In April 2009, when Mokotedi Mpshe announced "the most difficult decision I ever made in my life" – to drop corruption charges against Jacob Zuma – he faulted former National Prosecuting Authority (NPA) and Scorpions bosses for "manipulating the timing" of the "prosecutorial process before and after Polokwane".
But Mpshe, the acting head of the NPA both then and when Zuma was charged in late 2007, did not take the nation into his confidence and say that it was he who made the key timing decision to delay charging Zuma until after the ANC's leadership conference.
Mpshe had two things in common with the alleged conspirators: he delayed the prosecution – exactly what they allegedly wanted, to spare then-president Thabo Mbeki a backlash from Polokwane delegates – and his decision was apparently for reasons unrelated to prosecutorial due process.
In a memorandum, lead prosecutor Billy Downer recorded: "[Mpshe] mentions that he does not wish to be seen to be interfering in the Polokwane process."
Although, according to the memo, Mpshe insisted that the decision to delay was "his alone and no one else's", it followed a consultation with then justice minister Brigitte Mabandla and took into account a speech by Mbeki. The delay drew a heated response from Downer and his team, who in effect accused Mpshe of "dabbling in politics".
Mpshe, now a Land Claims Court judge, this week declined to comment on "hearsay", but said: "Whatever I may have done at that time I did in my capacity as a leader … after having duly considered all the necessary factors as things were happening in the country then."
Zuma's prosecution landed like a hot potato in the NPA's lap at a most inopportune time: November 8 2007, five weeks before the Polokwane conference.
That day, the Supreme Court of Appeal ruled in the NPA's favour on disputed search warrants and evidence from Mauritius, removing remaining obstacles to the reinstitution of charges brought against Zuma in 2005 but struck off the roll.
Four days later, Downer and then Scorpions boss Leonard McCarthy discussed the timing. A Downer team memo records Downer as recommending an immediate decision, while McCarthy – the alleged chief conspirator, alongside inaugural NPA head Bulelani Ngcuka – raised another approach: "Do not rush. Wait until after Polokwane."
Nevertheless, the memo records that they agreed on Downer's approach because there were already concerns about the delays in getting Zuma to court – an important consideration in the constitutional requirement for a fair trial.
The next day, November 13 2007, Downer's team applied to Mpshe to approve the inclusion of racketeering charges. Following external counsel's advice, this – and by implication the entire prosecution – was approved on Thursday November 29 at a meeting at NPA headquarters involving Mpshe and his top managers.
Downer's team took this as a green light. The following Monday, December 3, Downer sent Mpshe a draft indictment and draft report for Mpshe to inform Mabandla, the minister, of the decision to prosecute.
But a day later, it appears, Mpshe became nervous. A Downer team memo records him as "waiting for the minister" and raising the "possibility of delaying [the] announcement until after Polokwane". The same memo records Downer as countering that "the prosecution must proceed when the prosecutors are ready irrespective of political considerations".
Two days later, on December 6, Mpshe conveyed his decision to postpone after all. Downer recorded that Mpshe called him to say that he would only decide about the decision "next year".
"[Mpshe] mentions that he does not wish to be seen to be interfering in the Polokwane process. He has taken account of [then-president] Mbeki's speech, where the president called for calm and stability prior to Polokwane," Downer noted. "[Mpshe] consulted with the minister the previous evening. The decision not to announce the decision to prosecute was his alone."
Dabbling in politics
That same day, Downer's team sent their heated response to Mpshe: "In every single instance where the incumbent [the national director of public prosecutions] has acted contrary to our advice, the results have been damaging to the case and to the NPA.
"It seems, however, that the lesson has not yet been learnt that it is inadvisable for the prosecution to dabble in matters of politics, even with the best possible intentions. We fear that this instance will be no different.
"Even if it is accepted that considerations other than purely prosecutorial ones should be considered, which we dispute, the team is nevertheless of the view that to deliberately withhold from the public the fact that a decision has been taken to prosecute … until after the election of the ANC leadership, for reasons which are unconnected with the prosecutorial process, is in conflict with the constitutional duties of the team and the NPA."
Ironically, these words foreshadowed those used by Mpshe about Ngcuka and McCarthy's actions when he eventually dropped the charges against Zuma. There, he said: "In the present matter, the conduct consists in the timing of the charging of the accused. In general, there would be nothing wrong in timing the charging of an accused person, provided that there is a legitimate prosecutorial purpose for it …
"For example, the timing may be related to the availability of witnesses, or the introduction or leading of specific evidence to fit in with the chain of evidence.
"It follows therefore that any timing of the charging of an accused person which is not aimed at serving a legitimate purpose is improper, irregular and an abuse of process."
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