Constitutional Hill

Reasons please

Judging from what Willem Heath said tonight in a debate on Interface on the SABC (nice new chairs they have in the studio!), we might not get the reasons we deserve if the NPA does go ahead and announce that all charges against Mr jacob Zuma would be dropped. But the NPA has a legal duty to provide reasons for its decision. What we must all remember is that the decision must be taken in terms of the law and not because of political factors. If it is not taken in terms of the law the decision will be ultra vires and could be reviewed.

Section 179(5)(a) of the Constitution states that:

National Director of Public Prosecutions- must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process.

This means, as the prosecution policy points out, that the Prosecution Policy is binding on the NPA. The NPA therefore has a constitutional and legal duty to adhere to the policy. If it fails to do so the decision is illegal. Once we know the outcome of the NPA decision judge for yourself if you think the decision was legal or whether the NPA is flouting the Rule of Law. I provide the relevant section (section 4(c) of the policy) below:

Once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable prospect of a conviction, a prosecution should normally follow, unless public interest demands otherwise.

There is no rule in law, which states that all the provable cases brought to the attention of the Prosecuting Authority must be prosecuted. On the contrary, any such rule would be too harsh and impose an impossible burden on the prosecutor and on a society interested in the
fair administration of justice.

When considering whether or not it will be in the public interest to prosecute, prosecutors should consider all relevant factors, including:

The nature and seriousness of the offence:
• The seriousness of the offence, taking into account the effect of the crime on the victim, the manner in which it was committed, the motivation for the act and the relationship between the accused and the victim.
• The nature of the offence, its prevalence and recurrence, and its effect on public order and morale.
• The economic impact of the offence on the community, its threat to people or damage to public property, and its effect on the peace of mind and sense of security of the public.
• The likely outcome in the event of a conviction, having regard to sentencing options available to the court.

The interests of the victim and the broader community:
• The attitude of the victim of the offence towards a prosecution and the potential effects of discontinuing it. Care should be taken when considering this factor, since public interest may demand that certain crimes should be prosecuted – regardless of a complainant’s wish not to proceed.
• The need for individual and general deterrence, and the necessity of maintaining public confidence in the criminal justice system.
• Prosecution priorities as determined from time to time, the likely length and expense of a trial and whether or not a prosecution would be deemed counterproductive.

The circumstances of the offender:

• The previous convictions of the accused, his or her criminal history, background, culpability and personal circumstances, as well as other mitigating or aggravating factors.

• Whether the accused has admitted guilt, shown repentance, made restitution or expressed a willingness to co-operate with the authorities in the investigation or prosecution of others. (In this regard the degree of culpability of theaccused and the extent to which reliable evidence from the said accused is considered necessary to secure a conviction against others, will be crucial).
• Whether the objectives of criminal justice would be better served by implementing non-criminal alternatives to prosecution, particularly in the case of juvenile offenders and less serious matters.
• Whether there has been an unreasonably long delay between the date when the crime was committed, the date on which the prosecution was instituted and the trial date, taking into account the complexity of the offence and the role of the accused in the delay.

The relevance of these factors and the weight to be attached to them will depend upon the particular circumstances of each case. It is important that the prosecution process is seen to be transparent and that justice is seen to be done.

Note the last sentence. If the process is not transparent the NPA would not be fulfilling its duties under the policy. Full reasons will therefore have to be given for the decision. If the NPA declines to provide full reasons most reasonable people will become suspicious about the “real” reasons for the decision and justice will not be seen to be done.

  • http://www.kilps.za.net/blog kilps

    If I remember correctly Mr Heath said that “the prosecuting authority should never practise transparency” – which to me, as someone who knows nothing about law, was pretty shocking coming from a former judge when once considers that court proceedings are so open.

    Pierre – you said that while a private prosecution could be brought you expressed reservations about it being accepted. Under what grounds could any South African citizen not be classified as a victim of the crimes Zuma is accused of and thus not be able to pursue a private prosecution?

  • Chris Mcdaniel

    Hi Pierre,

    Yeh I saw you guys on the magic fishbowl last night, I was very impressed with Judith February and she seems to agree with you and with others that this is clearly the Political solution that the ANC seems to be looking for.

    Pierre and Heath in one room was hoping for abit more mudslinging there. Got my popcorn ready and hotdogs was hoping for abit of bashing there.

    kilps // Apr 6, 2009 at 12:05 am
    Yeh he said something along the lines of that….reasons that witness’s and god knows who else’s rights would be infringed if the NPA was transparent in every prosecution….that may well be in some situations but Zuma is a Public figure gunning for the Presidency which is a public office the highest in the land clearly in this case it is in the publics interest

  • Ad

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    R60 million poes – years or wasted money.

    it’s time …………… take out the money wasters; the Spin doctors and put them next to Irene under a grootboom

    thanx for all the money spent

  • http://www.ozoneblue.co.za ozoneblue

    Don’t worry Pierre. I suspect and hope that a full investigation into the dodgy activities of the NPA and the Scorpions will be conducted and that those found guilty of undermining our constitution and our justice system brought to book. I’m sure you are going to throw your full weight, “man breasts” included, behind that – or what am I saying boet ?

  • MOHAMEDALY HANWARE

    Let it go…this announcment was gonna be made sooner or later….If you recall 3 weeks ago it was reported that the NPA was gonna drop charges then that report just became hush for whatever reason….well that was the NPA ( or powers that BE’s) way of testing public responce to the announcement. I read in some sunday newspaper that the NPA lost it’s nerve to prosecute Zuma, on the contarry, the is probably gathering all it’s nerve to make this announcment……THIS WILL HURT FOR A LONG TIME…AINA.!!!!!!!

  • Tony in Virginia

    Miscarriage of justice.
    Rape of the judicial system.
    ANC middle finger stuck up.

    …but the public can only watch helplessly.
    This stinks and Mpshe and Zuma know it!!!

  • Taban Matibe

    Prof, was it me or did Willem Heath really sound like a spin doctor for jacob Zuma last night?

