STATEMENT BY BULELANI NGCUKA, FORMER NDPP ON THE RELEASE OF TRANSCRIPTS OF RECORDINGS OF INTERCEPTED CONVERSATIONS BETWEEN HIM AND MR L.F. MC CARTHY AS WELL AS INTERNAL NPA MEMORANDA RELATING TO THE DECISION TO TERMINATE THE PROSECUTION IN THE MATTER OF SV ZUMA AND THINT HOLDINGS

1. Immediately after the decision of the then acting NDPP ( "Mr Mpshe") to abort the prosecution in the matter of SV Zuma and Thint Holdings ("the matter") , I issued a statement responding to the assertions made by Mr Mpshe about his excuse to blame my conduct and that of Advocate McCarthy for his decision.

In his statement Mr Mpshe alleged that our conduct compelled him to withdraw the charges, and stop the criminal prosecution of the accused in this matter. At the onset of his dramatic statement terminating the prosecution on 6 April 2009 Mr Mpshe stated that the NPA had been informed by the accused's defence team that Mr McCarthy and I had manipulated the prosecutorial process in this matter.

The NPA had understandably regarded the defence team's allegations as serious and had set out to investigate them.

2. In the concluding paragraph of his statement of 14 April 2009, Mr Mpshe sums up as follows the result of the NPA's investigation of the conduct that he says compelled him to withdraw the charges in the matter and terminate the prosecution-

"In the present matter, the conduct consists in the timing of the charging of the accused". (the underlining is mine).

The latter therefore is the sum total of the misconduct that allegedly compelled Mr Mpshe to terminate completely the prosecution he had duly instituted in late December 2007.

3. When I made my statement in 2009 the NPA had only publicly made available extracts of the intercepted recordings of the conversations between McCarthy and I; together with some "notes" consisting of an interpretation the NPA attached to the excerpts.

The internal memoranda and the material that are now available in the public domain pursuant to the decision of the Supreme Court of Appeal (SCA) to compel the NPA to release the material were not then available. That situation has since changed radically.

There is, in addition to the information released by order of the SCA, thanks to the openness and transparency principles underpinning our democracy, additional information available from so-called "open sources".

As a result of this newly available information and the renewed interest in the matter resulting therefrom, there is an understandable interest and expectation for me to "say something or be damned".

Also, unfortunately, the new material has in some instances been interpreted in a manner that perpetuates the lie that either myself or Mr McCarthy were in one way or the other to blame for the fact that the public interest that requires persons charged with serious offences should be prosecuted was frustrated in this matter, leaving the then acting NDPP and the NPA with no option but to terminate the prosecution of Mr Zuma and Thint in April 2009.

That view is untrue. I think therefore this is an opportune moment to address the falsehoods that were trundled out by Mr Mpshe and the NPA to justify the decision. To be direct: the allegation that any conduct on the part of Mr McCarthy and I caused, or compelled Mr Mpshe to stop the prosecution of Mr Zuma and Thint is demonstrably false and my view is that no reasonable person properly applying his mind to the facts of this matter could come to the conclusion that the excerpts of our intercepted conversation on the timing of the prosecution could result in the complete termination of the prosecution of the accused in this matter.

Importantly for the purpose of this statement, I record that it is disingenuous in the extreme to blame me or Mr McCarthy, as Mr Mpshe and the NPA sought to do, for the fact that the prosecution of the accused in this matter was terminated.

4. It must be noted that I am making this statement with some reluctance. Since 2009 not commented publicly on this matter. However, the current situation in which the matter is pending before the High Court raises its own difficulties for me. I am not a party to the pending proceedings.

But I am advised that on the authority of the Supreme Court of Appeal in the matter of National Director of Public Prosecutions v Zuma (573/08) [2009] ZASCA 1; 2009 (2) SA 277 (SCA) ; 2009 (1) SACR 361 (SCA) ; 2009 (4) BCLR 393 (SCA) ; [2009] 2 All SA 243 (SCA) 2 January 2009) that, notwithstanding that the aspersions cast against me and Mr McCarthy by Mr Mpshe and the NPA in this matter and that they impinge negatively and unjustifiably on my reputation, I do not have a real and substantial interest in the outcome of the pending litigation.

