Quote of the week

[Nostalgia] is rarely the past as actually experienced, of course; it is the past as imagined, as idealized through memory and desire. In this sense … nostalgia is less about the past than about the present. It operates through what Mikhail Bakhtin called an ‘historical inversion’: the ideal that is not being lived now is projected into the past.

David Medalie
20 August 2013

Spy Tapes: A clear and simple case

In a constitutional democracy, an independent organ of state such as the National Prosecuting Authority (NPA) cannot delegate any of its constitutional powers to the President or his lawyers. Not in any matter. Never. Finish en klaar. Let alone in a private matter that has nothing to do with the Presidency but relates to the possible criminal prosecution of the person who happens to have been elected President. Yet, that is what the NPA did when it allowed President Jacob Zuma and his lawyers to decide – in direct conflict with the order of the Supreme Court of Appeal (SCA) – to refuse to hand over the so-called “spy tapes”. On Friday the North Gauteng High Court thankfully put a stop to this folly. At least for now.

Reading the judgment of Rammaka Mathopo in the case of Democratic Alliance v the Acting National Director of Public Prosecutions and Another it is clear that the NPA, as well as President Jacob Zuma and his lawyers, all wrongly believed (or claimed to believe) that Zuma – and not the NPA or the courts – should have the final say as to what material relating to the dropping of charges against Zuma should be handed over to the applicants.

It is unclear on what basis they came to this conclusion. As we do not live in an absolute monarchy (after all we are, thankfully, not living in Swaziland) the President is not supposed to believe (like King Louis XIV of France did) l’étatc’est moi, I am the state.

The applicant – the Democratic Alliance (DA) – wishes to have the decision of the NPA to drop criminal charges against President Zuma reviewed by a court of law on the basis that the decision was irrational. In order to advance a cogent argument in this regard, it needs access to all the material on which the decision was purportedly made. Zuma and his lawyers have been trying to block such access.

Recall that last year the SCA ordered the NPA (not Zuma or his lawyers) to provide the record of all the documents on which the decision to drop the charges against Zuma was taken to the applicants. However, the SCA provided an exception to this:

Such record shall exclude the written representations made on behalf of … [Zuma] … and any consequent memorandum or report prepared in response thereto or oral representations if the production thereof would breach any confidentiality attaching to the representations … The reduced record shall consist of the documents and materials relevant to the review, including the documents before … [Mokotedi Mpshe]… when making the decision and any documents informing such decision.

Zuma had made representations to the NPA that included references to transcripts of phone calls intercepted by what later was claimed to be the National Intelligence Agency (NIA). (Why the NIA would be bugging the phones of senior law enforcement officials who could not possibly have threatened the security of the state, but could have threatened the freedom of a politician called Jacob Zuma, is another matter.)

However, at that time neither Zuma nor his lawyers actually provided the NPA with a copy of the tapes or transcripts of the tapes. When he announced the dropping of the charges against Zuma Mpshe claimed that the NIA had confirmed the authenticity of the tapes, that they were lawfully obtained and that the NIA had provided the NPA with transcripts of the tapes. The tapes, therefore, never formed part of the written representations made on behalf of Zuma to the NPA and could therefore not possibly have formed part of the exception carved out in the SCA order.

The NPA refused to hand over the tapes (in effect most of the record of the case) on the basis that it was obliged to ask Zuma and his lawyers for permission to do so. Zuma and his lawyers claimed that the release of the tapes as well as other relevant material would breach his confidentiality and would threaten his right to a fair trial. On the basis of these unsubstantiated claims, the NPA refused to hand over the tapes and other relevant material. It did so on the “say so” of Zuma and his lawyers. So as a result the NPA delegated its power to make the decision on whether the relevant material breached the former accused’s confidentiality to the former accused person and his lawyers.

Would the NPA have been guilty of a similar dereliction of duty if the former accused had not been the sitting President of the country? I leave you, dear reader, to answer that question for yourself.