  • Mike Atkins

    I find it curious that Mr Zuma goes round to all of the religious groups and tells them that they must hold the government accountable, and that he will not tolerate corruption in government.

    And yet, when Archbishop Tutu should do precisely what church leaders have been invited to do – call political leaders to account – then the ANC goes into overdrive, attacking one of the bravest fighters for justice tha this country has seen.

    Here’s another thought – I wonder what would happen if the cellphone records of Mr Mpshe and Mr Hofmeyer were to fall into the “wrong” hands, and it was found that one or both of these gentlemen had had a number of conversations with key persons in the Zuma cabal.

  • nausea

    45 minutes before the announcement and we all know what’s going to happen:

    Mokotedi will stay true to his comrades and give some wishy-washy explanations as to why the NPA declines to prosecute the old fraudster Showerhead. Some mention will be made of a conspiracy and Thabo’s name will be dragged through the dirt a bit more.

    How on earth anyone can think the NPA headed by an ANC member will find that Zuma needs to be prosecuted is beyond me. (check out Mpshe’s ANC membership here: http://www.whoswhosa.co.za/Pages/profilefull.aspx?IndID=3239).

    Pierre, I’m sorry, but we all know what the ANC thinks of noble concept such as “transparency”, “accountability” and “the rule of law”.

    Mpshe and Zuma will show us what they think by taking a steaming dump on these concepts shortly.

  • Sarah Palin

    Ho hum

    On and on our loyal ANC cadre goes. Just cut to the quick, Mr Mpshe, and tell us that all charges are dropped.

  • Mike Atkins

    So, he has been let off!

    Seemingly, they key argument is that there was an abuse of the “process” in respect of the timing of the re-instatement of charges in December 2007. And, that this was “gross abuse” to such an extent that continued prosecution would be “unconscionable”.

    But, I suspect that if he had been charged before Polokwane, then there would have been identical complaints.

    Also, the argument that a judge should make this decision in an application for a stay of prosecution has been brushed aside.

  • Chris Mcdaniel

    hold on this doesnt make sense

    “The NPA has decided to request the Inspector-General of Intelligence formally to investigate any possible illegality surrounding the recordings that were presented to it.”

    then says

    “The need for further investigation”

    isnt 7yrs not long enough??

    “However, in the time available, it has simply not been able to deal fully with all these aspects and come to firm conclusions. ”

    ok so lets just droppd the chargers….what about the mauritius documents? and other evidence?

    so chargers are dropped based on the tapes which we still dont yet know where obtained legaly?

    WTF??? are these people smoking?

  • Mike Atkins

    They seem to be relying on a thinly argued area of case law, and not on any piece of legislation or prosecutoria policy.

    As argued by the Prof, this makes the decision ultra vires. The NPA has undertaken the role of a judge in an application for a stay of prosecution.

    OK, who can institute a Review of this decision?

  • Mike Atkins

    OK, so the charge against Thint has been dropped. Without ANY REASON!! All reasons are related to Zuma.

    This decision is thus also unlawful.

  • nausea

    No surprises.

    Pathetic reasons for dropping the charges by Mpshe. Another victory for the ANC over the judiciary.

    Any review of the decision will be answered with cries of “counter revolutionary” and “apartheid era judges” by the ANC.

    Welcome to African democracy.

  • Chris Mcdaniel

    the only guy who can still rescue this is Pikoli if he wins his case in court he goes back to being the NPA head and chargers re open and properly done.

  • Mike Atkins

    Chris, note that the Presidency has delayed Pikoli’s matter as much as they can.

  • Chris Mcdaniel

    the president can try at the end of the day Pikoli is a bull dog and mark my words If Zuma is Jesus then Pikoli is the Roman soilder Marrie who struck the spear in Jesus.

    Pikoli will win his case in court

  • Donovan

    I’m not a lawyer. I believe that Jacob Zuma and all other political leaders should be held to account. I am in favour of a prosecution of Zuma on the charges of abuse of public office. However, I cannot see what other choice the NPA had. Clear evidence of conniving and collusion was found between the Head of Investigations and the former Head of the NPA, even after he had left the institution. How can you trust the evidence? The former Head seemed to have continued instructing the Investigations Head. This is wrong, it ensured that there is an abuse of process.

    Ngcuka with his arrogance and pechant to control everything ensured that this case would not see the light of day. The issue of when to charge is an example of the type of abuse of process and the complete interference by Ngcuka and undermining of the NPA and its officers. Nobody can be convinced that this is all the evidence that has been uncovered.

  • Sarah Palin

    Only gratifying thing in the whole charade was seeing Mpshe squirm when faced with a couple of excellent questions from the press.

  • spoiler

    I cant quite fathom the “ulterior motive” argument. Mpshe cites a wholly unconvincing case invoving the confiscation of machines, not for evidence but to shut an accused down, but also cites the Schreiner argument that no matter how bad the motive it cannot render an arrest/prosecution unlawful. Missed the rest. Did he go on to argue that the prosection was designed to achieve a political end and this was therefore the ulterior motive rendering the NPA’s actions unlawful?

    I am sure even I could find huge gaps in that argument – starting with the Schreiner dictum. I think that where a prosecution is concerned, an ulterior motive and a bad or unlawful motive are virtually the same, so no matter how selective and how politically influenced the prosecution was, it was not unlawful.

    No doubt in my mind there has been political pressure and meddling in Mpshe’s decision. So, no court case, no hearing for Zuma and an NPA which remains as tainted as ever…

  • Mike Atkins

    Spoiler,

    The motive for prosecution is not mentioned (scared of Harms?).

    Next question, Prof:
    Has anyone alleged that Mr Zuma suffered prejudice in any legal (or other) sense as a consequence of the timing?

    If not, how could ANY “abuse” of the process be used as a reason not to prosecute?

    Also, no reason was given for the decision to drop charges against Thint. This is surely unlawful.

