The National Prosecuting Authoring (NPA) is expected to hand over additional documents to the Democratic Alliance (DA) on Monday that relate to the decision to drop corruption charges against President Jacob Zuma.
It follows a request by the DA for documents mentioned in transcripts and information handed over by the NPA to the party in September, but which were not included with the initial data handed over.
The documents requested include a memo highlighted this weekend by former NPA head Bulelani Ngcuka, who told the Sunday Times that it revealed the possible motivation for a decision by the NPA’s boss at the time, Mokotedi Mpshe, to drop 700 charges of corruption against the president.
The DA’s federal executive chairman James Selfe told the Mail & Guardian on Sunday: “The party had requested 28 documents that were referred to in the information that was received by the DA, but which were not included in the documents we received.”
“It was agreed that the NPA be given a few days to get the documents together – and that expires on Monday.”
He said the request included a memo written on December 6 2007 to Mpshe by Billy Downer, head of the team prosecuting Zuma. In the memo Downer allegedly recorded that Mpshe had informed the prosecution team that he had decided to delay the announcement of a decision to prosecute Zuma and arms company Thint until after the ANC National Conference in Polokwane between December 16 and 20 that year.
Selfe said the documents might prove to be irrelevant, but “it would be irresponsible not to request them and review them”. Pursuit of legal action – such as an application for a review of Mpshe’s decision to drop charges against Zuma – would require that the DA have sight of “any documents Mpshe had in front on him when making his decision”.
Legal advisors for the DA will spend this week listening to 100 hours of tapes that had not been previously transcribed, in order to provide context for the transcribed pages that were handed over and to ensure the data given to the DA had not been selectively chosen.
“That will be at least two days of listening to tapes,” Selfe said. “The problem is that Mpshe, now a land claims judge, is no longer there, so the NPA is trying to pull together all the documents.”
Retired appeal court judge Noel Hurt was appointed as arbitrator in August in an agreement between the DA, the NPA and Zuma.
Zuma’s lawyers told the Supreme Court of Appeal that they would not be opposing the release of the spy tapes after their final appeal to have the tapes kept from the DA was unsuccessful. This was after six years of the NPA opposing their release.
The appeal court then gave the NPA five days to release the transcripts of the tapes and related documents to the DA.
The court order stipulated that the recordings, as well as internal memoranda, reports and minutes of meetings dealing with the contents of the recordings, had to be handed over.
The tapes, containing recorded phone conversations that allegedly reveal collusion between the then heads of the directorate of special operations – the now defunct Scorpions – Leonard McCarthy and Ngcuka to charge Zuma before the ANC’s Polokwane conference in 2007.
Zuma was elected ANC president at the conference. Ngcuka had resigned as head of prosecutions in 2004.
At the time, acting NPA boss Mokotedi Mpshe, in dropping the corruption charges against Zuma in April 2009, said the recordings and data before him showed there was a political conspiracy against Zuma and he would not receive a fair trial.
Ngcuka was the first NPA boss to accuse Zuma of corruption, saying at a press conference that there was a “prima facie” case against Zuma, but that he would not be prosecuting him because he believed at that time there was little chance of a successful prosecution.
Thales’s South African subsidiary, Thint, won a R2.6-billion contract in 1997 to fit four new navy frigates with combat suites as part of what is now known as the arms deal.
It has been alleged that Zuma, then deputy president, benefited personally from that deal.
According to evidence provided at the trial of Schabir Shaik, alleged to be Zuma’s advisor, a code was used to indicate that Zuma would accept a bribe.
During Shaik’s trial it emerged that Alan Thetard of Thales (formerly Thompson-CSF) allegedly jotted down the terms of the bribe agreement on a piece of paper he later gave to his personal assistant, who typed it up and sent it via encrypted fax to Thales’s Paris and Mauritius offices.
The fax became a crucial item of evidence in convicting Shaik on corruption charges.
According to transcripts, McCarthy and Ngcuka were taped talking about the political implications of charging Zuma before or after the Polokwane conference. At the conference Zuma was set to compete with Thabo Mbeki for the presidency of the ANC.
A reading of the transcripts has them discussing the outcome of the conference and the fact that McCarthy would have no one to cover his back.
Ngcuka is also recorded the weekend before the conference suggesting that McCarthy wait for the weekend to be over before taking action against Zuma.
McCarthy is heard telling Mbeki that he still considers him the president after his loss at the Polokwane conference.