Judge slams Zuma’s defence

2013-08-18 14:00

With president’s lawyers under fire, NPA gets ultimatum to hand over electronic version of ‘spy tapes’

A judge has for the first time commented on former acting prosecutions chief Mokotedi Mpshe’s controversial decision to drop charges against President Jacob Zuma.

And Judge Rammaka Mathopo of the North Gauteng High Court didn’t mince his words as he lambasted Zuma’s lawyers for not properly arguing why the ­ so-called “spy tapes” should be kept confidential.

In a strongly-worded judgment on Friday, Mathopo gave the National Prosecuting Authority (NPA) five days to hand over an electronic version of the tapes and transcripts thereof.

These tapes were used by Mpshe to justify his decision to let Zuma off the hook in 2009, of which only selected excerpts were made available to the media.

Mathopo ruled that he “failed to understand (Zuma’s) assertion that the disclosure of the transcripts would affect his right to confidentiality or privilege”.

He further said: “It has not been contended by any of the parties that Mpshe referred to anything more than a discussion by certain officials of the NPA on the question whether the charges would be brought before the African National Congress Polokwane conference.

“The excerpts of the transcripts which formed part of the record and which Mpshe extensively referred to in his address (to the media) specifically related to the timing of the charges.

“I fail to see how the discussion on the timing of charges would impact on the integrity of the charges (against Zuma).”

This is the first time a judge has commented on Mpshe’s decision.

Zuma’s advocate, Kemp J Kemp, had argued that the “spy tapes” were part of the confidential representations Zuma made to the NPA.

This argument was based on the fact that it was Zuma’s lawyer, Michael Hulley, who came to the NPA with the tapes.

The tapes were intercepted telephone conversations between former NPA head Bulelani Ngcuka and former Scorpions boss Leonard McCarthy, which Mpshe suggested were evidence of political interference in the timing of corruption charges against Zuma.

In his statement issued at the time, Mpshe said the discussions constituted an “intolerable abuse ... which compels a discontinuation of the prosecution”.

Kemp argued that it was irrelevant that the NPA had obtained its own copies of the tapes from the National Intelligence Agency.

But Mathopo did not buy this argument on Friday.

“Mpshe together with his team, rightly or wrongly, came to the conclusion that the integrity of the prosecution was compromised and the charges on the basis of what he regarded as an abuse of the process by certain officials.

“It is desirable that the transcripts be produced to test and properly contextualise whether the decision of Mpshe was based on rational grounds or not,” the judge said.

Mathopo also ruled that internal NPA documentation – including a memorandum by chief prosecutor Billy Downer on why Zuma should be prosecuted – must be made available to the DA’s lawyers on a confidential basis.

If they disagree over whether any of these documents form

part of Zuma’s confidential representations, they will be allowed to contest this before a judge in chambers.

City Press understands that this evidence could be key to showing that Mpshe’s decision was not rational.

James Selfe, the chairperson of the DA’s federal executive, yesterday said the party was “very relieved and very excited”.

He further said: “It’s been a very long battle and they have put up incredible hurdles at every point ... Now we can hopefully get down to the business of finding out if this was a valid legal decision or one of absolute political expediency.”

Presidency spokesperson Mac Maharaj did not respond to a request for comment.

Bulelwa Makeke, the NPA’s spokesperson, said no decision whether to appeal the judgment had been made yet.

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