  • http://www.ukzn.ac.za S’phamandla Mchunu

    I think those were reasons enough Prof. I wonder if the focus will now shift to those alleged to have consired against Zuma. Let us now talk about McCarthy and Ngcuka. What will McCarthy’s employees think of him. There is an epitome of quiet diplomacy on the other side. Will this decision of the NPA change public perception of Mbeki…I keep wondering.

  • Peter

    It seems that there is no doubt that there was political meddling. However, the NPA seems to think that making the meddling publicly known and dropping charges is the solution. However, Downer must obviously believe that the best way forward is to make the meddling known and then continue with the case, which he must still believe is winnable regardless of how uncomfortable the meddling would make his job (which confirms just how strong the case against Zuma is).

    I fail to see how Mpshe’s approach is better than Downer’s? The only conclusion one can draw is that Mpshe has succumbed to political pressure, which makes the NPA look even worse.

    It is now clear why Pikoli was fired.

    Where do we go from here? I guess one simply has to make peace with the fact that the ANC is now irretrievably corrupt, and hope that over the course of a few elections they can be voted from power. However, the lessons of Zimbabwe and others teach us that liberation movements will happily destroy a country rather than give up the spoils of power. A very sad day for all thinking South Africans!

  • Shawn

    It is clear to me that McCarthy is being blamed for this whole circus. The NPA was very clever to release just enough information to satisfy the masses that McCarty and others conspired.

    What I wonder about is why the legal proceedings should stop now? What about the fraud case involving Shaik, and wasn’t there charges of tax evasion as well?
    Did Mpshe leave a door open by saying that there are sufficient evidence to prosecute? If I look at Pierre’s original post, then Mpshe making this comment is risky, as it may leave a door open for someone to challenge the decision of the NPA.

  • http://www.ozoneblue.co.za ozoneblue

    Good – now I hope PdV is going to join the rest of us and call for a proper investigation into the political abuse of the NPA, Scorpions by Ngcuka and McCarthy.

  • http://www.ozoneblue.co.za ozoneblue

    spoiler // Apr 6, 2009 at 12:56 pm

    I” cant quite fathom the “ulterior motive” argument. ”

    I have posted in here many times what the “ulterior motives” are. It was a continuation of the “cold war” in trying to discredit and undermine the “populist”, “left-leaning” elements inside the ANC.

  • Chris Mcdaniel

    Um Ozoneblue what political abuse if anything its pointing to an abuse of process.

    did u not read the NPA statement?

    there is no mention of political abuse infact there is no mention of Mbeki to politicaly abuse the NPA or the scorpians or Ngcuka

    if anything its just an abuse of process

  • Mike Atkins

    OzoneBlue,

    There are many of us ‘ordinary guys” out here who do not take siades in the ANC’s wretched internal politicking that has spilled over into the organs of state. If there are grounds to go after other people, well then do it. Excuse the language, but WTF!

    But, if reasonable evidence exists that a crime has been committed, by anyone (even, “gasp”, Mr Mandela), then let it be investigated and tried.

    Mr Mpshe did not actually supply a single actual reason why the prosecution was halted. He said a lot about McCarthy and Ngcuka.

    Also, think through the Thint issue for just a moment…

  • Chris Mcdaniel

    infact ozoneblue

    “As an officer of the court I feel personally wronged and betrayed that on a number of occasions I have given evidence under oath that there has not been any meddling or manipulation of the process in this matter. It is with a great regret that I have to say today that in relation to this case I can not see my way clear to go to court in future and give the nation this assurance”

    what this says is there is evidence that your future President is corrupt he is not innocent he hasnt proved it otherwise he is actually guilty but however the process that seems to have been taken taints the evidence but the fact remains Zuma did dodge dealings. you cant disprove that im afriad but yet you will vote for him

    you will still vote for the ANC couse if you believe in your conspirecy theories ANC damaged the NIA and the NPA thats very cool man.

  • spoiler

    Ozone, thats not what i meant. I accept that Mbeki is an evil dude and I would love him to have to answer for his misdeeds.

    What i meant was that Mpshe’s legal justification for declining to prosecute was weak. He contradicts himself and if an ulterior motive is just another way of saying the motive for prosecuting an anotherwise “righteous” offence was bad, its accepted law that this does not render the prosecution invalid, as he himself says.

    I should prolly read the whole statement before I comment further :)

  • Chris Mcdaniel

    um just one question that will blow this whole BS statement

    What about the Mauritius documents? um last time i checked that was obtained lawfully in a court room?

    Mpshe how much they paying you? what a systematic attack

  • Mike Atkins

    Chris, 2:18pm “taints the eivdence”.

    Maybe a small slip, but no evidence has been tainted.

    Also, legally speaking, what was the ACTUAL reason. He gave the tapes, and then said “therefore”. But he did not explaint he connection between the contents of the tapes, and the decision.

  • khosi

    You know, its been appr 3 hours since the Mpshe announcement. I am sensing a somber rather than jubilant mood. Many people seem to be feeling cheated. Many are celebrating yet expressing the same feeling of being cheated.

    For ANC sake, I hope that I a wrong.

  • Chris Mcdaniel

    Mike

    yes a small slip but wanted to explain to ozone that Zuma is not aquitted he is still guilty

    what i dont like in the statment by the NPA is there has been no probe into these tapes…….apart from a law degree i got a sound engineering degree you know how easy it is to manipulate audio?

    this is very weak what should of happend is full probe into the tapes before the NPA decided to drop chargers…as im aware and im sure alot people is the NIA is just a rotten. Personnaly I would love to have the Name of the judge who authorised these tappings but clearly Mpshe seems to take this on as face value.

