Spy tapes: What you need to know

2017-09-14 09:59
President Jacob Zuma smiles during the African National Congress Youth League cadres' forum at uPhongolo. (Thuli Dlamini, Gallo Images, The Times, file)

President Jacob Zuma smiles during the African National Congress Youth League cadres' forum at uPhongolo. (Thuli Dlamini, Gallo Images, The Times, file)

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The controversial spy tapes case is back in court today after a decision was made in April 2016 by a full bench of the North Gauteng High Court that the National Prosecuting Authority’s (NPA) decision not to prosecute President Jacob Zuma on corruption charges was irrational.

The NPA and Zuma submitted applications for leave to appeal to the Supreme Court of Appeal (SCA) after the High Court denied them direct access to appeal. The SCA granted them access and their legal teams will be arguing in the highest court of appeal today, legal expert Ulrich Roux explains:

What is happening in court today and tomorrow?

Today Zuma and the NPA’s arguments are being heard and the matter will then roll over to tomorrow for the DA’s legal team to argue why the High Court judgement should not be overturned. The basis of Zuma’s argument is that the investigation into him is completely tainted and that the so-called spy tapes were improperly obtained by the former head of the Scorpions Leonard McCarthy. His legal team will therefore argue that there are no grounds to prosecute him as there’s no chance for a successful prosecution. 

What will the NPA and Zuma argue?

The NPA decided not to prosecute Zuma on corruption charges relating to fraud, racketeering and money laundering. Eight years later the High Court found that there’s no reason for the NPA not to proceed with the prosecution and that it is obliged to make use of the spy tapes. The NPA is relying on the separation of powers argument, and will argue that it cannot be prescribed who to prosecute. It’s an interesting argument because the High Court is there to ensure the best interest of society is adhered to and that if there’s merit to a case it must be prosecuted, but that must also be weighed up against the right of the NPA to be independent. The court always has to weigh up what is in the best interest of society. 

It’s also important to note that the SCA will only hear legal arguments and no evidence will be introduced. It is a full bench of five judges that will hear the case.

How likely is the SCA to overturn the ruling?

The High Court handed down a scathing judgement. They really criticised the NPA, saying that they’re convinced the decision not to prosecute is based purely on political reasons. They also refused Zuma the right to appeal, so they’re adamant that the NPA must proceed. However, the fact that the SCA did grant the NPA and Zuma leave to appeal suggests that there is a chance that the appeal could be successful. 

It’s difficult to speculate, but if you look at the greater picture and political environment, if a person is so adamant he’s not guilty, why not go and state it in court? It’s now eight years down the line, so much money has been spent on legal costs and if the SCA sets aside the High Court ruling we might be back to square one. If you’re innocent, just go prove to the court that you weren’t involved. 

What will it mean if Zuma and the NPA’s appeal is set aside?

If the appeal is set aside, then the NPA will be obliged to proceed with the prosecution of Zuma and make use of the spy tapes and all other available evidence. 

How long will it take before the prosecution then starts?

The investigation has been completed. The only decision that needed to be made was whether the spy tapes can be used or not. So there’s really no reason it should take a large amount of time if all evidence is available. It could take a few months for the SCA judgement to be handed down but after that the case should be able to go ahead immediately. 

What will it mean if Zuma and the NPA’s appeal succeeds?

Zuma will not be prosecuted. The NPA will say they cannot be forced to prosecute. They will also argue 'fruit of poisoned tree', which says that if evidence against a person is obtained in an improper manner, all related evidence is also tainted. The DA could still approach the Constitutional Court. The court has already said it’s unconstitutional for the NPA not to act. It will most likely be referred to the Concourt.

What are on the spy tapes?

The so-called spy tapes contain recorded conversations between Leonard McCarthy and former NPA boss Bulelani Ngcuka, providing evidence, according to the NPA, of collusion against Zuma between former NPA officials and former president Thabo Mbeki.

- Ulrich Roux is a director of BDK Attorneys and specialises in defence and commercial litigation.

Read more on:    jacob zuma  |  spy tapes  |  sca

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