Lessons from the Spy Tapes: The DA Victory

2014-09-05 10:50

Five years and six court cases on, the infamous spy tapes and the record that was used by Advocate Mokotedi Mpshe to drop charges against Jacob Zuma have finally been released to the Democratic Alliance and perhaps by extension to the public. These are probably the most expensive tapes in the country, given the money that was pumped in towards their release. We can only hope that they are not one big mix tape with weak content and feint beats that will turn Mpshe’s April 2009 decision into one big joke.

While the constitution allows that all are equal before the law, giving provision for a seating president to have criminal charges brought against him/her, we have never seen it happen in reality. Once the theory is put to test, we would rightly be anxious as we have no idea how such an act of charging a seating president – a specially the current one with an identifiable personality cult practice – would affect the functioning of the state. His occupancy of the presidential seat has adversely affected the functioning of the state in deplorable ways.

Indeed the release of these spy tapes marks a watershed moment. Even the legality of the tapes should be tested, which may open a can of worms on the dubious and shaddy phone tapping and bugging that goes on in the country, in an attempt to amass dirty laundry on as many influential people as possible. The condemnation of unlawful interception of calls and other communication does not mean we condone the cunning and plotting, unlawful misuse of power done by those in positions of authority to manipulate the levers of the criminal justice system to be part of the bigger political landscape. This politicizes the entire functioning of the law and compromises its independence in the end.

However, political interference (unlike framing someone of a crime not committed) on charges that exist does not necessarily mean the accused is innocent or guilty – that remains necessary to test in a credible court of law. Such is the complexity of the matter that the Democratic Alliance is engaged in. The meaning of the tapes extends beyond just an attempt to review the decision taken by Mokotedi Mpshe – the meaning is embedded in the interplay between politics and the NPA that has emerged in the last couple of years.

The release of these tapes also indicates to us that our constitutional democracy has elements of success; however, the wheels of justice are painstakingly slow and frustrating. The success of this constitutional democracy will depend on our patience for systems and processes, knowing that no short cuts can be afforded, simply because a matter involves high profile names. However, diligence must be given to the growing phenomenon that sees people with money and power being able to utilise resources attributed to their status to be fugitives from facing the music of accusations brought against them.

Therefore, whilst we hail the DA for its patience with the litigation exercise, we are again reminded that only those with deep pockets to engage in litigation with expensive advocates can truly access the beautiful provisions of the constitution. Again, the inequalities embedded in our society are brought back, for us to contemplate meaningful ways to expand the ability of sound and quality access to justice for the majority of the people.

Importantly, this DA victory ensures that the President and ruling party will in future be mindful that – even if a comradely aligned NPA National Director of Public Prosecutions (NDPP) were appointed – the decisions of the NDPP are not final, they are subject to review. Therefore, politicising the position in a country whereby there are people committed to the rule of law would only prove a short term victory as the wheels of justice will always turn the right way – unless they tamper with the judiciary


In this five-year process, we have also seen that South Africa continues to have a sternly independently working judiciary that is unafraid to take decisions that even have potential to see a seating president being re-charged on the counts of corruption, money laundering, racketeering etc. Were it in Swaziland, such may not have taken place given how the judiciary functions as a protector of the King and his current regime. Even in a country such as France, a seating President enjoys immunity from prosecution.

Of course, the release of these tapes and the record could just be the beginning of a new journey that may see Zuma re-charged in the medium-term future after many rounds of resistance I am sure. Interestingly, the tapes and the record could prove that Mpshe’s decision was to some extent the right one – even though this is punted to be unlikely. Right now, before we even look at the other factors at play, the immediate point is to determine whether Mpshe exercised his mind in a rational and lawful manner or not in April 2009. If he did, justice will be the winner; however, if he did not, the office of the NDPP will continue with reputation and credibility crisis.

Whatever the future may hold, we now know that this review process will be an attempt to cleanse the somewhat contaminated NPA in this country. It is a journey to see the NPA not used as a function of politics. However, this is just one case out of many involving politicians that have relied on the weakness and politicisation of the NPA not to see the light of day. But one thing for sure, no NDPP shall act in such a brazen manner as Mpshe did and hope that their actions would be immune to review, as though cast in stone as the ultimate truth. We are in for interesting times as a country and the evolution of the state in general.

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