    Over and above that the process to obtain the Mauritius documents was not illegal or abused….These document could tie all of this up and give credibility to this case again

    I actually feel sick to be honest, Pikoli needs to get back to his rightful place again. Mpshe buckled and showed he is Zuma’s little bitch

  • http://www.ozoneblue.co.za ozoneblue

    Chris Mcdaniel // Apr 6, 2009 at 2:18 pm

    “As an officer of the court I feel personally wronged and betrayed that on a number of occasions I have given evidence under oath that there has not been any meddling or manipulation of the process in this matter. It is with a great regret that I have to say today that in relation to this case I can not see my way clear to go to court in future and give the nation this assurance”

    That summarizes it nicely, thank you. Fortunately one of the pillars of justice is “equality before the law”, fairness and even-handedness. Justice must be served without fear or prejudice. Otherwise all our “counter-revolutionaries” who apparently have no problem with the way Zuma was singled out and targeted may soon find themselves languishing in jail because of minor omissions on their tax return forms and unpaid speeding fines.

    My position is that in a young democracy that is the bigger issue.

    As I have said plenty of times : if the process was not manipulated and prejudiced they would have easily secured a conviction against Zuma if he was in fact guilty in the first place. All that Ngcuka had to do is not make those prejudicial statements about Zuma in the media. He could simply have said they had evidence that Shaik was guilty of corruption and was going to prosecute. He could have said they had no evidence at the time against any other individuals. He didn’t have to mention names. He didn’t have to implicate Zuma. In the mean time he could have carried on the investigation and surely if he had already enough evidence against Shaik AND if zuma was also guilty he couldn’t have been far from nailing Zuma as well.

  • RC

    I agree with Khosi. The nation has been cheated; supporters and opponents of Mr Zuma are on the two sides of the same coin; innocent or guilty? We will never know.

    I would like to hear PdV’s views on the legal reasons that Adv Mpshe gave for his decision today. This is a very convenient sequence of events. First the Scorpions are done away with, then a finger is pointed to their empty shell and shouted, “This is your fault!”

  • Chris Mcdaniel

    ok ozoneblue

    what about the Mauritius documents? Please explain this to me? cos if you can i will cast aside my US citizenship and become south african and vote anc please explain that to me. Cos that bad boy of a document will nail your boyfriend to the cross. Obtained legally!!!!

    Then you say this cos you dont seem to understand what is actually going on

    “That summarizes it nicely, thank you. Fortunately one of the pillars of justice is “equality before the law”, fairness and even-handedness. Justice must be served without fear or prejudice. Otherwise all our “counter-revolutionaries” who apparently have no problem with the way Zuma was singled out and targeted may soon find themselves languishing in jail because of minor omissions on their tax return forms and unpaid speeding fines. ”

    You do know Zuma is Not not aquitted im going to repeat not aquitted therefore still guilty

    so then you want to argue equal before the law well Zuma isnt equal before law is he? if we just go for McCarthy and Ngcuka, now that would be singling out people wouldnt it?, Zuma should still be charged, Unfortunitly there is no evidence for Mbkei yet but if there is he should also be chargered

  • Vuyo

    Poor Mpshe, he has made an extraordinary blunder, with implications that will only be appreciated by the histories.
    His decisions is a travesty and he has unwittingly placed Mr Zuma in the unenviable situation of having a perpetual cloud hanging over his head, this time without the benefit of the mantra: “innocent until proven guilty”. I doubt that Zuma or many of his supporters will even appreciate the extent to which he has been compromised by Mpshe’s suggestion that the evidence supporting the merits of the NPA’s case were of such a nature that his representations could not be sustained! He is therefore not under charge but the courts (per Shaik decisions) and the NPA have made clear findings, that there is compelling evidence of his guilt. This is worse than the “prima facie” statement by Ngcuka and only benefits the ANC, for the 2009 campaign, but will have extraordinary implications for Zuma’s presidency as well as the ANC’s electoral success in future. For example, how will the counter accusations against Zuma in regard to his relationship with Shaik but for instituting actions for defamation (the onus of which is a balance of probability? I can literally hold a press conference and call Zuma corrupt, and his only recourse would likely lead to a finding against him (on a balance of probabilities in a court of law)! I suppose Zuma has himself to blame and his only comfort is that he will become president and avoid the prison cell (but this issue will never ever come to an end).
    To compound the travesty, Mpshe has published extracts of conversations by individuals without publishing their explanations (a least in the case of Ngcuka, who apparently replied) and without conducting a thorough investigation (verification of the tapes took ONLY a week), and has, stated something akin to having a prima facie case against them without even the benefit of considering all aspects relating to their matter (such reasonably prospects of a successful prosecution!). Indeed a public trial against these individuals has begun (which I hope the ANC will vehemently condemn). I hope Malema and the rest of his colleagues will be consistent in their application of the principle of a presumption of innocence. I hope as well that Jacob Zuma, the man who will be President, will explain inter alia the following: (1) payments received from Shaik, (2) the representations that he made on behalf of Shaik (see Squire’s judgment), and (3) why these payments were never disclosed to parliament, as he was obliged.
    This was not a decision grounded in law, and I salute Downer and Hofmeyr for opposing it vehemently.

  • http://www.ozoneblue.co.za ozoneblue

    Chris Mcdaniel // Apr 6, 2009 at 2:58 pm

    Nice try. If you are indeed a “sound engineer” you would know that there are ways and means of determining whether an original recording has been tampered with. The NIA would not hand over “tampered” evidence to the NPA because they would obviously have access to the same kind of forensics that can determine whether a recording has been “tampered with”. With so much at stake and the reputation/credibility of the NPA being at risk here I find it hard to believe that those basic verifications was not done.

  • Peter

    OB – agree that the credibility of the NPA is in tatters. However, their own lead prosecutors voted to continue with their case on the strengh of the untainted evidence that they have.

    Wille H made the case that they often have to drop charges because, for eg, a summons was invalid etc. But in these cases the charges are dropped because the evidence is inadmissable. They did not indicate that any of their hard evidence against Zuma had been tainted….

    To drop charges only completely destroys any credibility that the NPA had left. The only way they could have started to restore confidence in the NPA would have been to keep on with the Zuma charges and also charge all others implicated in corruption. It would have been much better for a judge to decide how tainted the case is.

