Spy tapes: Can Hofmeyr keep Zuma off the hook?

Deputy prosecutions chief Willie Hofmeyr questions the trustworthiness of everyone in the Mbeki inner circle. (Paul Botes, M&G)

Deputy prosecutions chief Willie Hofmeyr questions the trustworthiness of everyone in the Mbeki inner circle. (Paul Botes, M&G)

Deputy national director of public prosecutions Willie Hofmeyr has delivered a stinging attack on former President Thabo Mbeki and his circle, in defence of the 2009 decision by the National Prosecuting Authority (NPA) to discontinue the corruption case against Jacob Zuma.

But do his charges of a broader conspiracy stand up? And, in the context of the Democratic Alliance’s attempt to have a judge set aside the decision to terminate the prosecution of Zuma, do they matter?

Hofmeyr alleges former national director of public prosecutions Bulelani Ngcuka – with former Scorpions boss Leonard McCarthy and former intelligence minister Ronnie Kasrils – were “part of a broader collective of Mbeki supporters who viewed the NPA as a tool to fight Mbeki’s political battles”.

    Cast of characters in the spy tapes saga

He accuses Mbeki of lying and interfering with the prosecution of Jackie Selebi, former national commissioner of the South African Police Service. He says Ngcuka, using McCarthy as his proxy, was involved in directing the Zuma prosecution, and possibly other investigations – long after Ngcuka had formally departed as prosecutions chief.

Sensational claims
Sensationally, Hofmeyr claims: “It was Ngcuka, with others, and not McCarthy, who ultimately decided when Zuma should be charged.”

Hofmeyr’s allegations are contained in a 153-page answering affidavit delivered late and somewhat chaotically on March 31.

For the first time it sets out the NPA’s – or, more precisely, Hofmeyr’s – version, following years of prevarication by the NPA, mostly under the watch of its former acting head, Nomgcobo Jiba.

The fact that it is Hofmeyr’s version is significant – and may become more so. Former acting national director of public prosecutions Mokotedi Mpshe decided on April 1 2009 that the alleged manipulation by McCarthy “compromised the integrity of NPA and the Zuma prosecution”, making the criminal case’s continuation untenable.

But Hofmeyr’s affidavit, and the rough notes of NPA meetings annexed to it, highlight the central role he played in that decision.

Prior to Mpshe’s decision, he appears to have been the only person who argued that the charges should be withdrawn.

Hofmeyr notes: “I argued that the prosecution should be discontinued.
I had investigated Zuma’s allegations. In my view, they proved that McCarthy and Ngcuka had actively abused the NPA to discredit Zuma.”

More than that, there are numerous occasions where he claims to be speaking for Mpshe and referring to information only Mpshe would have.

Given that Mpshe confirmed under affidavit that everything Hofmeyr was saying about him was correct, the day before Hofmeyr’s own affidavit was signed, that confirmation will be questioned when the DA gets another chance to make its final factual submissions in late April.

Two very different versions
Mpshe’s credibility will also be at issue, given that he has now provided affidavits confirming two very different versions of who took the decision to delay charging Zuma until after the ANC elections in Polokwane that saw Zuma oust Mbeki.

Hofmeyr’s account is direct. He states: “McCarthy did, in fact, manipulate the timing of the institution of the prosecution against Zuma for political reasons. He did so because he, and others close to Mbeki and opposed to Zuma, believed that delaying the prosecution would harm Zuma’s attempts to compete against Mbeki for the position of ANC president.”

Hofmeyr stacks up the evidence garnered from the so-called spy tapes – interceptions of McCarthy’s and other phone calls secretly recorded by the National Intelligence Agency and police crime intelligence.

Chunks of these were leaked to Zuma’s lawyer, Michael Hulley, who used them to back his case that the prosecution of Zuma was politically inspired.

Hofmeyr refers to the conversations McCarthy had with Ngcuka and others about the possible effect on Polokwane if Zuma was charged before or after the crucial vote.

The transcripts of his communications certainly suggest McCarthy was partisan on this issue.

The problem is that other evidence suggests Mpshe, not McCarthy, took the decision to postpone charging Zuma until after the conference.

Hofmeyr’s own affidavit confirms Mpshe told lead prosecutor Billy Downer the decision was Mpshe’s.

He states: “On December 6 2007 Mpshe … told Downer although he was satisfied with the draft indictment, he had decided to delay the prosecution … because he did not want to be seen to be interfering with ‘the Polokwane process’, particularly in light of President Mbeki’s call for stability prior to Polokwane.”

