Time to unravel the Spy Tapes tangle

18 August 2014

Earlier this year I read an article quoting Senzo Mchunu, Premier of KwaZulu Natal and Zuma loyalist, predicting that when the infamous "spy tapes" were eventually released, South Africa would learn that "there is nothing (in them) after all".  

Premier Mchunu was clearly confident that this would be good news for President Zuma, who would then be off the hook of his corruption charges, yet again.

The Premier may well be right that "there is nothing" in the tapes "after all".

But he seems unaware that this would be dreadful news for President Zuma  --  and devastating for the National Prosecuting Authority, particularly its former acting Director, Mokotedi Mpshe (who took the decision to withdraw the charges, paving the way for Jacob Zuma to become President in 2009).

This is because Advocate Mpshe, now a Judge, has always maintained that the contents of the tapes were explosive, demonstrating a political plot behind the corruption charges against Zuma, which rendered the prosecution "fatally flawed".

According to Mpshe, the tapes contain "wire-tap" recordings of telephone conversations between Advocate Bulelani Ngcuka (former National Director of Public Prosecutions) and Leonard McCarthy (former head of the independent corruption-busting Directorate of Special Operations, better known as the Scorpions).  

There are still many unanswered questions about why their conversations were secretly recorded;  which intelligence agency was responsible; what the unabridged tapes contain; and how they landed up in the hands of President Zuma's lawyers as they battled to keep their client out of court to answer charges on over 700 counts of corruption, fraud, money laundering and racketeering.  

In recent weeks, even more fundamental questions have arisen after former crime intelligence boss, Mulangi Mphego, called the authenticity of the tapes into question, saying they were not the ones produced by his outfit.  

Mphego was quoted in The Sunday Independent as saying: "The spy tapes Mpshe is referring to cannot be attributed to Crime Intelligence. I listened to all the tapes. I was surprised when I saw Mpshe on TV stating the reasons for dropping the charges."

When Mphego was asked if this meant the tapes had been fabricated, his quoted reply was: "Ask Mpshe. What I know is that the tapes that he is referring to are not the tapes I listened to. I'm very firm on that."

"I listened to Mpshe on TV and I was shocked because I could not reconcile what he was saying with what I knew". 

So now we need to ask some additional questions:  are the "spy tapes" that were used to drop the charges against Jacob Zuma genuine?  Have they been tampered with?  Or, could they even have been fabricated?

And now, over five years (and six court applications) after the tapes were used as the reason to drop the charges against Zuma and pave the way for him to become President, we are a significant step closer to having those questions answered.

On Friday 15th August 2014 , Jacob Zuma's advocate, Kemp J Kemp, admitted in the Supreme Court of Appeal, that there were no grounds on which to withhold the "spy tapes" from the DA.  

Kemp also agreed to consult with the DA's legal team, led by Advocate Sean Rosenberg, to identify a senior advocate or retired judge to go through all the documents on which the NPA relied to withdraw the charges.

We are in for an historic week ahead as all parties attempt to agree, by no later than Friday 16h00, on who will be tasked with reviewing the NPA's records for release to the DA by court order.

As we reach this important milestone, it must be asked: if there was no reason to withhold this material, why did Advocate Kemp drag the matter through six court hearings over five years and block us at every turn?  

There can only be one answer:  there is a lot to hide.

Once we have found out what that is, we will be much closer to determining whether the decision to withdraw the charges was legally "rational" or whether it could have been politically motivated, in which case we will proceed to seek a High Court review.

The DA is determined to see this case through to the end, whatever the cost, not because we are "anti-Zuma" or "anti-ANC" but because the issue at stake is crucial to every South African who wants to live in a constitutional democracy, and have a future for their children and grandchildren here.  

This is, quite simply, the most important review case in the 20 year history of our democracy. 

If, as we suspect, the charges were withdrawn for political reasons, the NPA will be shown to have subverted the core constitutional principle it is mandated to defend:  equality of all before the law.  

If powerful politicians are able to manipulate the instruments of our criminal justice system to protect themselves and persecute their opponents, South Africa is on a short-cut to becoming a criminal state, where no-one can rely on the protection of the law, and no President need fear accountability to the law.  

The DA has a mandate from over 4-million voters to prevent this and protect our constitution.  We will do that, in the interests both of those who voted for us and those who did not. 

So far, this case has already shown how far we have shrunk from the constitutional ideal.  

The NPA has, in fact, failed to implement two court orders, including one from the Supreme Court of Appeal, to hand over the "reduced record" including the "spy tapes".  They allowed Zuma's lawyers to interdict them in order to prevent compliance, on the grounds that the entire record was "privileged".  

Zuma's advocate has now conceded it is not.

But, actually, this was obvious from the beginning.  Just consider this simple timeline.

The "tapes" were allegedly recorded in telephone conversations between Ngcuka and McCarthy between 12 and 13 December 2007, when they apparently discussed the timing of re-instating the corruption charges against Jacob Zuma.

The ANC's Polokwane elective conference was held between 16 and 20 December, during which Zuma decisively defeated former President Thabo Mbeki in the election for the leadership of the ANC.

Advocate Mokotedi Mpshe, acting as National Director of Public Prosecutions, re-instituted the charges on 27 December 2007, long before he became aware of the telephone conversations between Ngcuka and McCarthy.

Given this sequence of events, it makes absolutely no sense for Mpshe to argue that the content of the telephone conversations influenced his decision (or the timing) to re-institute charges.  

Mpshe might, conceivably, have been able to make such a case if, for example, he had been persuaded to re-institute the charges BEFORE Polokwane  --  and if Zuma had been defeated in the leadership election as a result.  But they weren't and he wasn't, so Mpshe's stated reasons for dropping the charges make no sense.

And, after all, it was Mpshe himself who re-instituted the charges.  By subsequently stating that there was a "political motive" behind this, is he saying that he allowed himself to be politically influenced to charge Zuma?  That would be self-incrimination of breath-taking proportions. 

Mpshe has conceded that the charges had "substantive merit" and that he was unaware of the conversations between Ngcuka and McCarthy.  So how could he later claim that the content of these conversations had influenced his decision to re-institute charges?

I pity the script-writers who one day have to write a believable screenplay for this movie.

And we are only nearing the end of the beginning of this incredible saga.  The bulk of the drama still lies ahead.  Our review case could see some of the biggest actors in this episode taking the witness stand under oath to explain what really happened.

This case will be worth a chapter of its own when the history of the development of our democracy is written.  

And I have every confidence that this story will have the right ending:  securing a criminal justice system that is genuinely free and fair, and where all are equal before the law.

This article by Helen Zille first appeared in SA Today, the online newsletter of the leader of the Democratic Alliance.

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