Spy tapes judgment: NPA now legally obliged to prosecute President Zuma (but don’t hold your breath)

The Supreme Court of Appeal (SCA) on Friday dismissed the appeal of President Jacob Zuma and the National Prosecuting Authority (NPA) against the High Court judgment which declared invalid the decision to drop charges of corruption, money laundering and racketeering against Zuma. This means the original decision to charge Zuma stands and the NPA is now required formally to reinstate the charges against him. Given the scathing criticism of the prosecuting authority contained in the judgment, all eyes will now be on Shaun Abrahams, the National Director of Public Prosecutions (NDPP), to see whether he will continue to protect the President.

The SCA judgment in the case of Zuma v DA (handed down on Friday) contains scathing criticism of the NPA, and the manner in which it dealt with the dropping of charges against President Jacob Zuma. The subsequent behaviour of NPA bosses during the court review of that decision, and the claim by the former acting head of the NPA, Mokotedi Mpshe, that he had lied to his own prosecutors, must further raise (I could not resist) some eyebrows.

After reading the judgment, any responsible citizen will also have to ask how President Zuma and his legal team managed to obtain the so called “Spy Tapes” (it could not have been obtained legally), and why Zuma’s legal representative, Michael Hulley, was never criminally prosecuted for his unlawful possession of transcripts of the intercepted conversations. At the very least, it must suggest that the intelligence service was abused to protect President Zuma from criminal prosecution.

But let us first turn to the reasons provided by the SCA for confirming that the original decision to drop charges against President Zuma was irrational and invalid, and thus (in the words of Navsa ADP) revived the prosecution of President Zuma.

First, it was conceded by lawyers for both President Zuma and the NPA during the oral hearing that the decision to drop charges against Zuma was invalid because section 179(5)(d) of the Constitution did not allow the NDPP to review and set aside his own decision to prosecute President Zuma. (The court left open the question of whether the NDPP could review and set aside his decision on other legal grounds, something that might be exploited by Zuma’s lawyers to try and keep the President out of jail.)

Second, the SCA held that the decision to drop the charges was not only unlawful and invalid because the NDPP did not have the power to review his own decision in terms of section 179(5)(d), but also because the decision was irrational. The exercise of public power by the NDPP must be rational, which in this case means that there should have been a rational relationship between the decision by the NDPP to drop the charges and the stated purpose for the decision.

The stated purpose for discontinuing the prosecution was to “preserve the integrity of the NPA and to promote its independence”. But as decision to drop the charges undermined the integrity of the NPA, the decision was irrational. There are several reasons for this.

The claim by the NPA that the decision to prosecute President Zuma was postponed until after the Polokwane conference because of political interference and that this necessitated the dropping of charges was objectively false. The indictment containing the charges against Zuma was only finalised on 27 December, more than a week after the conclusion of the Polokwane conference, so could not have been served before the Polokwane conference.

Moreover, the decision was based on the “spy tapes” which did not provide solid proof for the allegations of political meddling in the case. In any event, there are only hearsay evidence of the tape recordings of the telephone conversations which allegedly led to the dropping of charges. “[W]e have no admissible substantiation concerning the authenticity or accuracy of the recordings”.

Even if these tapes did prove that there was interference (which it does not), it would not have been of any legal import. This is because the SCA had previously held that a bad motive does not destroy a good case. A prosecution brought for an improper purpose, so said the SCA, is only wrongful if, in addition, reasonable and probable grounds for prosecuting are absent. This was not the case here as the prosecutors had always insisted that the “[c]ase against Mr Zuma is watertight”.

As Navsa explains in the SCA judgment:

It appears to me to be inimical to the preservation of the integrity of the NPA that a prosecution is discontinued because of a non-discernible negative effect of the timing of the service of an indictment on the integrity of the investigation of the case and on the prosecution itself. There is thus no rational connection between Mr Mpshe’s decision to discontinue the prosecution on that basis and the preservation of the integrity of the NPA. If anything, the opposite is true. In these circumstances discontinuing a prosecution in respect of which the merits are good and in respect of which there is heightened public interest because of the breadth and nature of the charges and the person at the centre of it, holding the highest public office, can hardly redound to the NPA’s credit or advance the course of justice or promote the integrity of the NPA.

The SCA judgment makes clear that the consequence of its decision is that the original decision to charge President Zuma remains valid and must now be implemented. The only way the NPA can avoid charging President Zuma is if the NDPP found another legal basis for reviewing and setting aside the (now valid) decision to charge Zuma.

