Spy tapes - When everything depends on nothing

2014-09-07 15:00

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It was 2007. Just a month until Christmas, schools were closing in a few days and many people were making their final holiday arrangements.

But Bulelani Ngcuka, then head of the National Prosecuting Authority (NPA), and Leonard McCarthy, head of the Scorpions, were in hell. No rest for them that November.

“No, this Friday. The team says we are f***ing around with the thing and are letting hidden considerations come into it.

“It will be impossible later – we must take action ‘finish and klaar’ as Jackie Selebi says, but I’ll talk to you when I see you,” said McCarthy in a portion of the infamous spytapes that were released to DA leader Helen Zille on Thursday.

If Ngcuka and McCarthy had only listened to the team investigating charges of corruption and money laundering against Jacob Zuma.

Less than two years later, Zuma’s prosecutor Billy Downer’s warning about hidden considerations had come true.

Especially those conversations between Ngcuka and McCarthy. They came to form the basis of arguments by Mokotedi Mpshe, who succeeded Ngcuka as NPA head, that the charges against Zuma be dropped.

The DA this week won a five-year legal battle, and will now fight another one – to have Mpshe’s decision set aside.

On Thursday, Zille waved a memory stick containing a full set of the tapes above her head outside the North Gauteng High Court.

But what does the party hope to find on the tapes? The answer is simple: nothing.

When, in 2009, Mpshe announced the Zuma decision – which he later called the “most difficult decision of my life” – he revealed only selected parts of the tapes.

Mpshe said these showed there was a conspiracy against Zuma. He said the timing of charges against Zuma by Ngcuka and McCarthy had been manipulated.

“Any timing of a charge against an accused that does not serve a lawful purpose is improper, irregular and a violation of the process,” Mpshe said.

But was this really the case?

The tapes make it clear that Ngcuka and McCarthy were wooing Mbeki. McCarthy said in one conversation after Mbeki was defeated at Polokwane: “My wife told me I looked as if my mother had died.”

In another call, this time to Mbeki, McCarthy sounded deeply moved when he said: “You will always be my president.”

And there were conversations between McCarthy and Ngcuka about when Zuma should be charged.

One would expect him to have been charged before Polokwane – if they wanted to discredit Zuma. But the tapes make it clear there was never any clarity about the decision.

In 2009, Mpshe’s placement of the conversations about the timing – and those in which McCarthy and Ngcuka spoke about their feelings for Mbeki – next to each other. This made the recordings appear shocking.

But now the DA’s tapes become important. It’s all about context.

Imagine Ngcuka and McCarthy had hundreds of different conversations between the ones about when to charge Zuma and the ones about Mbeki.

If this were so, the statement that there was a conspiracy against Zuma starts to appear less convincing.

This is why it is important for the DA that there is nothing on the tapes. The more conversations there are about timing and Mbeki, the weaker the DA’s argument – that Mpshe’s decision was unreasonable – seems.

So will happen next?

Judge Noel Hurt will be going through internal NPA documents to determine whether they, too, should be handed over.

This documentation does not have as catchy a name as the spytapes, but it is far more important.

As far back as the 2007 conversation between McCarthy and Ngcuka, the message from the prosecutors and investigating officers that Zuma should be charged was consistent.

There is no evidence that this message ever changed, and if their advice to Mpshe was the same, the basis for his decision looks even worse.

If everything falls into place for the DA, Zuma may be in trouble – but probably only after a wagonload of court applications. And if a court sets Mpshe’s decision aside, the NPA will again have to decide about charging Zuma.

But the NPA has been weakening for a long time.

This is because the practice of appointing “My President” types in key positions did not come to an end after Mbeki.

His successor continued in the same vein.

Because of this, the prosecution authority has lost its best and most experienced talent.

It remains to be seen whether there will be anyone – if that day ever comes – who will be brave enough to say: “Charge him, and charge him now.”

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