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Spy tapes ruling opens Pandora’s box

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Spy tapes ruling opens Pandora’s box

Political analyst Aubrey Matshiqi discusses the spy tapes ruling. Camera & Editing: Darlene Creamer. (10/09/2014)

12th September 2014

By: Aubrey Matshiqi

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Democratic alliance (DA) leader Helen Zille, in response to the decision of the Supreme Court of Appeal (SCA) to grant the party access to the so-called ‘spy tapes’, said that this decision was “the end of the beginning”.

What she was referring to is the fact that her party had fought a court battle for five years to force the National Prosecuting Authority (NPA) to hand over the tapes to the DA. Why are these spy tapes so critical?

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To understand the significance of the tapes, we need to go back to the period leading up to the laying of charges of corruption, fraud and money laundering against Jacob Zuma in 2005. In this regard, we must begin with the statement that was made by Bulelani Ngcuka, the former National Director of Public Prosecutions (NDPP). In August 2003, Ngcuka said that the State had a prima facie case against Zuma but did not think that it had a ‘winnable case’.

Two years later, I was asked to write a paper on the implications of the Zuma corruption trial for the criminal justice system of South Africa. The paper was commissioned by Irish Aid which, perhaps, was an indication of the fact that the trial had caught the attention of people beyond the borders of our country. In the process of doing research, I interviewed lawyers from the Johannesburg Bar of Advocates. They were all of the view that Ngcuka had erred because, in their view, if the NPA had a prima facie case, it had to prosecute Zuma. At a political level, it was argued by some of the supporters of Zuma that Ngcuka had made a political decision and was, therefore, guilty of trial by innuendo.

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In June 2005, Schabir Shaik, financial adviser of Zuma, then Deputy President of the country and the ruling African National Congress’s (ANC’s) number two, was convicted on charges of fraud and corruption. In fact, the NPA argued in its heads of argument that there was a “generally corrupt relationship” between Shaik and Zuma. It is for this reason that it was argued by some that Zuma should have been charged with Shaik.

What set in train the chain of events that have led to the decision by the SCA to allow the DA to gain access to the spy tapes was the firing of Zuma by the then President of South Africa, Thabo Mbeki, from his position as the Deputy President of the country. This, in turn, resulted in a rebellion against Mbeki, which culminated in Zuma being elected president of the ANC at the 2007 Polokwane conference of the ruling party. In September of the next year, Mbeki was recalled by the ANC and was removed as head of State. The main reason behind support for Zuma and the rebellion against Mbeki was the argument that he had abused State institutions to undermine Zuma politically. In other words, it was the view of Zuma supporters that Mbeki was the chief conspirator in the political conspiracy against Zuma and that the NPA itself was part of this political conspiracy.

The acting NDPP, Mokotedi Mpshe, seemed to vindicate Zuma’s supporters when, in April 2009, two weeks before the general election, he announced that the NPA was withdrawing charges of corruption against Zuma because there was evidence that Zuma had been the victim of a political conspiracy. Mpshe used the content of the spy tapes, including a conversation between Ngcuka and Leonard McCarthy, who was the head of the Scorpions, in which they discussed the timing of Zuma’s arrest to prevent him from attending the Polokwane conference, as the basis for the withdrawal of the charges against him.

In response, the DA went to court because, in its view, the decision was unlawful and irrational.

As I said, Zille says that the access her party has been given to the spy tapes is the end of the beginning because now the DA can proceed to have the 2009 decision of the NPA reviewed. The question, however, is whether the DA’s SCA victory is the beginning of the end for Zuma. What will happen if our courts find that the decision was indeed unlawful before he finishes the current Presidential term? Will Zuma have to resign? Will the ANC force him to resign or will it wait for the NPA to decide whether it is reinstating charges of corruption against Zuma? What is clear is that, given his other woes, the spy tapes saga is the last thing the President needs at the moment. In the end, two questions need to be answered. First, were the NPA and the Scorpions part of a political conspiracy against Zuma? Second, was the NPA’s decision to withdraw the charges a function of a counterconspiracy by Zuma supporters?

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