Zuma: After 13 years, Downer is vindicated

2016-04-30 09:58
Advocate Billy Downer, the head of the prosecuting team in the fraud and corruption case against Schabir Shaik, in 2005 after Shaik was found guilty. (Gallo Images)

Advocate Billy Downer, the head of the prosecuting team in the fraud and corruption case against Schabir Shaik, in 2005 after Shaik was found guilty. (Gallo Images)

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Sitting in his Cape Town city bowl office on Friday, working through murder, rape and drug-dealing dockets, lifetime prosecutor Billy Downer probably spared a thought for “The Bull” as Judge Aubrey Ledwaba delivered his painful blow to the dwindling political career of President Jacob Gedleyihlekisa Zuma.

Because it was “The Bull”, as Bulelani Ngcuka was fondly referred to by his former colleagues at the National Prosecuting Authority (NPA), who committed the original sin in 2003 by announcing the NPA had a prima facie but “not winnable” case against Zuma.

‘Mr Zuma should face the charges as outlined in the indictment.’
-    Judge Aubrey Ledwaba on behalf of a full bench, North Gauteng High Court, 29 April 2016

‘With hindsight, Mr Ngcuka might wish that he had followed our advice.’
-    Advocate Billy Downer, Middle Temple conference, Cape Town, 24 September 2010

In his no-holds-barred address to a group of international advocates in 2010, Downer hit out at three consecutive National Directors of Public Prosecutions for ignoring the advice of lead prosecutors in the Zuma case: Ngcuka, Vusi Pikoli and Mokotedi “Cocky” Mpshe.

Thirteen years later, Downer was finally vindicated by Ledwaba and his colleagues on Friday when they ruled that Zuma had a case to answer. Ledwaba quoted extensively from Downer’s memorandums to Mpshe, desperately urging him not to drop the charges after the so-called spy tapes came to light.

Ledwaba admonished Mpshe for ignoring Downer’s advice. And Downer was not alone: His view – that a court of law and not Mpshe should have decided whether the Zuma case was fatally tainted by the existence of the spy tapes – was supported by two senior counsel employed by the NPA: Wim Trengove and Andrew Breitenbach.

To be fair to Mpshe, he wasn’t alone either. His final decision was greatly supported by long-time deputy prosecutions boss, Willie Hofmeyr, who was personally affronted by what he heard on the spy tapes: his old colleagues Ngcuka and former Scorpions boss Leonard McCarthy speculating on the timing of Zuma’s charges to benefit former president Thabo Mbeki at the ANC’s Polokwane conference.

READ: Former NPA head Mpshe 'respects' Zuma ruling

Ledwaba had harsh words for these feelings of anger and betrayal. “It is the view of this court that his [Mpshe’s] feelings of anger and betrayal caused him to act impulsively and irrationally, considering the factors as stated in the preceding paragraphs. He did not allow himself time to consider the question whether the very decision he was about to take, could be regarded by other people facing similar charges throughout South Africa, as a breach of the principles of equality before the law or that it would be an abuse of process to discontinue charges against people of high profile or standing in the community.”
The Mail & Guardian reported at the time that Hofmeyr had meetings with Moe Shaik, brother of Schabir and former Zuma confidante, to discuss a “political solution” for the case against Zuma. I don’t believe that Mpshe and Hofmeyr made a purely political decision when they withdrew the charges against Zuma, but their feelings of anger toward Ngcuka and McCarthy blinded their view to take an objective and fair decision, based only on cold facts.

Yes, they were under tremendous political pressure. The post-Polokwane ANC set-up a “brains trust” headed by Lindiwe Sisulu to devise a strategy that would get Zuma off the hook. Sisulu was assisted by political commentator Sipho Seepe, former judge Willem Heath and Paul Ngobeni, a former UCT employee and legal adviser to Sisulu.

This pressure made them “ignore the importance of the oath of office” which demanded them to act “independently and without fear or favour”, Ledwaba found. In other words: Mpshe and Hofmeyr simply had to be stronger and rise above their emotional feelings of anger toward Ngcuka and McCarthy.

Their irrational decision gave us Zuma as state president, possibly until 2019.

But they should not be the only ones losing sleep over Ledwaba’s bombshell judgment (or Zuma’s scandal-ridden presidency). Because as Downer had pointed out correctly, it was Ngcuka who made the original decision not to charge Zuma with Shaik. If he had done so, Zuma would have been convicted or acquitted by Judge Hilary Squires in 2005 and the country would have moved on.

So why did Ngcuka commit the original sin?

In his affidavit before court in the spy tapes matter, Zuma’s attorney Michael Hulley revealed that his client was offered a R20m pay-out by Mbeki and former justice minister Penuell Maduna if he agreed to quit politics and walk away quietly.

“They (Mbeki and Maduna) indicated that there was a formidable case against him in the NPA files. There was very substantial documentation with them. Unbeknown to them, Ngcuka had told Zuma that there was nothing in the case against him. Zuma said as much to Mbeki and Maduna and refused to resign.”

There is enough evidence in the public domain to conclude that Ngcuka’s was a political decision and not one made “without fear or favour”.

It was Mbeki’s trump card to neutralise Zuma politically. Zuma refused the offer. Mbeki fired him after the Shaik judgment and appointed Ngcuka’s wife Phumzile in his place. The strategy boomeranged spectacularly.

I don’t know if Zuma will ever face the corruption charges crafted by Downer and his team after years of investigation. Zuma’s term may be over once the appeals have been exhausted, and the DA’s impetus to go after a former president may not be that strong.

But the major learning from Ledwaba’s judgment is momentous and will outlive the dramatis personae: That politics has no place whatsoever in the functioning of an independent prosecuting authority.

Read more on:    jacob zuma  |  corruption

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