This means that therefore, save and except by means of responding to Mr Mpshe and the NPA through this statement, I am unable to intervene in the review proceedings so as to respond to the gratuitous and contrived excuse proffered by Mr Mpshe as the rationale for his decision to terminate the prosecution.

This is because the pending review proceedings are directed at what the applicant regards as an irrational decision and are not a platform for correcting false assertions made about third parties in the course of the announcement to terminate the prosecution of the accused in this matter. I now trust you will understand the choice of this medium to reply to Mr Mpshe.

5. I now return to Mr Mpshe's "justification" for his decision to terminate the prosecution of the accused in the matter. I have above quoted Mr Mpshe assertion as to what constitutes our alleged misconduct. But Mr Mpshe never alleged, nor could he, that the prosecution of the accused as conducted by the prosecution team, was tainted by the "timing discussion" which allegedly compelled him to wholly terminate the prosecution.

It simply cannot be that the "timing discussion" tainted the legal process itself whilst Mr Mpshe confirms that the prosecution team, and presumably Mr Mpshe himself, acted properly, honestly, fairly and justly throughout. It is inexplicable that, these accolades notwithstanding, Mr Mpshe came to the astounding conclusion that the ‘timing discussion' between McCarthy and I, offended his sense of justice to the extent that it would have been unfair and unjust to continue with the prosecution.

On the face of it there is palpable irrationality in his reasoning. It is nonsensical and smacks of a desperate attempt to clutch at straws. But since I am an interested party in the matter my views may be regarded with sceptism. So I would also like to refer to the views Advocate Wim Trengove SC , one of our country's eminent senior counsel, who was engaged as external counsel and acted on behalf of the acting NDPP and the NPA in the matter.

Trengove SC has in a public lecture on the matter argued cogently that Mr Mpshe's line of reasoning is flawed. He points out, as I do below, that on the available information it was Mr Mpshe who took the decision to prosecute. At all times, Mr Mpshe was, on his own version, unaware of the ‘timing conversation' between Mr McCarthy and I.

For this reason, Trengove SC argues that Mr Mpshe's decision must have been taken for good and proper reasons, and was unaffected by the alleged conduct of Mr McCarthy and I. Mr Mpshe indeed confirms that this is so his statement wherein he says that his conscience is clear.

6. In summary therefore, as is pointed out in Trengove SC's address, Mr Mpshe has acknowledged that the allegedly offending conduct that has resulted in McCarthy (and to some extent, myself) being "tarred and feathered ", always had to do with the timing of the announcement of the date of charging the accused, and never with the decision to prosecute itself.

The material which has been released recently shows that the prosecution team, the NPA and external counsel were ad idem that the decision to prosecute Mr Zuma and Thint was inevitable after the Shaik judgement, which was of course a few years before Mr Mpshe took the decision to prosecute.

Also, this had throughout been the view and the prosecutions team's recommendation. Therefore, the decision to prosecute was one taken by a number of people in different positions, who all came to the same conclusion. That much has been pointed out by Mr Billy Downer SC, the lead prosecutor in an address to the Middle Temple South African Conference.

Trengove SC in the address to which I refer above also argues that on the legal authorities, Mr Mpshe should have considered whether the alleged abuse (and let us be reminded that the alleged abuse is restricted to the ‘timing discussion' of Mr McCarthy and I ) "outweighs the compelling public interest in ensuring that those who are charged with grave crimes should be tried". I can see now evidence in the information made available to me that Mr Mpshe asked himself this question.

7. Now, Mr Trengove is not just any senior counsel. He was, as I state above, one of two external senior advocates engaged by the NPA and the then acting NDPP (Mr Mpshe) to assist the prosecution team on the matter. He argued several constitutional aspects relating this matter. He and Downer SC were closely involved in this matter.