    PS will Zuma explain how he got hold of the NIA tapes – it seems the NIA must now also be regarded as a corrupted institution.

    The judiciary seems to be the only vaguely uncorrupted institution left (once Hlopes is gone), but this will end with the next rounds of appointments – and the ZANUfication of our democracy will be complete.

  • http://www.ozoneblue.co.za ozoneblue

    Chris Mcdaniel // Apr 6, 2009 at 3:26 pm

    “Not not aquitted im going to repeat not aquitted therefore still guilty”

    LOL. That must be the USA justice system for you – guilty until proven innocent.

  • Spuy

    Chris, you guys must remember that this is a Democratic country, having institutios that ought to enhance and protect the same. Anyway, let me deal briefly with a number of issues raised by yourself, some so-called analysts and , typically, the opposition: 1. In law, I know even from a simple Labour Law, the PROCESS/PROCEDURE is very very very IMPORTANT cos immediately you have a flawed/tainted/ ‘abused’ legal procedure, you will LOOSE a case altogether. On that ONLY? YES, ONLY on that. You yourself must be aware of many such instances! Welcome to Democracy boys!! Adv Hofmeyr dealt with this very eloquently when responding to questions. 2. Mpshe is an experienced Prosecutor. He investigated the authenticity and legality of the recordings, as stated in his statement (contrary to some confused few in this blog – read his statement calmly this time okay ). He found that they were indeed legally obtained by the NIA while busy investigating the Browse Mole saga. Obviously Mpshe as a prosecutor, having investigated and satisfied himself on this recordings, he does not need a court to rule on these. I mean, how would he defend/justify such CLEAR abuse and manupulation, which he has investigated himself, it would indeed mean he has no conscience. Especially, seeing that McCarthy and Ncguka did not assist much, by refusing to answer NPA s questions under oath, infact, McCarthy did even bother answering without oath it appears. 3. Thint is the co-accused in the Zuma matter, i.e it goes without saying that legally you cant stop prosecuting Zuma and continue prosecuting the co-accused. I m sure, lay as you are in Law Chris, you do somehow get a picture, dont you? Forget that we are talking about ZUMA for a while – can you try n do that? Thank you.

  • Chris Mcdaniel

    Ozoneblue whats your email address? ill send you two tracks I did recently

    Ill also send you a snap shot of desktop using acid pro

    seriously would dig to hear what you think of my tracks.

    “are ways and means of determining whether an original recording has been tampered with”

    not really to behonest cos you can import the entire audio into a sequencer and using a simple wave editor you can easily edit the clip and make it smooth.

    Infact i can do a test for you…send me an audio clip of you speaking and ill manipulate for you….try me?

    “With so much at stake and the reputation/credibility of the NPA being at risk here I find it hard to believe that those basic verifications was not done.”

    I thought this was South Africa isnt your slogan: anything is possable?

    besides have no proof that the NIA wouldnt hand over tampered audio?? or do?

  • George Gildenhuys

    Ok, so the NPA has decided not to prosecute Mr Zuma, although several court cases involving Shaick has confirmed that Zuma has indeed received bribes… The reason does sound a bit thin to be very honest.

    What a shame. Zuma seems guilty and DOES have a case to answer, granted so does quite a large number of ANC MP’s (for that matter I cannot believe COPE’s folks are squeaky clean either, Lekota had to be involved)

    BUT, let us not beat the independent-NPA drum and then complain when they do in fact make a decision. All allegations need investigation, both McCarthy/Nguka and also ANC pressure to drop the case, but I cannot agree with Zille in threatening the NPA with legal action. Let us give the NPA the benefit of the doubt…

  • http://www.ozoneblue.co.za ozoneblue

    Spuy @ 3:30 pm

    “Especially, seeing that McCarthy and Ncguka did not assist much, by refusing to answer NPA s questions under oath, infact, McCarthy did even bother answering without oath it appears.”

    That is not the first time that happened either. Ngcuka refused to answer questions under oath put to him during the Heifer commission. McCarty refused to cooperate with the Browse-Mole parliamentary investigation – in fact Pikoli was even implicated in the destruction of evidence – blaming it on a “crashed” hard disk. They have been playing this cloak and dagger game all along : with the media and our “constitutional experts” happily cheering them on.

  • http://www.ozoneblue.co.za ozoneblue

    Chris Mcdaniel @ 3:36 pm

    Please – then to be consistent and given that the NPA/Scorpions was apparently bent on sinking Zuma who says all the documents and “encrypted faxes” used as evidence against Shaik could not have been tampered with also ?

    Or are you suggesting it is audio recording that can be doctored ?

  • Spuy

    McCarthy, did NOT even answer at all, I meant. But really guys, how was Mpshe (as a Commissioner of Oath) expected to continue with this prosecution “with clean hands” and conscience?…To satisfy you Court of Public opinion which believes “Zuma is GUILTY untill proven INNOCENT by a court of your choice” ? Never. The NPA has made its decision legally, if you cant live with this legal decision, tough! From the NPA s side, this is THE END.

  • Chris Mcdaniel

    um spuy

    lol ok game on

    then explain to me why would he then contradict himself about the tapes being obtained from NIA where Legal then say this:

    “The NPA has decided to request the Inspector-General of Intelligence formally to investigate any possible illegality surrounding the recordings that were presented to it.”

    surely if the NIA said it obtained the recordings legally during the browse report then why the need to request to formally investigate the recordings again?

    spuy had no idea a one party state is a democratic country?.

    You and Ozoneblue cant seem to answer my question on the Mauritius documents?
    I ask why?

    Ozoneblue
    LOL well prove to me Zuma is innocent?? see you cant he is guilty….you cant disprove that with any court judgement can you? for you to find this funny shows such lack of tact.

    Im sure you to are rather giddy about the statement but you cant disprove his guilt so i mean really who gets the last laugh…….

  • Chris Mcdaniel

    ozoneblue // Apr 6, 2009 at 3:44 pm

    stop wasting my time whats your email address? and send me an voice audio clip and ill manipulated for you.

