DA's spy tape case 'desperate' – Zuma's lawyer

Pretoria  President Jacob Zuma's advocate has described the Democratic Alliance's attempt to overturn the decision not to prosecute him on corruption charges as going nowhere, stillborn and desperate.

Kemp J Kemp SC, for Zuma, argued that the National Prosecuting Authority's (NPA) version of how former acting national director of public prosecutions (NDPP), Mokotedi Mpshe, came to his decision in 2009 was not irrational and was never disproved by the DA.

He said the DA's case started out as an administrative challenge, but the party realised this argument was fundamentally flawed and was now taking "a last desperate position" that the decision was irrational.

The decision was partially based on the contents of taped conversations (the so-called 'spy tapes') between Leonard McCarthy, then head of the Directorate Special Operations (the Scorpions), and former national prosecutions head, Bulelani Ngcuka, about whether to serve the indictment on Zuma before or after the ANC's Polokwane elective conference.

Influence choice of president

Zuma eventually beat former president Thabo Mbeki to become president of the ANC and was sworn in as president in May 2009, shortly after the charges against him were dropped.

Zuma maintained McCarthy had used his position to influence the prosecution in order to favour Thabo Mbeki and so influence the choice of the country's president.

Kemp dismissed the DA's argument that Mpshe had not considered the strength of the case against Zuma as simply not correct.

"... His team tells him the merits are strong. How can anyone suggest he did not have that in mind?" he said.

Kemp argued the court should look at the context of Mpshe's decision against the background of the very serious allegation of political interference in the prosecution and McCarthy's role in initiating the secret 'Browse Mole' investigation.

The top secret report, that was later leaked to the media, implicated Zuma in a supposed plot to overthrow the government and led to a recommendation that McCarthy, who ignored orders to stop the unlawful investigation, should be acted against.

McCarthy left the DSO in mid 2008 to take up to take up the position as head of integrity at the World Bank.

Not swept under carpet

Kemp said deputy NDPP, Willie Hofmeyer, and Billy Downer, the senior prosecutor who led the Zuma prosecuting team, had both confirmed McCarthy's interference in the prosecution, which was not something that could be swept under the carpet.

"... It is an enormous affront to the criminal justice system... to civil society and the people's structures of governance. The choice of a president is of great importance in how to govern this country.

"In this case what you see is the NPA, with its enormous powers to indict people and to prosecute people and use its powers in the criminal justice system, ... blatantly using these powers... to try and influence the outcome of the presidential elections."

He said this was "enormously serious".

"It is not whether there is a delay of seven days in the issuing of charges. That's not what this is about. This is about what powers were used in that way to try and inflict a very significant event upon the people of this country," Kemp said.

"The fact that it didn't work out in this case matters not.

"That's not what this case is about. It is not what Mpshe's decision was about. His decision was about the enormity of what they were trying to achieve," Kemp said.

To a question from Judge Aubrey Ledwaba if there was any indication that the service of the charge sheet had anything to do with the election, Kemp said as he understood it, the whole point of delaying the charge sheet was to improve the prospects of Zuma not being elected as head of the ANC.

Kemp said Mpshe's decision should be lauded as he was sending a message that the NPA could not prosecute a person where officials in high levels of the NPA used their powers to engineer political results.

Sending a message

"There is no effort by the DA to understand that Mpshe is sending a message also to political parties and members of the NPA.

"You may say it's an overreaction and he should have chosen a different path, but that happened in this case.You may not like it, but you cannot say that his reaction is irrational," Kemp submitted.

He stressed that even if the court set aside Mpshe's decision, it did not mean that the charges against Zuma could be reinstated, because that's not what the DA asked for.

Zehir Omar, for the Society for the Protection of our Constitution, argued that the court did not have the jurisdiction to review a decision by the national director of public prosecutions.

He said what the DA was trying to do was to emasculate the sanctity of the law and the Constitution. "The NPA must remain firmly independent... It's shocking what the DA wants this court to do.

"Their aim is to govern the country through the courts. That cannot happen. The time has come for us to say loud an clear to the DA to stop it," Omar submitted.

The application will continue on Thursday.

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