Three spy tape scenarios

2014-09-05 00:00

CAN the president be prosecuted? This is the question the DA’s legal team must find and answer to by studying the so-called spy tapes, which they received yesterday.

The tapes formed the basis of a decision by the National Prosecution Authority (NPA) to drop charges of corruption and money laundering against President Jacob Zuma in 2009. The legal question the DA’s team have to answer is whether the former head of the NPA, Mokotedi Mpshe, made a reasonable decision in dropping all charges against Zuma.

The tapes mainly contain talks between advocate Leonard McCarthy, former chief of the Scorpions, and the former NPA boss Bulelani Ngcuka, over the timing of Zuma’s court case with relation to the ANC’s Polokwane conference. Both McCarthy and Ngcuka were Mbeki supporters and may have conspired how to aid Mbeki by prosecuting Zuma before or after Polokwane. The DA faces two scenarios.

For Zuma to be incriminated by the spy tapes, the recording must contain nothing to support Mpshe’s assertion that there was a conspiracy to manipulate the timing of Zuma’s prosecution for political gain.

An experienced advocate, who has seen transcripts of the tapes, told sister paper Beeld the discussion between Ngcuka and McCarthy was only normal discussion about strategy. The talks contained no reason to drop the charges, said the advocate, and even if this could be construed, a judge should have had to take the decision to drop the charges, not Mpshe.

Executive secretary of the Council for the Advancement of the South African Constitution, Lawson Naidoo, said a court may yet order that the charges against ­Zuma be reinstated. He said judge Noel Hurt must still peruse more evidence, including the NPA’s internal documents, on the Zuma case, before handing it to the DA.

Another factor to be considered is that Mpshe plagiarised a foreign judge’s ruling to writing his legal opinion on Zuma’s prosecution.

Constitutional expert Professor Marinus Wiechers said the DA could prosecute Zuma privately if the NPA refused for a second time to prosecute Zuma.

The DA’s team may find that the tapes support Mpshe’s assertion and the NPA and Scorpions bosses were conspiring against Zuma to give former president Thabo Mbeki an advantage during the power struggle in the ANC that preceded the Polokwane conference.

Naidoo said it will all come back to the charges against Zuma’s former financial adviser Schabir Shaik, on whose guilt the charges against Zuma were based.

Naidoo said there will have to be a very good reason to show that it would not be in the public interest to prosecute Zuma.

For such a scenario, Naidoo said the tapes would have to be “explosive”.

It also is possible that the tapes contain nothing to incriminate Zuma, but that the president’s lawyers simply fought their release to prevent the courts from pronouncing on whether he should be charged again. As things stand, Zuma’s team have succeeded in delaying for five years.

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