It appears that the views of these eminent lawyers regarding the impact of the ‘timing discussion' on the decision to prosecute were ignored by Mr Mpshe. Why did Mr Mpshe ignore the advice of the prosecution team and the external counsel? Why was it not, as Trengove SC also argues, in a matter of such critical importance such as this one, not left to the courts to decide what effect any alleged abuse of process would have on the trial? That was after all, the advice that was given to the prosecution team.

The newly released material shows that the prosecution team shared this view and argued cogently that the ‘timing discussion' that Mr Mpshe blames for terminating the prosecution was irrelevant to the question as to whether the prosecution should proceed.

8. In his letter to Mr Mpshe, Mr McCarthy makes the important point that both the decisions to prosecute Mr Zuma and to delay the announcement of the date of his prosecution until after the Polokwane ANC Conference were taken by Mr Mpshe, and by him alone.

I am not aware of any response by Mr Mpshe disputing Mr McCarthy's assertion regarding his responsibility for these two decisions. In the circumstances I must accept that Mr Mpshe took both these decisions. I would have thought that, if Mr Mpshe was in any manner influenced by Mr McCarthy to take these two important decisions, he would have disputed Mr McCarthy's letter.

The question then arises: if the decisions to prosecute Mr Zuma and to delay the announcement of the launching of his prosecution until after the ANC Polokwane Conference were taken by Mr Mpshe and he alone, and without any influence being brought on him by Mr McCarthy as Mr McCarthy's letter asserts, why then is the timing discussion between Mr McCarthy and I of any relevance?

None, I would say. Particularly given that I have no reason to disbelieve the contents of Mr Mc Carthy's letter. The fact of the matter is that there was no causal link between the recordings Mr Mpshe relied upon and the decision to prosecute Mr Zuma. The same applies to the decision to delay the prosecution of Mr Zuma and Thint until after the ANC Polokwane Conference. If this is so, and on the facts available it must be so, then the conversation between Mr McCarthy and I on the timing of the prosecution could not be used as a basis for terminating the prosecution.

9. The latter paragraph brings me to the important timelines in this matter. I understand that the decision to prosecute was taken on or about 14 November 2007. The decision to delay the announcement of the date of the prosecution until after the ANC Polokwane Conference was taken by Mr Mpshe on or about 5 December 2007.

However, the main conversation on which Mr Mpshe relies for his decision to terminate the prosecution, only took place on 14 December 2007, some 10 days later. By then Mr Mpshe had on the available evidence taken the decision to delay the announcement of the decision to charge Mr Zuma and Thint until after the ANC Polokwane Conference.

How then, could the "timing discussion" be regarded as having compelled the Mr Mpshe to terminate the prosecution of Mr Zuma and Thint, I ask? I believe the veracity or otherwise of Mr Mpshe's contentions will be revealed if the NPA releases all its internal correspondence on the matter from the time the decision to prosecute on 14 November 2007 until 6 December 2007.

Particularly as regards the latter date, it will be interesting if the internal memorandum of 6 December 2007 from Downer SC to Mr Mpshe were also to be released in the public domain. I understand that on that day, Downer SC addressed a memorandum to Mr Mpshe confirming an earlier conversation in which Mr Mpshe confirmed that he took the decision to delay the announcement.

10. Additionally, I would wish to ask Mr Mpshe if the extract quoted below from a memorandum addressed to him dated 6 December 2007 rings a bell -

"We have the greatest sympathy for the Acting NDPP's reluctance to be seen interfere in the due political process that is about to unfold. We also appreciated the concerns relating to public order and stability these may be particularly fragile now. It is our view, however that if the decision to prosecute were to be announced in the normal course, as it would in any other prosecution, the Acting NDPP has nothing to fear. The moment the normal processes are deviated from however the NPA exposes itself to criticism from one quarter or another which will be difficult to rebut". (The underlining is mine)

Also, what does Mr Mpshe have to say about the notes of Downer SC published by the Mail & Guardian concerning his interaction with Mr Mpshe on his decision to delay the prosecution until after the ANC Polokwane Conference?

