Spy tapes: DA optimistic that justice will prevail in the end

03 March 2016

The DA is very satisfied with the three day hearing of the Spy Tapes matter. A number of key issues were traversed, particularly the concept of abuse of purpose.

Judgment was reserved in the DA's application in the Gauteng North High Court to have the decision to discontinue the prosecution against President Jacob Zuma reviewed and set aside. We contend that the decision taken by the then acting National Director of Public Prosecutions (NDPP), Mokotedi Mpshe, was irrational, unreasonable and made with an ulterior political motive.

President Zuma’s counsel argued that Leonard McCarthy and Bulelani Ngucka attempted to time the service of the indictment on President Zuma was suspicious. However, even if McCarthy and Ngcuka wanted to achieve a particular result at Polokwane, they clearly failed spectacularly and, ultimately, nothing turned on this attempt. Indeed, it was common cause, that, although such attempts at timing service may have been lamentable, and MCarthy and Ngucka’s motives suspect, it did not affect the strength of the prosecution’s case against the President. 

As such, discontinuing the prosecution was a disproportionate response to this potential irregularity, given the fact that it had no real effect on the prosecution’s case and clearly there was no prejudice to President Zuma’s right to a fair trial. Accordingly, even if there was in fact an ulterior purpose, the NDPP’s decision not to prosecute President Zuma was based on an irrational overestimation of any potential threat to the President’s right to fair trail, and did not adequately take into account the public’s interest in seeing justice done, the Rule of Law upheld and corrupt dealt with.

We expect the decision of the Gauteng North High Court in about six weeks. Whoever loses this round is bound to appeal to the SCA and doubtless, in due course, to the Constitutional Court. It has taken seven years to get to this point in the litigation, and the finalisation of any appeals process will no doubt take a few years more thereafter. But ultimately the time and the cost is necessary to remind the President, the NPA and South Africa as a whole, that every decision to prosecute or not to prosecute must be made without fear or favour, and that even number one is not above the law.

Statement issued by James Selfe MP, Chairperson of the DA's Federal Executive, 3 March 2016