According to Hofmeyr, Mpshe told Downer he had also discussed the matter with the justice minister. This had given him further “insight” into why it was necessary to delay the prosecution.

Hofmeyr states: “Downer felt Mpshe had allowed the minister to influence him. He challenged Mpshe. Mpshe denied he had allowed the minister to influence him. He told Downer it was only his decision.”

So, according to Mpshe’s contemporary account, McCarthy had nothing to do with the decision that is Hofmeyr’s chief evidence for a conspiracy. How does Hofmeyr get around that? Awkwardly.

“When I learned the prosecution had been delayed, I was angry,” he says. “I couldn’t understand how such a decision had been made … I asked Mpshe how the decision to postpone the prosecution had come about. He confirmed McCarthy had persuaded him that it was necessary to postpone the prosecution.”

And despite this being one of a number of occasions where Hofmeyr claims to have been upset by McCarthy’s actions, nowhere in his affidavit does he disclose any contemporary record expressing his reservations.

In fact, the record reflects McCarthy telling Downer he was also angry about the decision to delay.

Because this does not fit into Hofmeyr’s narrative about McCarthy, he is forced to resort to rather shameless speculation.

He writes: “He [McCarthy] pretended to Downer that he was also angry about the decision to delay the prosecution. He made it seem that he had had nothing to do with the decision. This was a deliberate misrepresentation on his part. McCarthy knew that Downer kept notes. He wanted it on record that he had not been part of the decision.”

But Hofmeyr’s problems with Mpshe go further. Elsewhere he argues it was McCarthy, not Mpshe, who took the original November 2007 decision to re-charge Zuma. This contradicts another version Mpshe confirmed on affidavit.

Hofmeyr argues: “Mpshe had no power to make the decision to prosecute Zuma, nor did he purport to do so. I need to point out that in previous litigation … this question has been blurred.”

Hofmeyr notes that, in a 2007 affidavit confirmed by Mpshe, lead investigator Johan du Plooy stated that “Mr Mpshe … issued the instruction to the prosecution team to reinstitute the charges without delay”.

‘These paragraphs obscure what happened’
Hofmeyr concedes: “Mpshe signed a confirmatory affidavit in the above matter. In hindsight, he should have anticipated that these paragraphs, drafted the way they are, obscure what happened. Although this oversight is regrettable, the NPA … submits that it is understandable.”

But the core problem with Mpshe’s decision to terminate the prosecution is the lack of any real paper trail to justify it.

This was, on his own account, the most high-profile and difficult decision of his career. Yet there is no formal record of the process by which it was reached.

Members of the NPA’s inner circle appear to have held panicky crisis meetings in the wake of the allegations conveyed by Hulley – and then apparently confirmed by the tapes.

Yet they did not record or minute these crucial discussions – the only records survive because someone kept rough notes.

According to Hofmeyr, Mpshe tasked him and another deputy, Sibongile Mzinyathi, to investigate Zuma’s allegations that his prosecution had been manipulated.

“Mpshe made his decision based on the contents of the intercepted conversations as well as the evidence uncovered as a result of my and Mzinyathi’s investigations.”

Again, there is no formal report of this crucial “investigation” other than their notes about what they heard on the spy tapes.

By contrast, the prosecution team provided detailed written memoranda in which they argued strongly that what McCarthy had done had not tainted the prosecution – and that it should be left to a court to decide anything to the contrary.

Hofmeyr’s account appears to confirm the DA’s claim that Mpshe’s decision was taken rashly, in the heat of the moment. It was only after listening to some of the recordings himself on March 31 that Mpshe resolved the prosecution had to stop.

Hofmeyr records: “On the following day, April 1 2009, Mpshe met with the deputies ... It is evident from the record of that meeting he was disturbed by what he heard on the tapes … He told us that listening to the recordings had made him angry. He informed us that he could not go on with the case and that he had decided to drop the charges …

“Mpshe felt betrayed by McCarthy … Mpshe was also struck by the disrespectful jibes that McCarthy and others made about him (and me) when he spoke about us to others.”

The DA argues that, following Mpshe’s emotional decision, the reasons later advanced were merely post facto attempts at justification.

Although Hofmeyr’s extended account of the multiple Mbeki conspiracies undoubtedly contains some truth, it is likely to play better at Luthuli House than in court.

Mbeki’s office on Wednesday issued a statement saying he had “noted media reports” about Hofmeyr’s allegations, but had not yet had sight of the court papers and would “determine the appropriate cause of action” once he had.

Kasrils said Hofmeyr had raised nothing he had not answered before. Ngcuka and McCarthy could not be reached for comment.

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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