    Im going to keep harping on about this Mauritius documents?
    you can not answer this question can you?

  • George Gildenhuys

    Pieter Mulder (can’t believe I am agreeing with him!!) has a point here:

    http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=124323&sn=Marketingweb+detail

  • Mike Atkins

    Spuy,

    About labour law and “procedure” and “process”. A dismissal must be procedurally fair. That is akin to the final outcome of a trial. And of course the trial must be procedurally fair.

    The “process” that we are talking about here has to do with the motivation behind the TIMING of re-instating of charges.

    Now, in any Hearing, unfair procedures will “prejudice” the accused. Can anyone tell us one single shred of how Mr Zuma was “prejudiced” by the timing of the announcement that charges would be re-instated?

    BTW, see that Mr Phosa has already started lying about this, and saying that the NPA has now agreed that Mr Zuma is innocent.

  • http://www.ozoneblue.co.za ozoneblue

    George Gildenhuys @ 4:07 pm

    “The core question is – what interest did Bulelani Ngcuka have in this? Who and what is behind Bulelani Ngcuka? These are questions which have to be answered immediately. ”

    he he. Now even Piet Mulder is starting to sound like a “conspiracy theorist”.

    Piet – it is very clear who and what is behind Bulelani Ngcuka – it is the “business-friendly” Thabo Mbeki together with those elements of the Apartheid security establishment and foreign intelligence agencies of ex-colonialist powers who wants to protect their vested business interests from those “left-leaning” allies behind Zuma and goes under the polite pseudonym of the “the markets”.

    And please remember. Bulelani Ngcuka “probably” wasn’t an Apartheid spy.

  • Chris Mcdaniel

    ozoneblue // Apr 6, 2009 at 4:19 pm

    oh god here we go now the “Markets and colonialist” i guess that would be the Chinies then? LMAO

    comeone Ozoneblues you to scared to take me up on my challenge? wheres your balls my boy?

  • http://www.ozoneblue.co.za ozoneblue

    Chris Mcdaniel // Apr 6, 2009 at 4:23 pm

    No problem buddy. Send me a copy of your signature and I will manufacture a document proving you are a CIA agent who planted a document in Mauritius implicating Zuma.

    Your laughable argument about the tapes having been doctored and accepted at face value by the naive NPA cuts both ways.

  • Mike Atkins

    You know, this discussion is deteriorating. The fact is that the NPA did not actually give a reason, in law, for the withdrawal of the charges.

    The decision was an arbitrary one:-

    various people did stuff wrong; the “process” was tainted (but only in respect of one person’s motives, and only in respect of the timing); Mr Zuma was not prejudiced in terms of his rights to a fair trial, etc , etc.

    How does any of this relate to why aspirant president of South Africa should not face charges?

    And they did not even TRY to explain why charges against Thint should be dropped.

  • http://www.ozoneblue.co.za ozoneblue

    Chris Mcdaniel @ 4:23 pm

    “oh god here we go now the “Markets and colonialist” i guess that would be the Chinies then? LMAO”

    Yes you are totally right. Now that we are busy with Ngcuka, us South Africans also want to know which “foreign intelligence agencies” and “Apartheid security apparatus” where used by McCarthy in compiling the Browse-Mole pot of shit.

  • http://www.ozoneblue.co.za ozoneblue

    Mike Atkins // Apr 6, 2009 at 4:30 pm

    “You know, this discussion is deteriorating.”

    What did you expect with the brain-dead troll around ?

  • Chris Mcdaniel

    ozoneblue // Apr 6, 2009 at 4:28 pm

    for the love of god this is not hard my email address iftaudio.com@gmail.com send me an email ill send you some tracks Ive made and I look forward to a nice little audio clip (can be MP3, wav as long as its not REX2 unfortuntitly acide pro doesnt read REX2 files) from you and ill manipulated for you, its very easy

    “Your laughable argument about the tapes having been doctored and accepted at face value by the naive NPA cuts both ways”

    The guy contradicted himself explain that one lol.

    since you still jumping around avioding key questions like a document i mentioned?

    i look forward to your email :)

  • http://www.ozoneblue.co.za ozoneblue

    Chris Mcdaniel @ 4:34 pm

    You cannot fake original analog recordings. Even if you try there are forensic means of determining authenticity. Thus we are talking about TAPES even in the era of digital recording formats such as MP3, wav.

    The NIA will not use techniques and devices that are prone to manipulation.

  • George Gildenhuys

    Framework
    Number of role types 25
    Ozoneblue @ 16:19

    “”"it is the “business-friendly” Thabo Mbeki together with those elements of the Apartheid security establishment and foreign intelligence agencies of ex-colonialist powers who wants to protect their vested business interests from those “left-leaning” allies behind Zuma and goes under the polite pseudonym of the “the markets”.”"”

    Hahaha! Clearly you’ve watched way too many KGB films!

    Seeing as you’re talking a bunch of shit, I thought I’d join you:

    Next you’re going to tell me the Illuminati is behind 9/11 and that the Boxing day Tsunami…

    Oh wait, I bet the Imperial colonial intelligence agencies are behind global warming as well…

  • Chris Mcdaniel

    ozoneblue // Apr 6, 2009 at 4:40 pm

    um if its phone tapings that means there is a reciever involved that means its digital….Ozoneblue i got ur back against the wall, not only have you been avoiding my questions and my challenge but Mikes as well we both are actually waiting for your answers.

    you are simply a fake….

    1)The questions again what are the legal reasons for dropping the chargers?
    2) why does Mpshe contradict himself about the tapes
    3) if the evidence are tainted what about the Mauritius documents which you know was obtained legaly and is damning to Zuma and thint
    4) why was thint chargers dropped for no reason?

    dont bother replying back if you cant answer this? and skip around the issue?

    such a fake!

