “highly controversial”. He went further, suggesting that there were “certain categories” of decision about whether to prosecute or not that it was not in the public interest to review.

The argument that followed led Plasket to ask if there were prosecutors who were “beyond the law”. He also inquired about the “ouster clause” that would limit the judicial review of the decisions of a public body such as the NPA.

Navsa noted: “The national director of public prosecutions is making these suggestions — and I am really concerned about this — that the national director of public prosecutions, as an office, is beyond public scrutiny.”

The matter, with judgment on the locus standi (legal standing) of the DA’s main application reserved, is still in its preliminary stages. If it were returned to the high court for hearing, Zuma’s get-out-of-jail-free card might possibly be at stake.

At greater stake for the country, however, is the transparency of public institutions such as the NPA.

The national director of public prosecutions’s arguments on the appeal court matter suggest it is teetering towards the sort of secretive, opaque style of governance that Zuma, a former head of Mbokodo, the ANC’s internal intelligence wing, appears to favour personally and in government in general.

The trend in Zuma’s administration is towards opaqueness melded with authoritarianism and a need to control the free flow of information, demonstrated amply by the Protection of State Information Bill, currently undergoing public hearings initiated by the National Council of Provinces.

In argument, the national director of public prosecutions also appeared to be taking the attritional, “Stalingrad” approach to law so favoured by the president during his numerous court appearances since being fired as deputy president by Mbeki in 2005. The justices were clearly irritated by the “piecemeal” nature of the litigation.

Plasket also pointed out that he had “never heard of a case” in which the refusal to furnish a record of decision had been based on the issue of locus standi. Kennedy responded that although that might be the case, it “didn’t preclude” the national director of public prosecutions from raising it.

Habits appeared difficult to shake off: Kemp asked the court to “qualify” the order sought by the DA to exclude Zuma’s written and oral submissions to the NPA and asked that the authority “show us the documents that it intends furnishing in advance”.

He and Kennedy also raised concerns that the DA was not acting in the public interest, but rather “in bad faith” to gain political mileage from the matter and to “open the floodgates” to more reviews of prosecutorial decisions.

Sean Rosenberg SC, the DA’s counsel, sought to dispel this view, arguing that the party was “sincere” in its application, the DA’s standing was in the public interest and also in the interests of its members, and DA members were “the main tax-paying members of the public”.

Old habits do die hard.

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Niren Tolsi
Niren Tolsi is a freelance journalist whose interests include social justice, citizen mobilisation and state violence, protest, the Constitution and Constitutional Court, football and Test cricket.

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