NPA decision on spy tapes to determine public opinion

The decision by then-head of the NPA Mokotedi Mpshe to drop the charges against Zuma cleared the way for him to become president of South Africa. (Delwyn Verasamy, M&G)

The decision by then-head of the NPA Mokotedi Mpshe to drop the charges against Zuma cleared the way for him to become president of South Africa. (Delwyn Verasamy, M&G)

To charge, or not to charge, President Jacob Zuma with corruption again will define how the public view the National Prosecuting Authority (NPA), all those involved in the so-called spy tapes saga agree. They just disagree over which move would do the most damage to democracy.

Seven minutes into a three-day hearing, Pretoria high court Judge Aubrey Ledwaba interrupted Sean Rosenberg, the advocate acting for the Democratic Alliance, to request that he address the third respondent in the case as “President Jacob Zuma”.

Ledwaba, the deputy judge president, a veteran of many complex and controversial cases, was apparently so primed for theatrical DA disrespect that he jumped the gun. Rosenberg pointed out he had been referring to Zuma in the days before he took office – then he was “mister” and another man was “president”.

But the request from the Bench stood.
“We want the public to have confidence and to see the courts are respectful to the litigants before it,” Ledwaba explained later in the day.

He did not insist on the same treatment when Zuma’s counsel, Kemp J Kemp, subsequently referred to “Mr Zuma” time and time again.

If the lead justice on a Bench of three was concerned about appearances – in this case, the sight of the official opposition attacking a sitting president in his courtroom –  he was not alone. During the course of the week, several parties argued that the decision on this case, and the decisions eight years ago that led to it, are ultimately all about how the public perceives the NPA. And that, they say, has serious implications for the rule of law and thus democracy.

What they cannot agree on is whether putting Zuma in the dock will bolster democracy, or undermine it.

“Withdrawing a case such as this, at the 11th hour, on this apparently rather narrow basis, could do, and we suggest in fact has done, great damage to the institutional integrity of the NPA in the minds of the properly informed members of the public,” Rosenberg said in court on Thursday morning.

Political manipulation of a criminal prosecution could be sufficient grounds to drop a case, Rosenberg said. And the Scorpions boss Leonard McCarthy conspiring to change the timing of charging Zuma to help then-president Thabo Mbeki defeat him at the ANC’s 2007 Polokwane conference, which was revealed in intercepted phone calls, would count as manipulation.

But that had to be balanced against the seriousness of the case against Zuma, he argued.

Instead of engaging in that delicate balancing act, Rosenberg said, the then NPA head, Mokotedi Mpshe, took “an impulsive, emotional decision” in April 2008 to withdraw the charges against Zuma, and so set the country’s course for the next eight years.

“We cannot allow the pursuit of one individual to trump the independence that we require of the NPA,” advocate Hilton Epstein, acting for the NPA, countered on Wednesday. “You can’t have a constitutional democracy unless you have an independent prosecution authority.”

Independence, Epstein held, included those accused of commercial crimes knowing “that there is nobody in the background paying somebody for that prosecution.

“The merits of this matter don’t come into it … Ordinarily based on merits, there would be a prosecution, so we don’t deal with merits. The question is whether you have a prosecution that is so affected by outside manipulations that the public lose confidence.”

And even if Mpshe made the wrong decision, said Kemp, it was his mistake to make.

“You may not like it. I may not like it … but you cannot say that the reaction or reason is irrational.”

Even if the court, which reserved judgment on Thursday, was to agree that it can and should set aside Mpshe’s decision, Rosenberg said, what happened after that would not be up to the court.

In other words, the NPA will still have to decide what to do, and a victory for the DA will not necessarily put Zuma back in the dock.


Picture painted of a malevolent McCarthy

“Most of us prioritise the bribe giver and the bribe-taker,” the World Bank’s vice-president for integrity, Leonard McCarthy, told a conference in Hong Kong in pre-recorded video in May last year. “This morning, I suggest we sharpen our focus on the middlemen.”

