Pursuit of Zuma does not trump NPA independence, court hears

2016-03-02 18:30
President Jacob Zuma.

President Jacob Zuma.

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Pretoria – The court could not allow the pursuit of one individual, President Jacob Zuma, to trump the independence of the National Prosecuting Authority (NPA), the High Court in Pretoria heard on Wednesday.

The NPA's senior advocate, Hilton Epstein, argued that former acting national director of public prosecutions (NDPP) Mokotedi Mpshe had exercised the discretion given to him by the Constitution and the NPA Act when he decided to drop corruption charges against Zuma in 2009. The court could only interfere in exceptional circumstances, he said.

The DA has asked the court to set aside Mpshe's decision to drop corruption charges against Zuma, but the NPA has defended the decision.

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 NDPP Bulelani Ngcuka about whether to serve an indictment on Zuma before or after the ANC's Polokwane conference.

Zuma eventually beat 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 in April that year.

Contempt for the law

Epstein said South Africa was a young democracy and it was important that the state led by example. "If government becomes the law breaker it breeds contempt for the law," he said.

He argued that even if Mpshe's decision might have been unreasonable, this did not make it irrational. "Maybe the majority of people would not have taken the decision, but it was his discretion.

"... Unless there is an application that he was mala fide [acting in bad faith] or did not apply his mind, the decision stands," he said.

Epstein said it was clear that McCarthy was in charge of the whole prosecution and had approached individuals to delay the prosecution, and had manipulated the prosecutorial process in order to favour Mbeki.

"... McCarthy was pursuing his own political agenda and using the NPA as an instrument to achieve his agenda," he said.

Browse Mole Report

Epstein argued that McCarthy was also the man behind the "Browse Mole Report" (which implicated Zuma in an alleged plot to overthrow the government), the sole purpose of which was to gather dirt on Zuma.

A special intelligence report later recommended action should be taken against McCarthy.

"McCarthy was not some maverick outsider to the NPA. He was for all purposes the NPA," Epstein said.

Epstein argued that the contents of the "spy tapes" were so shocking that lead prosecutor at the time, Billy Downer, was reduced to tears and that Mpshe had been filled with a sense of betrayal.

Judges Aubrey Ledwaba, Cynthia Pretorius and Billy Mothle grilled Epstein about the timing of Mpshe's decision and why it was specifically taken on April 1 and not earlier, when he was briefed about the contents of the tapes.

Epstein said, although Mpshe was briefed about the tapes, they might have taken on a different meaning and he realised the extent of what was going on behind the scenes when he listened to them himself.

"It was only not only Mpshe who was shocked when he listened to tapes. It was also Downer... He says he was reduced to tears," Epstein argued.

The application continues.

Read more on:    npa  |  jacob zuma  |  zuma spy tapes

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