The Democratic Alliance may have shot itself in the foot by forcing the National Prosecuting Authority (NPA) to release the controversial spy tapes, but they have done everyone else a favour – including me. I feature, you see. There I am in the notes about extracts of telephone intercepts provided to the NPA by the then National Intelligence Agency.
In black and white it is noted: “04/06/08: Billy to Sam Sole. And Billy really refuses to disclose anything critical … “
“Billy” is Billy Downer, chief prosecutor in the Schabir Shaik trial and the corresponding corruption case against then deputy president Jacob Zuma, which was abandoned in April 2009 on the strength of what was contained in the intercepted conversation between NPA officials and people in then-president Thabo Mbeki’s camp.
Elsewhere in the spy tapes transcripts Billy is referred to as “the Kid”, perhaps because of his crack-shot prosecutorial aim.
In the internal notes of the NPA, there were two more alleged interceptions recorded between Downer and me, neither of which, apparently, disclosed anything serious that could be pinned on “Billy the Kid”.
The situation was very different, however, with Downer’s superior, then Scorpions boss Leonard McCarthy. In 2009 the conversations, recorded by crime intelligence and leaked to Jacob Zuma’s lawyer Michael Hulley, were played, on a selected basis, to the NPA to show that McCarthy had behaved improperly.
Transcripts of some of those conversations were then disclosed when the then acting national director of public prosecutions, Mokotedi Mpshe, announced the decision to terminate the Zuma case.
Mpshe cited these extracts as evidence of collusion between McCarthy and the former prosecutions boss, Bulelani Ngcuka, to manipulate the prosecutorial process before and after the Polokwane elections in December 2007 that removed Mbeki as ANC president in favour of Zuma.
The DA has sought a judicial review of Mpshe’s decision, believing that the evidence disclosed concerning McCarthy’s actions did not invalidate the case against Zuma.
To make its case, the DA demanded access to the full recordings on which Mpshe based his decision, as well as records of internal NPA discussions that led up to his bombshell announcement.
Zuma resisted this disclosure to the point of abusing the court process. Finally, a few weeks ago, the material was handed over.
It is not clear why Zuma fought so hard to keep the transcripts secret – except for the most cynical reason that, without access to the very material on which Mpshe based his decision, the DA could not practically pursue its review.
By and large the fuller extracts strengthen Zuma’s case that there was a conspiracy against him by the Mbeki administration, and thereby perhaps complicate the DA’s task.
It is not possible to give more than a sense of the conversations (the full papers are online at mg.co.za/spytapes) but they show how truly embedded McCarthy was in the Mbeki camp.
The extracts, which run from November 2007 until April 2008, feature regular conversations between McCarthy and Ngcuka, who had resigned as prosecutions head in 2004 as the Zuma fight-back team began to take aim at him.
Mbeki’s political interests
They show how McCarthy and some of his key lieutenants had adopted Mbeki’s political interests as their own. And McCarthy was prepared to use his position to advance those interests. He repeatedly discussed the issue of the timing of a decision to lay new charges against Zuma with Ngcuka, who appeared to act as a proxy and cut-out for informal, and therefore deniable, communication with Mbeki.
At issue was how the timing of such an announcement might impact on the voting delegates: wake them up to the dangers of electing a deeply flawed candidate, or harden sympathy for Zuma.
McCarthy discussed the run-up to and aftermath of Mbeki’s defeat at Polokwane in overtly political terms, not only with Ngcuka, but with other Mbeki acolytes, such as businessman Mzi Khumalo – at one time confessing that, after Mbeki’s defeat, his wife said: “You look like you lost your mother.”
They show how, in private, McCarthy could refer to Judge Ian Farlam as “that cunt” merely for ruling against him in the Supreme Court of Appeal case regarding the contested search and seizure warrants executed against Zuma.
The disclosures go wider than the transcripts, including notes of meetings between senior NPA executive Willie Hofmeyr and Hulley, at which Hulley first put on the table what the Zuma camp had in its possession.
It includes references to some other startling interceptions that were never, in the end, provided to the NPA, including alleged conversations with presidency officials about the leaking of Kate Zuma’s suicide note at a time that would do maximum damage to Zuma before Polokwane.
Zuma’s Mozambican-born wife Kate committed suicide in 2000 and left a note excoriating Zuma.
The presidency at the time denied allegations it had been involved in the leaks. And therein lies the value of these disclosures.
They show the unvarnished truth about the exercise of power and the politicisation of state bureaucracy – then and now.
There is an unbroken thread linking McCarthy’s crass partisanship with the ongoing destruction of any culture of bureaucratic independence. That thread finds expression in the “orgy of kowtowing” that characterised the hapless mid-level yes-men in the Nkandla saga to the endless shenanigans around the leadership of the NPA; from the cynical manipulation of a visa application for the Dalai Lama to the removal of the previous minister of energy and his director general for not getting it on with Rosatom, the Russian nuclear power company.
Decision made in anger
To the DA’s advantage, the disclosures suggest Mpshe took his decision in anger after listening to the tapes, and cast around later for legal arguments to bolster his position –without clearly evaluating the key question as to whether McCarthy’s frolics impacted on Zuma’s right to a fair trial.
Mpshe’s expression of shock was either naive or disingenuous – after all, he owed his own elevation to the removal of his predecessor, Vusi Pikoli, precisely because Pikoli resisted such political dictates.
The lessons from the spy tapes are:
- That it is not that McCarthy is a boorish apparatchik – it is that the exercise of power produces and promotes boorish apparatchiks;
- That behind every solemn public assertion of procedural rectitude a myriad private channels of intimate and messy congress play out between politicians and officials – channels that they use to screw the rest of us and, at times, each other;
- That accountability is easily side-stepped if we have regard only for form rather than content, such as the lamentable Seriti commission; and
- That we must grasp every opportunity for accountability with imagination and ruthlessness, and fight to protect the remaining institutions and cultures that guard independent oversight – such as the courts, the public protector and, yes, the media.
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The M&G Centre for Investigative Journalism (amaBhungane) produced this story. All views are ours. See www.amabhungane.co.za for our stories, activities and funding sources.