  • The Big Slipper

    Well, Black Monday has taken on a whole new meaning in South African history…

    I don’t understand how there was a strong case all the way through, but now it’s not winnable because of these tapes – to my simple little brain, it would indicate that there are more people to be prosecuted for some stuff, as opposed to dropping the charges against Zuma. If the man still has a case to answer, then he must answer it – regardless of outside intereference.

    If the evidence obtained is tainted or fabricated, that is a different story – then clearly Zuma should not be prosecuted. But it seems to me that this was never a contention. So we have all this evidence that he’s guilty, but because some guys got illegally (?) caught on tape implying that this was a political game, the couple hundred grand sitting on Zuma’s bank statement doesn’t cut it anymore?!

    This is a complete mockery of justice, and has left the NPA, the NIA, the former administration and the future administration with little more than shreds of stained credibility. There are no winners in this scenario, but the biggest losers are the people of South Africa, who love their country but are forced to stand by and watch the ANC ride roughshod over the Constitution which they so proudly lay claim to.

    Today was the first time I’ve ever felt embarrassed to be South African, as I read the breaking news on international websites. We’ve lost our soul – it’s every man for himself these days apparently.

  • spoiler

    Well put BS, well put. Mbeki and Zuma between them have applied their liberation organization ethics and morality to governing a constitutional democracy. Someone should have sent them and the rest of their corrupt cde’s to goverment school before letting them loose on us…

  • Spuy

    After we are all agreed that we ve done justice with regards to interogating and disecting this decision of the NDPP and his reasons, we must objectively look at the lessons that can be drawn from this mess going forward, especially how to make sure that the NPA never ever finds itself in such disrepute cos to me that is a fundamental question. I mean, we must remember or know – those who dont, that JUSTICE does not begin in court, it actually begins from the initial process e.g investigations, fairness in the processess, non-tampering with those, etc and ultimately a court appearance.

  • Spuy

    Another thing: I ve actually realised that there is a loose and uninformed usage of a term “merits” of a case. Most actually use this term ONLY as it relates to the SUBSTANTIVE part, while, in fact, when we talk of a merits or de-merits for that matter, we refer to the case in toto, i.e Processess of Procedure AND substance.

  • http://www.ozoneblue.co.za ozoneblue

    The Big Slipper @ 6:29 pm

    “This is a complete mockery of justice, and has left the NPA, the NIA, the former administration and the future administration with little more than shreds of stained credibility.”

    And to think just a few days ago you and the ‘constitutional expert” was trying to convince us all that the Scorpions were the best thing to happen to South Africa since peanut butter sandwiches. Now it turns out they were indeed political a political weapon, abusing our trust, our young democracy and the constitution to defend a neocolonialist political dispensation, inherited from the “cold war” days of Apartheid and that has left the a majority of our people behind in poverty and despair.

    I certainly hope this is not the end of this. Like Piet Mulder I want to know who was behind Ngcuka and McCarthy ? Who were those “elements of Apartheid security structures” and “foreign intelligence agencies” working with the Scorpions ?

    I want the entire arms-deal exposed. What was the role of the Tony Blairs, the BAEs and the Mbekis. Unlike PdV I’m not satisfied with the fall guy – some naughty child who got caught with his hand in the cookie jar while the big chiefs were carrying off the crown jewels, it should be escalated into an international incident that would shake our planet’s moral consciousness to the core.

    Then what has transpired during the unfortunate past 10 years in South Africa will certainly not have been in vain.

  • The Big Slipper

    Ozone, under Vusi Pikoli the Scorpions were the best thing to happen to SA – they were extremely effective in chasing down organised crime, as evidenced by the statistical data available to us. This is why it seems Pikoli was dismissed on such flimsy grounds – I doubt he would have backed down on the Zuma charges.

    The fact that McCarthy or whomever else may have abused process (it all seems a bit murky, given that we do not have the contents of the tapes in their entirety, but it does seem incriminating from what we have) does not change the fact that the NPA under Pikoli was establishing for itself a fearsome reputation among those on the dubious side of the law – a lot of ANC cadres included. They had extremely skilled and competent people working there, and had a phenomenal conviction rate.

    They were established by the ANC, not inherited from Apartheid. It was only when they started investigating things like Travelgate and the Arms Deal that they ANC suddenly realised that they may have bitten off more than they could chew – especially once an independent and strong willed NDPP was appointed.

    Unfortunately, with Pikoli fired for ridiculous reasons (and contrary to the “independent” commission of inquiry), and the acting NDPP suddenly dropping the charges with this miraculous new evidence (which has clearly been around for a while), whatever credibility the NPA had just got blasted away – purely because it looks like Mpshe is acting at the behest of Luthuli House, which is in stark contrast to the real NDPP.

    I do agree with you though – this whole Arms Deal stinks to high Heaven, and should be blown wide open. But I disagree – Zuma is not a “naughty child” – he is about to become president of one of the most important countries in Africa, and should be expected to account for his role in this scandal, along with Mbeki, Thint, Shaik, and whoever else is involved. If there is evidence that McCarthy abused process, he should be prosecuted fully too. But Zuma is important for more than just the fact than he looks somewhat guilty – people judge our country based on the calibre of our leadership, and he’s right at the top of that pile, thanks to the SACP and Cosatu. It is impossible to project a positive image of SA now – read the international news reports on the subject, and judge for yourself how the rest of the world views us after today. But then again, China still like us, so I suppose the rest of the world can go jump huh?

    Still, we need this Arms Deal dealt with properly, like you say Ozone. Unfortunately, under a Zuma presidency, it’s never going to happen – get used to the idea, because this is the man that SA will blindly vote into power come election day.