In his notes Downer SC categorically records that Mr Mpshe expressly stated at the time that the decision to delay the announcement of the launch of the prosecution until after ANC Polokwane Conference was his (Mr Mpshe's) decision and that it would not be altered.

11. Yet, on 24 April 2009, and against the background of all what is stated above concerning the timelines for the taking of these important decisions, Mr Mpshe seeks to justify his decision to terminate the prosecution on the ‘timing discussion' between Mr McCarthy and I; and chooses to say nothing about his own decision to delay the date of the announcement of the prosecution.

On the evidence that I outline herein, Mr Mpshe's attempt at establishing a causal link between his decision to delay the announcement of the decision to charge Mr Zuma and Thint until after the ANC Polokwane Conference, and the ‘timing discussion' between Mr McCarthy and I, is demonstrably false.

The real question is what compelled Mr Mpshe to falsely allege that it is our ‘timing discussion' that compelled him to terminate the prosecution, given Mr McCarthy's letter, the quote in paragraph 10 above, and Downer SC's notes, which clearly show that Mr Mpshe alone took the timing decision, some 10 days before the taped conversation between Mr Mc Carthy and I?

12. In light of all of this, I want to reiterate that the timing discussion not only had no causal connection with the decision to delay the announcement of the date of the prosecution until after the ANC Polokwane Conference, but that both Mr McCarthy and I were aware that the decision to prosecute had already been taken as early as 14 November 2007, which was well before we had the ‘timing discussion' on 14 December 2007.

 What I, however did not know at the time, is that Mr Mc Carthy had at all material times been aware that Mr Mpshe had on or about 5 December 2007 decided to delay the announcement of the decision to charge Mr Zuma and Thint until after the ANC Polokwane Conference. That is why in his letter he pertinently reminded Mr Mpshe that it is the latter who took the decision as to when to prosecute and he alone was responsible for that.

I surmise that, because of his wicked sense of humour Mr Mc Carthy made me believe he was seriously engaging with me on the timing of the prosecution, when in fact he was not. It is also important to understand who initiated the ‘timing discussion' of 14 December 2007. It was the "prankster" (Mr McCarthy) himself. But, how could Mr Mpshe have suffered from a bout of amnesia when he sought to "finger" Mr McCarthy and I as having had an inappropriate ‘timing discussion' on 14 December 2007, which so offended his sense of justice that he was compelled to terminate the prosecution?

Did it not occur to him that he himself had informed the prosecution team on or about 5 December 2007 that for the reasons emphasized in the quotation in paragraph 10 above he (Mr Mpshe) had decided to delay the announcement of the decision to prosecute Mr Zuma and Thint until after the ANC Polokwane Conference? I do not believe it did not occur to him.

If this is so, why did Mr Mpshe's own decision to delay the prosecution until after the ANC Polokwane Conference not have the same effect (on Mr Mpshe's sense of justice) as our ‘timing discussion'? I also believe that the decision of Mr Mpshe to delay the announcement of the decision to charge Mr Zuma and Thint on 5 December 2007, for the reasons mentioned, must have been known to those who compiled Mr Mpshe's statement and by the NPA's senior management. Why then was this fraudulent misrepresentation allowed to remain in the statement of Mr Mpshe?

13. There is also the comparatively small matter of the conduct of the National Intelligence Agency (NIA) or of one or more of its members in this whole matter. It is common cause that a person or persons within NIA released to the accused or the defense team secret and raw intelligence.

The NIA appears to have gathered the intelligence in the course of their duties - at least according to Mr Mpshe's own statement and the notes released by the NPA. The provisions of the Regulation of Interception of Communications Act Provision of Communication-related Information Act, 2002 are clear.

