/ 9 November 2012

NPA’s defiance shows institutional disrespect for law

President Jacob Zuma.
President Jacob Zuma.

The action had been based on his Lady Justice cartoon.

Apparently, an unbending commitment to freedom of the press prompted the decision, a surprising assertion given the remaining 12 actions that the president has launched on the grounds of defamation and infringement of dignity against other media, which remain to be litigated. The more important debate concerned the alleged use of a racial stereotype in the cartoon versus the cartoonist's right to graphically depict what he considers to be the case – the president's and his supporters' sustained attack on the justice system.

This debate goes to the core of the idea of an accountable democracy based on dignity and freedom (in this case, of expression) and deserves comprehensive treatment. However, a more immediate question is our institutional commitment to the justice system, brought to light most recently with the impasse relating to the tapes of conversations of former Scorpions head Leonard McCarthy that led to the dropping of charges of corruption against Zuma in April 2009.

On March 20 the Supreme Court of Appeal ordered the acting national director of public prosecutions to make available to the Democratic Alliance (DA) the record of the decision by then-director of prosecutions Mokotedi Mpshe to withdraw the charges. The court defined what had to be produced – the full record save for written representations made on Zuma's behalf and any consequent memorandums or oral representations that would breach confidentiality.

No such record has been produced. It appears that the National Intelligence Agency (NIA) gained judicial authority to secretly record McCarthy's conversations. It appears to be accepted that this permission had nothing to do with the charges against Zuma. The details of the justification for the NIA's action remain unclear. What is certain is that Zuma's attorney, Michael Hulley, obtained a copy of this tape. The legal basis on which he obtained something that should not have been disclosed to an attorney acting for a private citizen has never been explained. Hulley communicated the contents of the tape to Mpshe.

Mpshe obtained his own copy of the relevant tape from the NIA to satisfy himself of its authenticity and its content. After hearing the conversation and presumably having evaluated its importance against the balance of the evidence in the file, he made his decision. It is against this decision that the DA wishes to bring a review application. The appeal court noted in its judgment that it is in the public interest that the director of prosecutions and the National Prosecuting Authority (NPA) Act in accordance with constitutional and legal prescripts.

Whatever the outcome of the DA review, our law recognises the right to review this kind of decision. It follows that a litigant like the DA must be entitled to the record on which the impugned decision was based.

So far there has been no compliance with the court order and thus no production of the record. We are told there is a problem with the production of the tapes. Inexplicably, the director of public prosecutions claims she does not possess a copy because it was passed on to Hulley.

Hulley appears to be determined to hold on to his copy. How it has come to pass that the copy Mpshe had from the intelligence agency somehow belongs to Hulley has also not been explained. What is clear in law is that the tapes cannot fall within the restricted order of the court. For starters, the director of public prosecutions had his own copy when he made his decision to withdraw charges. Second, a conversation between McCarthy and a third party such as Bulelani Ncguka cannot possibly fall within the scope of privileged communication generated by Zuma or his lawyer. Finally, the contents thereof cannot be contained within the definition of legal privilege between attorney and client.

The clear lack of any plausible legal explanation for the continued refusal to hand over the tapes raises the troubling question of whether it is indeed the content of the conversation or other material that formed part of the file of documents before Mpshe that is the real reason for the filibuster. After all, when Mpshe made his announcement he claimed that the NPA had a good case but that, for reasons relating to the motive of members of the NPA such as McCarthy, it was not possible to continue. Was his claim to a good case based on documents placed before him when he evaluated the position before taking his decision? Then they are part of the record that must be made available in terms of the order.

The order of the court was directed against the director of public prosecutions and not the president, thus Zuma cannot be in contempt of the order. The fact that the NPA has failed to comply is not only worrying, it compels a return to the key question: Is there less respect among important institutions of state for the legal system as a result of the saga relating to the case initially brought against Zuma? If so, the issue that the cartoon raised will return to haunt our young democracy.