  • Thembalabantubonke

    I am no legal expert and hence I may make glaring errors in my analysis of the Zuma case. According to Mpshe “The NPA is thus confident that its decision is based on information that was intercepted legally and obtained legally by the NPA.” This was said after Mpshe explained how they got about the intelligence. I have therefore no problem with how the NPA obtained confirmation of the tapes they listened to. I do, however have a problem with how Zuma and his legal team obtained such information.
    Jacob Zuma is a civilian and is not in the employ of the state. He is not a member of NICOC, and even if he were, such information as it may fall into his hands cannot be used for personal gain, but can only be used to protect the state.
    It is therefore clear that State resources were utilised for the benefit of a Civilian. This immediately creates an issue of subversion.
    “‘Subversion’ means any activity intended to destroy or undermine the constitutionally established system of government in the Republic of South Africa.”
    This goes beyond Subversion, to the very fraud that Jacob Zuma is charged with. How? Well, an employee of the National Intelligence Agency (NIA) not only collated information pertaining to the trial of Jacob Zuma, but disseminated such information to a civilian. Even worse is that these recordings even took place.
    Consider that the claims that Jacob Zuma was a victim of a political conspiracy first emerged in 2005. Indeed, President Mbeki suggested a commission of inquiry to test the veracity of such claims and Cosatu and SACP proposed a political solution to what they considered a political problem (http://www.news24.com/News24/South_Africa/Zuma/0,,2-7-1840_1763574,00.html). So, by late 2007, it would be hard to argue that someone in the intelligence agency was not aware of claims of political conspiracy against Jacob Zuma. That the NIA continues with its surviallance of the head DSO. Yet, Mpshe claims “The National Intelligence Agency (NIA) confirmed to the NPA that it indeed had legally obtained recordings of many of the same conversations which were obtained during the course of its investigation into the circumstances surrounding the production and leaking of the Browse Mole report.” It would require incredible lack of foresite and intelligence to believe that this piece of information simply landed on the laps of the NIA by co-incidence.
    The NIA is not new to illegal surviallance with Billy Masetla suspended by the Intelligence Minister also in 2005 when he was accused of illegally spying on Saki Macozoma and others (http://www.mg.co.za/article/2005-12-15-spywar-emails-what-they-really-say). So, it was no secret by 2007 that there were those who believed the existence of a political conspiracy against Zuma. It is therefore hogwash that the NIA were simply doing intelligence on matters relating to the Browse Mole Report, when they knew for 2.5 years of the players implicated in this “political conspiracy.” It is therefore clear that the intelligence gathering on the NIA was designed solely to find the smoking gun.
    It seems Zuma and his legal team have always had this information and did not know how to best use it. With the devastating loss in the Supreme Court of Appeals and the impending elections, it was clear that the ANC and the Zuma team needed to up the anti. They knew that such information would be inadmissible in a court of law, but figured with everything that has happened, they had no choice but to go for broke. They had to however convince the NPA that such information was gathered legally, despite the obvious and the best excuse was the Brose Mole Report, whose theme, incidentally is exactly the “political conspiracy” against Zuma.
    Perhaps Mphse is aware of this, but found a way out of pickle or predicament. However, he said very little about any actions to be taken against the NIA agents who used state resources, which they then handed to a civillian with no security clearance.
    What is even more concerning is that the NPA would find nothing wrong with the NIA investigating someone and then publishing information they deem irrelavant to their investigation on the internet.
    Finally, how is talk of a political conspiracy against Jacob Zuma not part of the Browse Mole Report? The central theme of the Browse Mole Report is the political conspiracy against Jacob Zuma. The NIA happens to find information that proves this, and we are made to believe that this information does not form part of their investigation and can therefore be selectively declassified?
    I am not sure what is worse; the fact that the NIA had the temerity to make such a lie, or that Mpshe was dumb enough to believe it. What is however clear is that our justice system has been repoeatedly raped and in addition to Malema, Ndimande and Vavi holding her down, Mpshe is busy kissing her. Shame Shame Shame!!!
    Consider that Judge Hlophe was claimed to have known the workings of the Constutitional Court, when he approached Judge Nkabinde. Perhaps the same NIA agent that taped McCarthy/Ngcuka also taped the Constitutional Court. One wonders what part of South Africa Zuma’s spies do not have access to.
    http://www.news24.com/News24/South_Africa/Politics/0,,2-7-12_2343526,00.html

  • MFB

    Look, the image is not important. The reality is. The reality is that our government is now immeasurably more corrupt than it was five years ago. We cannot trust the judges, we cannot trust their courts, we cannot trust the law enforcement officers. We have doctors who lie to get corrupt businessmen off the hook because they have the right political connections, and cabinet ministers who back up the doctors.

    Civil society? Virtually all the so-called civil society organisations are in the bag with Zuma. They, like Zuma, are bankrolled by big business. So is the press. Neoliberalism has rolled to victory under the red banner (note how, for instance, Hogan’s murderous cheeseparing of the health-care budget has been greeted with screams of joy by the media).

    This is the end of the campaign over the last fifteen years to destroy the 1994 settlement, and it has been successful partly because so much money was involved (and hence so many people were compromised) and partly because so many people turned out not to have the convictions they professed.

  • http://www.ozoneblue.co.za ozoneblue

    MFB @ 8:59 am

    “Neoliberalism has rolled to victory under the red banner”

    I certainly hope that is not going to be the case. Apparently “the markets” have not moved much so this may not a good sign at all. I imagine we are heading for friction again between SACP, COSATU and the ANC.

  • http://www.ozoneblue.co.za ozoneblue

    And now the NPA may lay charges against Ngcuka and McCarty.

    Ngcuka being credited with the creation of COPE. I want to take a bet that the way that PdV and his beloved media is going to spin that is that the NPA is now being abused to persecute the ANC’s political enemies.

  • Mike Atkins

    Prof, let’s have a fresh discussion around the legal merits and procedures for a Review of the NPA decision.

    In my view the NDPP is legally bound to remain within the confines of the NPA Act and the Prosecution Policy – that is, he is empowered only by the terms of those documents in making the decision that he has made.

    My reading is that he did not attempt to relate his decision to any of the empowering provisions. He argued case law, but in a context where this could not be scrutinised – the appropriate forum for those considerations would be the application for a stay of prosecution.

    There is something in us that finds it difficult to accept that somebody could stand there and (effectively) lie to the nation. But he did.

  • Mike Atkins