Before he joined the World Bank as its investigator-in-chief of fraud and corruption, McCarthy himself acted as a sort of middleman for then-president Thabo Mbeki, former employers of the National Prosecuting Authority (NPA) told the high court in Pretoria this week. By doing so, he corrupted the NPA to such an extent that it brought his colleagues to tears and shook the foundations of South Africa’s democracy.

“The irregularities in Mr McCarthy’s conduct are not to be minimised,” advocate Hilton Epstein, acting for the NPA, told the high court, as he laid out what amounts to, although he did not describe it as such, allegations of perjury, conspiracy, lies and mean-spiritedness by the then head of the Scorpions.

The closest McCarthy came to being defended was an assertion by Sean Rosenberg, acting for the Democratic Alliance, that “the McCarthy conduct had an insignificant effect or impact”.


Former Scorpions chief Leonard McCarthy (right) with then prosecutions boss Vusi Pikoli. (Werner Beukes, Sapa)

The main players, by contrast, got off lightly. The matter ultimately involves allegations that President Jacob Zuma was corrupt on a grand scale, but for three days the debate was on the degree to which Zuma was a victim, not a perpetrator, of criminal activity.

The matter also hinges on the degree to which Mbeki’s political battles were fought by state functionaries, although he was not implicated.

“There is no suggestion and there is no evidence that president Mbeki himself was conspiratorial in this prosecution,” Epstein said, before painting McCarthy as the villain, with a specially prepared chronology of his baleful influence.

McCarthy had been considered something of a crime-fighting hero in the NPA and beyond – until early 2008, when Zuma’s defence team produced tape recordings of his intercepted phone calls, which hinted at the timing of Zuma’s prosecution being manipulated, supposedly to help Mbeki defeat him at the ANC’s 2007 elective conference in Polokwane.

The Mail & Guardian has made many attempts to reach McCarthy for comment in the past seven years. None has been successful.


Zuma: ‘I am not at risk of being prosecuted’

The spy tapes case heard before the high court in Pretoria does not place him in jeopardy of prosecution, President Jacob Zuma said on Monday, and any supposition that he could face a corruption trial “is speculative at best”.

Such speculation aside, he is free to appoint heads of the National Prosecuting Authority (NPA), Zuma added, just as he is free to accept their resignation.

“I am neither charged nor am I found to be guilty by any court of law,” Zuma said in an affidavit sworn on Monday.

He made the statement in response to a legal challenge that organisations Corruption Watch and Freedom Under Law filed in August, a challenge separate from but intertwined with the spy tapes matter that was argued before the high court in Pretoria this week.

Corruption Watch and Freedom Under Law hold that current NPA head Shaun Abrahams was not properly appointed because his short-lived predecessor, Mxolisi Nxasana, was never properly removed.

They also want Nxasana to repay the state the R17.4?million golden handshake he received.

A president appointing the head of an organisation that may well pursue him on criminal charges is a fundamental conflict of interest, the organisations have argued, and the head of the NPA should instead have been appointed by the deputy president.

But Zuma dismissed the arguments of a conflict outright this week. “As a matter of fact, there are no pending criminal charges against me,” he said.

What there are, he contended, were some nasty implications buried in the case. In their application, Zuma said, the two bodies had “embedded in it a wanton and veiled accusation that I would act improperly, or whoever the NDPP [national director of public prosecutions] would equally act improperly. There is no evidence to support what is merely an unfounded suspicion by the applicants.”

Phillip de Wet

Phillip de Wet

Phillip de Wet writes about politics, society, economics, and the areas where these collide. He has never been anything other than a journalist, though he has been involved in starting new newspapers, magazines and websites, a suspiciously large percentage of which are no longer in business. PGP fingerprint: CF74 7B0F F037 ACB9 779C 902B 793C 8781 4548 D165 Read more from Phillip de Wet

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