What the Spy Tapes reveal

8 September

The Spy Tapes saga has now moved on to the obvious question: What do the tapes reveal? And what do the rest of the documents that constitute the "record of decision" contain?

Do they provide evidence that a political conspiracy lay behind the charges against Jacob Zuma on over 700 counts of corruption, money laundering, fraud and racketeering?

Do they reveal sufficient grounds for withdrawing the charges in 2009, so that Zuma could become President?

Or could they support the re-instatement of charges against the President?

I have read the transcripts of the tapes handed to us by the NPA last Thursday. They constitute recordings of 36 conversations over 5 months.

And while I believe that it would be in the public interest to release these records, the DA's legal team has advised that the "discovered documents", including the recordings, may only be revealed during the court proceedings for which they were required.

Anyone wishing to obtain this information before then, would have to approach the Supreme Court of Appeal, whose recent judgement finally gave us access to these records.

Without revealing the contents, I am satisfied that the "spy tapes" provide sufficient evidence to continue our review application of the decision, by the then acting National Director of Public Prosecutions, Mokotedi Mpshe, to withdraw the charges against President Zuma.

Some of the issues that are bound to be canvassed in this path-breaking case are the following:

1) Who, in the run-up to the ANC's highly contested Polokwane elective conference, ordered the surveillance of the National Director of Public Prosecutions (Bulelani Ngcuka), and the head of the Scorpions (Leonard McCarthy), and why?

2) Was due legal process followed in intercepting these conversations?

3) How did these recordings get into the hands of Jacob Zuma's legal team?

4) To what extent is it legitimate for an investigator and a prosecutor to discuss a joint strategy in the prosecution of a person against whom they have prima facie evidence of serious crimes? This is especially pertinent in the light of the fact that the Scorpions were established precisely to enable closer co-operation between investigators and prosecutors in the fight against corruption.

5) To what extent is it acceptable for state officials to try to prevent someone, against whom they have prima facie evidence of corruption, from becoming President?

6) To what extent could a discussion of the timing of the charges be considered prejudicial, if there was a prima facie criminal case for the accused to answer?

7) If some conversations reveal a desire to use "timing" to prevent Jacob Zuma from becoming the ANC leader in Polokwane in December 2007, and if this strategy failed, is the point still material?

Some of these questions would have been debated at length within the deeply divided National Prosecuting Authority, during 2008 and early in 2009, in the run-up to Advocate Mpshe's decision to withdraw the charges. The minutes and summaries of these discussions are contained in the documents that form the "record of decision", which I have not yet seen.

We will only have access to them after retired Judge Noel Hurt has reviewed them all, and removed those representations made by Jacob Zuma that are "privileged" for use in his defence.

Based on legal advice, we will then proceed with the application to review the withdrawal of the charges.

Whatever the outcome, it will be a precedent-setting case with profound consequences for our democracy.

What consequences does the DA want to achieve? Why are we prepared to persevere in this matter for as long as it takes, and whatever the cost?

Whatever the cynics may say, our primary motivation is not to defeat Jacob Zuma. It is not even to gain political advantage for the DA.

Our primary aim is to expose the extent to which cadre deployment has undermined our institutions of state, and to bring this undemocratic practice to an end.

Cadre deployment has "hollowed out" some of our State institutions to the point that they are no longer able to play the role envisaged in our constitution. The National Prosecuting Authority and our Intelligence agencies are a clear example of this.

Regardless of the way in which the review application proceeds -- and regardless of whether Zuma is re-charged or not -- this case will reveal the enormous damage done by cadre deployment, both under the Mbeki and the Zuma administrations.

This is, therefore, an opportune time to re-examine the concept of "cadre deployment" and understand its purpose.

The concept first gained currency beyond ANC circles when Nelson Mandela proclaimed 1997 as "the year of reaffirming the ANC cadre", and committed the organisation to "collectively re-dedicating ourselves to building an ANC cadreship in all spheres of life".

