/ 30 August 2013

Spy tapes: Explosive and under wraps

Mokotedi Mpshe [Photo: Lisa Skinner]
Mokotedi Mpshe's decision to drop corruption charges went against advice, memos show. (Lisa Skinner, M&G)

Today, we publish key extracts of documents that President Jacob Zuma does not want you to see.

The president's lawyers have fought an unremitting battle to prevent disclosure of his "spy tapes" representations to the National Prosecuting Authority (NPA), and its internal reaction to these.

Zuma's representations culminated in the NPA dropping corruption charges against him shortly before the April 2009 elections that swept him into power. It was one of the most fraught prosecutorial ­decisions of the post-apartheid era.

The documents we publish excerpts of – internal memoranda responding to Zuma's spy tape disclosures – show how precarious the decision not to prosecute was and how precarious it remains.

Their explosive content explains at least in part why Zuma's lawyers are so desperate to block access to the recordings and the NPA memoranda. It also raises questions about why the leaking of recordings and the legal improprieties they purported to disclose were never properly investigated.

Mpshe's decision
At a dramatic press conference on April 6 2009, then acting national director of public prosecutions Mokotedi Mpshe presented transcripts of some of the intercepted communications.

They detailed conversations in 2007 between then Scorpions boss Leonard McCarthy and other players including ex-national director of public prosecutions Bulelani Ngcuka, then justice minister Brigitte Mabandla and then president Thabo Mbeki.

The context was the bitter battle for the ANC presidency at Polokwane in December that year. The transcripts appeared to betray McCarthy's loyalty to the Mbeki camp and his willingness to "manipulate" the decision on when to charge Zuma based on how this might affect Mbeki's chances in the leadership contest.

The recordings had been leaked to Zuma's lawyer, Michael Hulley, who, in turn, disclosed aspects of their content to the NPA.

Mpshe cited the recordings as evidence of McCarthy's alleged subversion of the legal process that made it "neither possible nor desirable" for the NPA to continue with the prosecution.

A contested decision
But the memos published today show:

  • Mpshe had himself cited ­concern about the impact on Polokwane of delaying charging Zuma;
  • In abandoning the prosecution, Mpshe ignored the external legal advice of two senior advocates;
  • The team of prosecutors and investigators assigned to the case fought his decision;
  • The team complained that it had not been consulted about the legal arguments Mpshe used to justify the decision and had grave doubts they could stand up to judicial scrutiny; and
  • The team believed the matter should be decided in a court of law, not "behind closed doors" by the NPA.

Mpshe's decision not to allow a court to decide whether McCarthy's bias fatally undermined Zuma's prosecution was controversial externally as well as internally.

Almost immediately, the Democratic Alliance launched a bid for a high court review of that decision. Four years later, that review is still nowhere near being heard.

The NPA and Zuma's lawyers challenged the DA's legal right to review Mpshe's decision or to have access to Zuma's confidential representations. In the North Gauteng High Court in Pretoria, they were successful in blocking the DA's bid, but that ruling was overturned in a scathing judgment by the Supreme Court of Appeal (SCA) in March 2012.

The SCA ordered the NPA to hand over records relating to the decision, but excluding Zuma's written representations, as they were deemed confidential. The written representations did not deal with the spy tapes. The ruling also excluded other documents or memoranda, to the extent that they breached the confidentiality of the written representations.

However, both the NPA and Zuma's lawyers interpreted the order as covering everything to do with the spy tapes or the NPA's assessment of their import; this despite the fact that Mpshe had obtained his own set of recordings from the National Intelligence Agency, published extensive extracts of their transcripts, and based his decision entirely on their impact.

The DA launched a new application in the high court late last year to compel the NPA to comply with the SCA order. In response, the NPA argued that the recordings or transcripts were "inextricably linked" to Zuma's representations and therefore could not be disclosed without Zuma's consent.

The NPA and Zuma's stonewalling was met, in November, with a story in the Sunday Times based on some of the material being withheld. But the newspaper did not publish the actual material.

On August 16 this year, the high court ruled in the DA's favour, ordering the NPA to deliver up the tapes, their transcripts, and any consequential NPA internal memoranda, although there was a mechanism to censor any part of the memoranda that revealed the confidential, written representations. But this did not satisfy Zuma. Last week, his lawyers lodged an application to appeal and blocked delivery yet again.

In the public interest, the Mail & Guardian has taken the previous disclosures a step further with the extracts published today. They serve also as a reminder of the unfulfilled promises that softened Mpshe's ­controversial decision.

In his April 2009 address, Mpshe noted: "The NPA has decided to request the inspector-general of intelligence [IGI] formally to investigate any possible illegality surrounding the recordings that were presented to it."

The IGI was to investigate how state-sanctioned recordings came to be made and how they came to be provided to Zuma's lawyer. His report has never been made public.

Further, Mpshe stated: "The NPA believes that it is vital that a full and proper investigation must be conducted by a judge or independent person to make recommendations about any further actions to be taken, whether of disciplinary or criminal nature, as well as the framework within which the NPA operates to ensure that such abuses never occur again."

That promise was never realised. On the contrary, events since April 2009 suggest the NPA has simply gained a new set of masters.

  • Ngcuka has publicly denied ever being part of a conspiracy against Zuma. McCarthy has never responded publicly.

More on this story

* Got a tip-off for us about this story? Email [email protected]

The M&G Centre for Investigative Journalism, a non-profit initiative to develop investigative journalism in the public interest, produced this story. All views are ours. See www.amabhungane.co.za for our stories, activities and funding sources.