Judge Mathopo pointed out that President Zuma and his lawyers provided no evidence to support their claim that releasing the spy tapes would breach Zuma’s confidentiality. While the objective facts (that the spy tapes did not form part of the written or oral submissions made by Zuma) “cried out for an answer”, Zuma elected not to provide any evidence or arguments to show why he is entitled to keep the spy tapes confidential. In effect, Zuma relied on a baseless interpretation of the SCA judgment to claim a right to confidentiality on purely technical – instead of on substantive – grounds.

As the court pointed out, the naked claim that the tapes would breach Zuma’s confidentiality made no sense and was not backed up by any evidence. Large parts of the transcript were already in the public domain, as Mpshe quoted from it extensively in justifying the dropping of charges against Zuma.

At no stage during the public submission by Mpshe did Zuma raise the issue of privilege or claim that his confidentiality was being infringed on by Mpshe, and he did not raise breach of confidentiality before the SCA either.

As the court pointed out, the effect of Zuma’s contention regarding the confidentiality of the spy tapes is that Mpshe, in his public address justifying the dropping of charges, breached Zuma’s confidentiality or his privilege. “This submission is devoid of merit”, found the court and further pointed to the telling fact that Zuma’s lawyers had not raised the issue of confidentiality associated with the tapes before the SCA earlier. It was therefore “opportunistic” for Zuma to now contend that there would be a breach of his confidentiality if the content of the tapes were made public when he benefited from the disclosure by Mpshe.

Moreover, the court found that President Zuma and his lawyers had failed to provide any arguments or evidence why he would be prejudiced if the tapes were released. Neither did they provide any evidence or reasons why his right to a fair trial would be affected if the tapes (on which he relied to have the charges dropped) were made public. Zuma’s lawyers made bold claims about this, without showing why these claims could possibly be true. It was as if President Zuma and his lawyers believed that Zuma had a right to tell the NPA what information should be kept secret and what should not.

It is difficult to understand why … [Zuma] … raises the defence of confidentiality at this belated stage. … It is not appropriate for a court exercising its powers of scrutiny and legality to have its powers limited by the ipse dixit [say so] of one party [Zuma].

(As an aside, this impression seems to have been shared by the NPA, who may have believed that the private citizen against whom charges were dropped could dictate which parts of a court order to comply with if that private citizen in another capacity also happens to be the President of the country.)

Crucially, the court pointed out that ultimately, it was not for President Zuma or his lawyers to decide which documents should be disclosed to the applicants. The NPA, and not Zuma, were appointed the legal task to decide “without fear or favour” what documents would breach the confidentiality of the former accused. But as the SCA pointed out, the NPA also has a duty to explain why and how Mpshe arrived at his decision to quash the criminal charges against Zuma and needed to show that Mpshe acted rationally when he did so. It was therefore in the interest of the NPA to provide as much information as possible to the applicants.

Because the power to decide which documents should be provided (and which should not) does not lie with the former accused but instead with the NPA and ultimately, the court, the court ordered that not only the spy tapes, but also all other memoranda and documents relating to the decision to drop charges against Zuma had to be handed over to the applicants attorney within five days.

To protect the confidentiality of the submissions made by Zuma to the NPA before charges were dropped, the acting National Director of Public Prosecutions (NDPP) had to indicate which documents she believed should be kept confidential. (Although she could not claim that the spy tapes or transcripts of the spy tapes were confidential, because the court explicitly and unequivocally ordered its release.)

The judgment makes clear that neither President Zuma nor his lawyers have a say in the matter. The documents so marked by the NDPP cannot be disclosed to anyone, including the DA. But if the lawyers for the applicant believe that the NDPP wrongly marked some documents as confidential, they have a right to approach a judge in chambers to rule on the matter.

In other words, the judgment – wisely in my view – affirmed that in the case of a dispute about the matter, ultimately it was for a judge to decide whether the release of any documents would breach President Zuma’s confidentiality or would potentially threaten his right to a fair trial. This makes sense, because obviously a person potentially facing more than 700 criminal charges would do (almost) anything to ensure that those charges are not re-instituted.

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