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21 Nov 2014 00:00
A Democratic Alliance affidavit on the spy tapes provides insight into why former acting NPA boss Mokotedi Mpshe dropped more than 700 charges against President Jacob Zuma on April 6 2009. (Lisa Skinner, M&G)
“The state alleges ... an overriding and pervasive scheme of corruption that was designed to assist the entire [Schabir] Shaik/ Nkobi [Holdings] empire in all its business ...
It was also designed to be of extraordinary duration and ultimately to keep [Jacob] Zuma, as the holder of the highest offices, on the Nkobi payroll indefinitely as a beneficiary of Nkobi’s success ...
“The mode of conferring benefits to Zuma extended to the ANC in his capacity as the highest office bearer of the ANC, which was also to be an eternal beneficiary in the extended scheme of corruption.”
Prosecutor Billy Downer’s ringing words, contained in the material recently extracted by the Democratic Alliance from a deeply reluctant government, breathe confidence.
And in their totality, the released records, which include the “spy tapes”, provide a powerful vindication of his view. Anyone interested in whether South Africa’s first citizen deserves his day in court should read the DA’s supplementary affidavit, which is based foursquare on them.
*Read the DA’s supplementary affidavit here
Filed a fortnight ago, the 104-page document hardly caused a media ripple. But it provides a quantum leap in our understanding of why then-acting prosecutions boss Mokotedi Mpshe withdrew more than 700 counts of corruption, money laundering and racketeering against Zuma on April 6 2009, 14 months after formally reinstating them.
The transcripts of intercepted conversations, mainly between Scorpions head Leonard McCarthy and former prosecutions chief Bulelani Ngcuka, are the fruit of a five-year legal battle, including two interlocutory applications that went all the way to the Supreme Court of Appeal.
Protecting the NPA at all costs
Once digested, the new evidence that Mpshe acted unreasonably could fuel discussions in the ANC about an exit strategy for Zuma, already weakened by the Nkandla scandal.
Its full implications will perhaps only dawn on South Africans when the DA’s application for a review of Mpshe’s decision gets under way, probably in March next year.
Justifying that decision, Mpshe argued that the tapes demonstrated a political conspiracy between McCarthy and Ngcuka, by then a businessperson and prominent backer of then-president Thabo Mbeki’s re-election campaign, that prejudiced Zuma and would have denied him a fair trial.
Central evidence of this plot, it was claimed, was the politically motivated decision to postpone the serving of the indictment on Zuma until after the ANC’s December 2007 Polokwane conference, apparently to shield Mbeki from a backlash from delegates. Also held up as evidence of political manipulation was the decision to launch charges immediately after Polokwane, presumably to discredit Zuma, then the ANC president-elect.
The tapes reflect very poorly on McCarthy, depicting him as a Mbeki sycophant happy to discuss the timing of the Zuma indictment at length with the president’s aide-de-camp. More importantly, from the DA’s depiction of the evidence, he emerges as a boastful self-promoter who claimed influence in high places when he had none.
But the record also shows that McCarthy’s political sympathies and alleged braggadocio had no bearing on the Zuma case. It demonstrates pretty conclusively that the decision to postpone the serving of the indictment was Mpshe’s, whose concern was to dispel any impression that the National Prosecuting Authority (NPA) was interfering in the conference.
McCarthy was on leave at the time, and later told Downer that he was not consulted. In this context, his notorious declaration to Ngcuka that “he felt like going to Polokwane and charging [Zuma] there” is little more than tough-guy vainglory. Much the same applies to the post-conference timing of the charges. Mpshe ultimately decided this after a “multilayered corporate” process, whereas Downer pointed out that “the [prosecution] team’s recommendation was to prosecute as soon as possible, for good prosecutorial reasons”.
Fast forward to April 2009, when pressure to clear the last barrier to a Zuma presidency intensified before the looming election. Mpshe apparently still accepted that the prosecution had merit.
What changed his mind?
According to the DA, the records suggest that confidential oral representations by Zuma’s lawyers, Kemp J Kemp and Michael Hulley – later described by two senior NPA officials, Thanda Mgwengwe and Sibongile Mzinyathi, as “blackmail” – were intended to shock the NPA into dropping the charges without regard for the strength of the case.
These included claims of serious wrongdoing by McCarthy, Ngcuka, Downer, former justice minister Penuell Maduna, then-deputy national director of public prosecutions Willie Hofmeyr “and many other prominent politicians and members of the intelligence services”.
Recorded notes quote Zuma’s lawyers as saying that whether the information was lawfully obtained “is beside the point – we will release it”, and that, in a plea for a permanent stay of the charges, “we will mention the issue of senior NPA officials involved in political machinations. Whether we win or lose … people won’t forget it”.
The Bumiputera team urged rejection of the representations, branding them irrelevant to the Zuma case and pointing out that they were not deposed on oath.
But the notes reveal the NPA leaders’ deep anxiety that the allegations might filter into the public domain.
In early March, Zuma’s lawyers turned the screws by revealing that they had acquired deeply compromising transcripts of intercepted phone calls and SMSes, including ones implicating “TM” (Mbeki) – the so-called spy tapes.
Downer and others reacted by telling Mpshe that the claims of a political plot were a “red herring”, as neither the prosecuting team nor Mpshe were implicated.
Downer also pointed out that, as the transcripts could only have been illegally obtained, the NPA should not listen to or verify them.
The prosecutors’ stance was bolstered by two senior advocates brought in to advise the NPA, Wim Trengove and Andrew Breitenbach, who held that the sole consideration should be the strength of the case and that “the proper forum for evaluating the allegations to fair trial is court”.
Crucial factors ignored Two other factors then changed the game, the tapes suggest. The first was Hofmeyr, shown as the only senior official to press for the dropping of charges, but not on their merits. He referred to the reputational risk to the NPA, hinting that he would quit if the prosecution went ahead.
“The other thing is at the strategic level, trying to save this organisation,” he is recorded as saying. “The [Scorpions] were closed because of this case. The NPA is wobbling, with a few [top officials] looking for other jobs. It is strategically unwise to say with all this info it took a court to finally show the NPA that this case should proceed.”
In an exchange between McCarthy and another official, Faiek Davids, in December 2007, Hofmeyr was described as “actively a pro-Zuma man” who was “unconvinced” about renewing Zuma’s prosecution.
The last straw seems to have been Mpshe’s decision to listen to the tapes on March 31 2009. The reaction was immediate – apparently infuriated by what he had heard, Mpshe told the NPA managers the next day that he was abandoning the prosecution. Mzinyathi records that “after listening to the tapes … he got angry … he decided to drop the charges”.
Whether Zuma had a strong case to answer seems to have played no part in Mpshe’s emotional response.
In a final memorandum two weeks later, the Bumiputera team recorded its objection that the single most important factor – whether McCarthy’s behaviour had improperly influenced the decision to prosecute and was likely to influence the fairness of the trial – had been ignored.
Throughout the 11 years of the corruption investigation, Zuma and his lawyers have studiously avoided engaging the case on its merits. The strategy has been threefold: to politicise the issue, to attack the investigators and their institutions, and to throw up a dense smokescreen of legal technicalities.
More of the same can be expected in response to the new evidence. The problem for the president now is that he can no longer rely on blind political support, as he could in 2009. And the case for overturning Mpshe’s decision has got a whole lot stronger.
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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.
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