This was fleshed out by Joel Netshitenzhe, who at the time headed Mandela's Presidential policy unit, and later emerged as one of Thabo Mbeki's closest allies:

Writing in the ANC publication Umrabulo, Netshitenzhe defined cadre deployment as "transformation" through "extending the power of the ‘National Liberation Movement' over all levers of power: the army, the police, the bureaucracy, intelligence structures, the judiciary, parastatals, and agencies such as regulatory bodies, the public broadcaster, the central bank and so on".

But even this does not explain exactly what cadres are and why they are deployed.

"Cadre deployment" is Leninist jargon inherited from what Clem Sunter calls "dead white Russians" and used (incongruously) in the fight against colonialism.

The Concise Oxford dictionary describes cadres as "group[s] of activists in a communist or other revolutionary organisation", while the Collins version adds that they are "used for the purpose of military expansion". Similarly, the word "deployment" has a military connotation, meaning "causing troops to spread out".

In other words, cadre deployment is a strategy to spread out the ANC's troops until they capture all institutions of state, so that they serve the party's agenda, not the constitution's vision of equality before the law in an open and free society.

In a deeply divided organisation such as the ANC, cadre deployment rapidly degenerates into using state institutions to advance factional interests within the ruling party. The result is the mess we see in the National Prosecuting Authority and several other institutions, including the SABC.

This disintegration is what we are trying to reverse. That is why we are pursuing this case with all we have. Unless we succeed, our democracy will unravel. Cadre deployment to advance the interests of political parties, or their factions, inevitably leads to a failed state.

The reason that the ANC got away with cadre deployment for so long was that they successfully disguised "state capture" as "racial transformation". Anyone who opposed cadre deployment could, therefore, easily be dismissed as "racist".

But ironically, the EFF has helped to reverse this simplistic labelling. I was fascinated, at a recent seminar convened by the Independent Electoral Commission, to hear the EFF representative say: "We saw nothing wrong with cadre deployment when we were inside the ANC. Now we see how it is used against us and how it undermines our rights."

There is nothing like a stint in opposition to make one understand what the DA has been talking about all these years.

But cadre deployment is not the only way the ANC undermines the rule of law. Another is the way it drags out processes for many years, to protect its leaders.

Zuma's advocate, Kemp J Kemp, must have realised from the start of the saga that they had no legal case to prevent the DA from getting the tapes and the "record of decision". Yet he dragged the case out for five years before he finally admitted to the Supreme Court of Appeal that he had no case at all.

Advocate Kemp has often made the point, in defending Jacob Zuma, that Justice delayed is justice denied. Yet no-one has stalled the process with as much determination (nor made as much money out of it) as Zuma's legal team.

So, how do we think things will proceed from here? And will the filibuster continue?

Once the DA has received the NPA's "record of decision", we will then have ten court days to supplement our founding papers. This will take us to approximately the first week of October.

Thereafter the respondents - the NPA and President Zuma - have 30 court days to file their answering affidavits. That will take us to round about the middle of November.

The DA then has ten court days to reply, which means that all the court papers should be submitted by the end of November 2014.

The "heads of argument" must then be prepared and a date allocated in the North Gauteng High Court. If all the parties adhere to the rules of court, there is no reason why the matter can't be heard early in 2015. 

Judgement should then follow within a month or two. This should happen around April or May 2015.

If the High Court judgement goes to appeal, another year will be added to the timeline, giving us an outcome early in 2016.

But 2016 is also a local government election year. Will Zuma's team try to drag it out beyond then, or will they fear that, for the first time, a critical mass of voters will have seen through his "Stalingrad defence" and express their displeasure at the ballot box?

All the indications are there that the ANC increasingly views Jacob Zuma as a liability. But this is not enough. Will they also learn the real lesson underlying this saga: that cadre deployment must end and that South Africa's democracy cannot work unless we restore the independence and credibility of state institutions?

In the end, only the voters can teach politicians that lesson.

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

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