Those pesky spy tapes

2012-11-10 12:59

In Zuma Exposed, Adriaan Basson shares the political secrets that Jacob Zuma would rather you didn’t know

The thing about spy tapes is that they don’t actually start on one day and end on another.

I’ve accepted the fact that continuous illegal surveillance of telephone conversations is now common practice in South Africa.

Rogue intelligence agents run amok, feeding false numbers into the government’s interception systems and every second private intelligence operative has the necessary equipment, freely available over the internet, to bug your and my phone conversations.

The fact that the government agencies responsible for intelligence gathering are not doing anything about this state of affairs can only mean they are part and parcel of the problem.

So, when Advocate Mokotedi Mpshe stood in front of the nation on April 6 2009 to announce that a set of spy tapes had landed on his desk, he wasn’t talking about a complete set of interceptions, but about a series of conversations that had been carefully selected by someone to influence the outcome of the Zuma case.

It’s safe to assume that (former Scorpions boss Leonard) McCarthy’s phone was bugged for a much longer period than from November 4 2007 to April 7 2008, the five-month period covered by the spy tapes released by Mpshe.

The two weeks preceding Mpshe’s announcement were marked by intense debate inside the NPA (National Prosecuting Authority) about the impact the spy tapes would have on Zuma’s case. It was clear that the contents of the tapes would be leaked if the NPA didn’t manage the process itself.

After months of intellectual debate about a political or legal solution to see Zuma ascend to the throne, the matter came down to this: a set of telephone recordings, possibly obtained illegally. The team of prosecutors and investigators on the Zuma case, led by Advocate Billy Downer, vehemently argued for the prosecution to continue and for a court of law to decide whether the spy tapes fatally infected the prosecution.


On the morning of April 6 2009, Mpshe called a meeting of his deputies – Willie Hofmeyr, Silas Ramaite and Sibongile Mzinyathi, who was acting in Mpshe’s place – and Downer and his team to announce his final decision to them first.

Mpshe told them he would be withdrawing the charges against Zuma because of the damage that had been done to the case by the spy tapes. Hofmeyr, one of the two officials who had listened to the tapes, was the biggest supporter of Mpshe’s decision.

Ironically, Mzinyathi, the other prosecutor who had to listen to the recordings, differed strongly from the decision
to let Zuma off the hook and supported the argument that it was not for the NPA to make this decision, but for a court.

The NPA’s main auditorium was packed as television cameramen set up their equipment for a mid-morning live broadcast of Mpshe’s announcement.

Journalists filled the room and anxious prosecutors looked on as Mpshe – followed by his deputies, and Downer and his team – entered the room and stepped on to the small stage. Their faces were grim, the atmosphere funereal. Mpshe took the microphone.

He carefully set out the legal grounds that were addressed by Zuma’s lawyers in their representations to the NPA: “I need to state upfront that we could not find anything with regard to the first three grounds that militate against a continuation of the prosecution, and I therefore do not intend to deal in depth with those grounds.”

In other words: there were no problems with the merits, fairness or practical implications of Zuma’s case. But NPA policy might have been broken, thus “militating against prosecution”.

Mpshe explained how the tapes fitted into Zuma’s representations. “In the course of the representations, the defence made certain very serious allegations about alleged manipulation of the NPA and indicated that these were substantiated by recordings of certain telephone conversations which it intended handing into court during the intended application for a permanent
stay of prosecution.

“The NPA decided that it would listen to these recordings because it felt that the allegations were serious enough to impact on the NPA’s decision if they were true. It felt it should do so despite the fact that it was not clear whether the recordings had been intercepted legally or were legally in the possession of the defence.”

This was a significant admission for a lawyer to make: he didn’t know whether the material he was about to rely on to drop Zuma’s charges were the fruits of a poisoned tree.

“Although the recordings sounded authentic”, Mpshe said the NPA approached the relevant authorities to find out if they had legally obtained the same recordings.

The NIA (National Intelligence Agency) indicated that it was able to share these legally with the NPA for the purposes of the investigation and for reaching a decision in this matter.

Mpshe further requested the inspector-general of intelligence to “formally investigate any possible illegality surrounding the recordings that were presented to it”.

The outcome of such a probe, if any, has never been communicated to the South African public.

» The book will be launched on Monday November 19 at 6.30pm at Exclusive Books Hyde Park, Joburg

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