After eight years of intense legal battles in the spy tapes case, it took the Supreme Court of Appeal less than a morning to extract two crippling concessions from the National Prosecuting Authority and President Jacob Zuma.
The two were seeking leave to appeal a high court judgment that found the 2009 decision to drop corruption charges against Zuma was irrational. The case was set down for two days of hearings, but by lunchtime on Thursday, both their legal teams had conceded that the decision was invalidly taken and therefore irrational.
Former acting prosecutions head Mokotedi Mpshe dropped the charges in April 2009 based on revelations in the “spy tapes”. The tapes were given to the NPA as part of Zuma’s “representations” as to why he should not be prosecuted.
They were recordings of telephone conversations, mostly between former Scorpions head Leonard McCarthy and the first National Director of Public Prosecutions, Bulelani Ngcuka and revealed that McCarthy had consulted extensively with Ngcuka, a passionate Mbeki supporter, about when to indict Zuma – with a view, said Zuma, to bettering Mbeki’s chances of winning the ANC elective conference in Polokwane.
The DA immediately challenged Mpshe’s decision in court saying it was irrational in law and the high court agreed.
Up until the case got to the Supreme Court of Appeal, the focus was on the revelations in the tapes. But at the Supreme Court of Appeal another issue emerged: a judgment by the Constitutional Court, which said that when a decision-maker mistakenly took a decision under the wrong section of legislation, or in this case, the Constitution, it invalidated the decision.
Mpshe could not – in terms of his review powers under the Constitution – review his own decision. And in an earlier case, the SCA had found that it was Mpshe who had decided to indict Zuma. Epstein tried to argue that Mpshe had not been invoking his power to review, but rather his power to “reconsider”, a power he also has under the Constitution.
But, said the justices, he was then “hamstrung” – because of the Constitutional Court’s decision.
Epstein had to concede that the Constitutional Court judgment was “against me” and that this effectively implicated the rationality of Mpshe’s decision.
Zuma’s counsel Kemp J Kemp SC also conceded on the use of the wrong section by Mpshe.
Judgment was reserved.