The unfolding of Spy Tapes saga does not bode well for Mr. Zuma

17 June 2015

Note to editors: The following remarks were made during a press conference by the Chairperson of the DA’s Federal Executive, James Selfe MP, and DA Shadow Minister of Justice, Adv Glynnis Breytenbach MP, on the progress regarding the charges against President Jacob Zuma in the Spy tapes saga.

President Jacob Zuma’s term in office began in 2009 and has been marred by scandal after scandal. His Cabinet has, similarly, been embroiled in innumerable scandals but chief of all these has been his brazen and belligerent avoidance of accountability which has contaminated every organ of state. None other has been more affected by this avoidance than the National Prosecuting Authority (NPA).

The DA has always maintained that the reasons advanced to drop the 700-odd charges against President Jacob Zuma were irrational and should therefore be set aside. The record of decision supplied to us by the NPA late last year including the so-called “Spy Tapes” substantiated our contention. 

The DA and its legal team have considered the contents of the record of decision and of the affidavits in this matter which have been used as motivation by the NPA and President Zuma’s legal counsel, Mr Michael Hulley, to drop the 783 charges of corruption against President Zuma.

These documents display that the then acting National Director of Public Prosecutions (NDPP), Mokotedi Mpshe, failed to diligently and impartially apply his mind to the reasoning behind the dropping of the charges against Mr Zuma.

It is our contention that the record of decision reveals that:

-  Mpshe did not make his decision based on an assessment that his earlier decision to institute criminal proceedings against the President was flawed;

-  He did not make his decision based on any new information; and

-  He did not make his decision based on any substantive content of the indictment containing the charges or on concerns about the prosecuting team.

Therefore, in the absence of any legitimate factual or legal reasons, the DA is led to believe that these charges were dropped for political purposes: a political solution needed to be found to drop charges against a person who was about to become President, and the Spy Tapes provided the convenient excuse.

Despite it being an absolute outrage that President Zuma had, for almost six years, used taxpayer’s money to bankroll his opposition to the release of the Spy Tapes, he will be held to account as the law and due process demand. 

Last month President Jacob Zuma, as the Third Respondent in the Spy Tapes matter, filed his opposing affidavit in the DA’s review application into the dropping of the 783 counts of corruption and fraud levelled against him.

Mr Zuma and his legal counsel, in their opposing affidavit, rely primarily on conjecture, speculation and uncorroborated hearsay regarding every scandal and failing involving the NPA at the time. Mr Zuma’s opposing affidavit presents evidence with no clear intent other than to persist in the NPA’s narrative- in its affidavit- that the prosecuting authority at the time was generally manipulated by senior office holders to undermine Mr Zuma’s bid to be ANC president. Both are based on the contention that a conspiracy existed against Jacob Zuma. 

The President’s affidavit does not, at any point, meaningfully address this central issue but rather argues that the prosecution was discontinued because Mr Zuma made representations in 2009 that spoke to the heart of the case against him and warranted the subsequent dropping of the charges.

The President’s affidavit is completely misleading given that Mr Mpshe, on 6 April 2009, announced that he was to decide on the case based on allegations of a conspiracy to unfairly prosecute Mr Zuma and would make a determination on that basis. To suggest that this decision was based on other reasons ex post facto is in itself manifestly irrational.

President Zuma, no doubt on the advice of Mr Hulley, is trying to run two defences for the price of one.

The affidavit fails to answer the central question which is: if there was a conspiracy, why could a competent judge not determine that this justified a permanent stay of prosecution, rather than the then acting NDPP, Mpshe, taking the decision to discontinue on the basis that Mr Zuma was being maliciously prosecuted.

As such, the DA, in response to President’s affidavit, is still concerned with:

-  The rationality of the challenged decision, measured against the reasons for that decision; and

-  The legality of the impugned decision. 

The DA in its heads of argument maintains that this decision is not based on any matter in law but rather is fraught with political reasons. This is corroborated by the recently filed confirmatory affidavit by the then head of the prosecuting team, Advocate Billy Downer.

This affidavit vindicates the DA’s long-held position that the decision to drop the charges against Mr Zuma was indeed distinctly irrational and that it was not based in any cogent logic or law.

In so doing Adv Downer’s affidavit severely undercuts the NPA and Mr Zuma’s affidavits when it was effectively intended to support the claims made by the NPA and Mr Hulley in their respective papers. It means that Mpshe made this decision despite good legal advice that the case against Mr Zuma was, and still is, solid and ripe for due prosecution.

Our reading of Adv Downer’s affidavit astonishingly confirms that “on 6 December 2007 [Mokotedi] Mpshe telephoned me and told me that although he was satisfied with the draft indictment, he had decided to delay the prosecution until the following year because he did not want the [National Prosecuting Authority] NPA to be seen to be responsible for Zuma failing to be elected as ANC President at Polokwane.”

Adv Downer goes on to state that “that the prosecution team recognised that any decision to delay the prosecution for reasons unconnected to the prosecution was improper and…that  [Willie] Hofmeyer had heard that the decision not to prosecute Zuma was part of a political deal to protect Zuma against prosecution…”.

This is a clear indication that the decision to drop the charges was politically motivated and had no rational basis in law.

Mr Mpshe claims to have made the decision to drop the prosecution based on representations made by President Zuma in 2009. However, the Downer affidavit asserts that “the Zuma prosecution team remained convinced that the Zuma’s representations for the prosecution to be discontinued should have been declined.” 

If Adv Downer’s claims are to be believed it confirms everything that the DA has long contended. 

Additionally, the finality of this matter relies, in part, on an independent NDPP in pursuance of justice which is why the departure of Mxolisi Nxasana as NDPP is extremely disappointing. He brought much-needed stability and direction to an NPA that has been largely leaderless for some years now.

Of course this suits the President.  The last thing he wants is a strong, independent NDPP in the position when decisions have to be made, in the near future, regarding whether or not he should be prosecuted. It would serve President Zuma’s ends to have someone who is pliable to be in charge of such an important decision.

Nxasana’s engineered departure notwithstanding, the DA will move forward in its endeavour to seek justice and will approach the Deputy Judge President later this month for an expedited date by which to consider all the relevant documentation in this matter and come to a determination of whether or not the decision to drop the charges against Mr Zuma was indeed based on spurious and politically motivated reasons.

It has always been our belief that the President may indeed not be guilty of corruption but must, like any other citizen, have his day in court. This notion is critical to our justice system and the President, as one of the custodians of our democracy, should give meaning to this principle. 

Instead he has, through various directors of public prosecutions, used taxpayers money to bankroll the disappearance of these Spy Tapes which his legal counsel has conceded contain nothing that warranted the dropping of the almost 800 charges of corruption lodged against him.

President Zuma has clearly reached a point where he believes that he is so far above the law that he can meddle where and when he feels, without consequence.

Statement issued by James Selfe MP, Chairperson of the DA’s Federal Executive, June 17 2015