/ 28 April 2016

[From our archives] Spy tapes: Zuma avoids his day in court for 15 years

The since disbanded Scorpions raid President Jacob Zuma’s house in Forest Town, Johannesburg. Oupa Nkosi, M&G
The since disbanded Scorpions raid President Jacob Zuma’s house in Forest Town, Johannesburg. Oupa Nkosi, M&G

The Pretoria high court is due to deliver a vital judgment on whether prosecutors should consider, again, whether to pursue President Jacob Zuma on corruption charges relating to the arms deal – charges that can carry serious jail time. Zuma has always protested his innocence, even as his financial adviser went to jail for bribing him. In 2009, the National Prosecuting Authority (NPA) dropped all charges against Zuma, saying recordings of intercepted telephone calls showed his prosecution was being manipulated for political ends. In March, the NPA again argued that the discussions, especially those involving then Scorpions head Leonard McCarthy on when to indict Zuma for maximum impact, were so repugnant to justice that Zuma could never be prosecuted. The Democratic Alliance countered, as it has for years, that the seriousness of the charges against Zuma demand he stand trial.

The arms deal has haunted President Jacob Zuma for 15 years, though only in the latter part because of the spy tapes saga. This is how we got here:

Law enforcement agencies in four different countries raid the offices of Thomson-CSF (which later became known as Thales) in a joint investigation with Zuma’s financial adviser, and funder, Schabir Shaik, at its heart.

The National Prosecuting Authority (NPA) pursues Shaik but not Zuma, saying it would not do so despite “a “prima facie” case” against him.

Shaik is convicted on charges including bribing Zuma. The NPA, under a new head, announces that Zuma will be prosecuted; President Thabo Mbeki fires Zuma as his deputy.

The Zuma case is thrown out of court because prosecutors are not ready to proceed.

The Supreme Court of Appeal gives prosecutors the green light to use evidence obtained through disputed search and seizures. Zuma is served with an indictment shortly after unseating Mbeki as president of the ANC.

The Constitutional Court rules that raids on Zuma, which produced what was thought to be crucial evidence, were legal. But the Pietermaritzburg high court rules that there had been procedural unfairness in the way Zuma was pursued. Mbeki is removed as president.

The Supreme Court of Appeal overturns the Pietermaritzburg ruling, leaving the way clear for Zuma to be prosecuted again. But the NPA announces it will discontinue any prosecution because of abuses of process revealed in what later come to be known as the “spy tapes”. Only excerpts of the tapes are released. The Democratic Alliance tries but fails to have the decision overturned, and starts the process of gathering information for a new challenge.

After many court challenges, counterchallenges and appeals, the DA takes delivery of the spy tapes, and again starts gearing up to challenge the dropping of charges against Zuma.

March 2016
The Pretoria high court hears arguments from the DA on why Zuma should be charged with corruption again and arguments from the NPA on why he should not be pursued. The DA tells the court that if it decides to set aside the decision to drop charges against Zuma – as the DA demands – that does not automatically reinstate the charges against him. It only means that the NPA will have to make yet another decision on whether to charge him.

End April 2016
Judgment is expected from the high court, with the near certainty that the losing party will appeal.

Deposed, in his own ‘best’ interests, in 2005

In 2005, then-president Thabo Mbeki insisted that his then deputy, Jacob Zuma, was due the presumption of innocence and use of the full range of legal instruments available to him, before the corruption conviction of Schabir Shaik, his financial adviser, could taint him.

But Mbeki still “released” Zuma from his position, saying: “As president of the republic, I have come to the conclusion that the circumstances dictate that in the interest of the honourable deputy president, the government, our young democratic system, and our country, it would be best to release the honourable Jacob Zuma from his responsibilities as deputy president of the Republic and member of the Cabinet.”

Then-president Thabo Mbeki released Jacob Zuma as his deputy in 2005. (Madelene Cronjé)

Mbeki said he and Zuma were “acutely sensitive to the responsibilities we bear as prescribed by our Constitution”, which includes respecting the powers and functions of other spheres of government, such as the judiciary.

Though Mbeki did not say as much, his speech was interpreted to mean it would be constitutionally awkward to have a deputy president in office while he was being criminally investigated by a justice system over which he held some oversight.

Will Zuma be the fall guy? (Delwyn Verasamy, M&G)

Arms deal report: What bribes?

Last week President Jacob Zuma made public the full report into the arms deal handed to him by the Seriti Commission at the end of 2015, following its years-long enquiry.

“Despite the fact that various allegations of fraud, corruption or malfeasance were directed at government officials and senior politicians, no evidence was produced or found to substantiate them. They thus remain wild allegations with no factual basis,” the commission told Zuma.

In 2006, the Supreme Court of Appeal confirmed that arms company Thomson-CSF tried to bribe Zuma at a time when an investigation into arms deal corruption seemed imminent. But according to the Seriti Commission, such a bribe would have been wasted effort – because there was nothing to cover up.

“There is no need to appoint another body to investigate the allegations of criminal conduct, as no credible evidence was found during our investigations or presented to the commission that could sustain any criminal conviction,” the enquiry reported. “The commission has carried out an intensive investigation, and other local and foreign agencies have investigated the possible criminal conduct of people who were involved in the [strategic defence procurement packages]. No evidence of criminal conduct on the part of any person was found.”

On Monday, former president Thabo Mbeki released a 4 000-word missive that dismissed any attempts to link such post-facto bribes with corruption in the actual government procurement of weapons as clutching at straws, and implied that the phrase “arms deal” is racist.


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