It is a crime to release such information, which is punishable by imprisonment for 10 years or a fine of R 2 Million rand or both. Were the latter crimes considered by Mr Mpshe? The charge that Mr McCarthy and I acted inappropriately by discussing the timing of the prosecution is dwarfed if compared to the acts of criminality attendant to the illicit release of the intelligence material by one or more NIA agents to benefit a senior political figure.

Also, under the Intelligence Services Act, 2002, section 26(1)(g); it is a crime for a member of the Intelligence Services to disclose classified information to an unauthorized person without the permission of the Director-General of the NIA. That crime is punishable by a fine and/or imprisonment of 10 years.

14. Despite the clear provisions of the law as stated above, the defence team in the matter illicitly received the recordings of my conversation with Mr McCarthy from NIA. They used them in their representations to Mr Mpshe to stop the prosecution of the accused. Mr Mpshe was nevertheless, despite the clear violation of the law as described above quite happy to dispatch two senior members of the NPA to go to the offices of the defence attorney for the purpose of listening to our taped conversations. Mr Mpshe appears to have had scant regard for the criminal conduct attendant to the illicit possession of these tapes by the defence team. Why did Mr Mpshe and the NPA engage in this obsequious groveling before the defence team?

The recently released correspondence and NPA notes of meetings show the apparent disdain of the defence team for NPA processes. According to the released notes the defence team had shown scant regard for the fact that the tapes they had in their possession were illicitly obtained. Instead of Mpshe dismissing the defence team's representations because they were based, as they were, on illicitly obtained material, Mr Mpshe was too keen to confirm what the defence team verbally told the NPA was contained in the taped conversations. Would the NPA do this if any ordinary member of the community were involved?

The obvious answer is an emphatic no! Why then did this happen in this case? Has any criminal investigation been initiated as a result of the criminal breaches I have referred to which were witnessed by the NPA? If not why has this apparent impunity and unlawful conduct on the part of one or more persons within the NIA been tolerated?

I also believe that it was improper and unethical for Mr Mpshe and the NPA to release our private conversations in the public domain. A matter of grave disquiet is the fact that Advocate Mc Carthy was at the time his conversations the head of the Directorate of Special Operations, and in that capacity in charge of the prosecution team; and he was interacting with that team on an ongoing basis.

He must have been in contact with external counsel such as Trengove SC as well. The NIA or a member thereof handed his intercepted conversations to the defence team of the accused. Did Mr Mpshe and the NPA consider that there was a possible breach of privilege in this? Is it unreasonable to suggest that there is a real possibility that the prosecution team's communications were also intercepted for the benefit of the accused?

15. I have posed these questions regarding the reasons why Mr McCarthy and I have been falsely accused by Mr Mpshe and the NPA to show that there is plausible reason for the inexplicable conduct of Mr Mpshe. But, that our ‘timing discussions' of 14 December 2007 compelled, or could have compelled Mr Mpshe to abort the prosecution of the accused, is not only false, it is arrant nonsense on stilts.

In all of this, to me, Mr Mpshe exhibits the impression of someone only too relieved to find an escape from the intolerable pressure of having to manufacture a political solution, and that he latched onto the ‘abuse of process' excuse related to the timing of the prosecution to rid himself of this burden, because the pressure had simply become unbearable. I am sure I am not alone in this view.

If Mr Mpshe or the NPA dispute this, they are invited to put up the full correspondence I have referred to herein and to address the issues I raise in this statement as part of the NDPP's answering affidavit in the pending review proceedings.

16. The above constitutes just part of my response to the circulated material that is being released relating to the decision to terminate the prosecution in this matter, and to the allegations of the NPA and Mr Mpshe that the conduct of Mr McCarthy and I has caused the termination of a prosecution that they would otherwise, have dutifully proceed with. I will expand on the content of this statement, should the need arise.

Statement issued by Bulelani Ngcuka, October 5 2014

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