This is in line with the statement of the High Court (whose judgment stands, now that the appeal has been dismissed) that President Zuma should now face the charges outlined in the indictment. The matter was put beyond any doubt (despite any false claims to the contrary) in the following passages from the SCA judgment:

Counsel on behalf of Mr Zuma, having made the concession, with the full realisation that the consequence would be that the prosecution of his client would revive, gave notice that Mr Zuma had every intention in the future to continue to use such processes as are available to him to resist prosecution…. Initially, counsel on behalf of the NPA argued that the statement by the court below, that Mr Zuma should now face the charges set out in the indictment offended against the doctrine of the separation of powers. When it was put to him, that in the event of a finding that the decision to discontinue the prosecution was liable to be set aside, the ineluctable consequence was that the decision to prosecute made by Mr Mpshe on 29 November 2007 was revived, he was constrained to concede that this was so.

The SCA judgment is also important for what it says about the integrity and independence of the NPA. In this regard, it provides a searing indictment of various former and current senior officials at the NPA.

The judgment shows that Willie Hofmeyr played a pivotal role in having the charges dropped and in trying to justify it afterwards. Hofmeyr contradicted himself in his own affidavit and made wild claims “much of it is based on conjecture and supposition”. The SCA concludes in rather damning terms:

He [Hofmeyr] is an experienced litigator who should know better than to present the case in the manner described above. Professedly advancing the cause of the NPA’s independence and integrity, he achieved exactly the opposite. One now has a better appreciation of the reluctance of counsel on behalf of the NPA to be associated with the affidavits filed on its behalf.

One of the most astonishing aspects of the case is that, confronted with evidence that Mr Mpshe had told his prosecutors that he alone made the decision to charge President Zuma (a fact that torpedoed President Zuma as well as the NPA’s case), Mpshe claimed that he had lied to his prosecutors. As the SCA tellingly notes:

If anything affects the integrity of the NPA, it is [Mpshe] lying to a senior prosecutor. The admitted deception compellingly affects the credibility of Mr Mpshe’s motivation for discontinuing the prosecution The court below was right to take into account against Mr Mpshe, the contradictory accounts as to who had made the decision to delay the service of the indictment.

Despite the many U-turns and strange changes in testimony from NPA leaders, and despite the fact that it has been clear for some time that the decision was invalid, the NPA (under the leadership of advocate Shaun Abrahams) decided to support President Zuma’s appeal in this case. As the SCA states:

[I]t beggars belief that the present regime at the NPA, on its own version of events, saw fit to defend Mr Mpshe’s decision as being rational…. A question one might rightly ask is why it took so long to come to the realisation at the eleventh hour that the case for both the NPA and President Zuma had no merit.

But the most unsettling aspect of the case may well be that the NPA dropped charges against Zuma based on alleged transcripts made by law enforcement agencies spying on the prosecuting authority. No evidence was provided to the court that this spying was done legally in terms of the Regulation of Interception of Communications and Provisions of Communication-Related Information Act.

Moreover section 43 of that Act only enables a disclosure of the contents of intercepted communications to another law enforcement officer in limited circumstances and prohibits the disclosure of these communications to others. The SCA notes that a crime was almost certainly committed when President Zuma and his legal team obtained these communications.

There is no indication of how the recordings came to be in the possession of Mr Zuma’s legal team. There are heavy penalties prescribed in relation to contraventions of the Act including those related to the prohibition against disclosure. The question of the admissibility of the recordings as evidence and the issues referred to above was never seriously addressed by the NPA. It ought to have been an issue to which the NPA paid greater and focused attention. Instead, the NPA allowed itself to be cowed into submission by the threat of the use of the recordings, the legality of the possession of which is doubtful.

It is shocking that neither Mr Hulley, nor anyone else in the Zuma camp, was ever prosecuted for this crime.

What will happen now? President Zuma’s legal team will make new submissions to Shaun Abrahams (who may or may not have the legal power to review the original decision to charge President Zuma), to try and get the NDPP again to drop the charges against him. Mr Abrahams may or may not exercise any discretion he might have in this regard in an impartial manner.

If – either for valid legal reasons or because the NDPP is not independent – Abrahams again drops the charges, that might be the end of the matter and President Zuma will be able to retire in peace. If Abrahams rejects the submissions of his lawyers, President Zuma will be formally indicted after which his legal team will almost certainly approach the court to request a permanent stay of prosecution.

This means that it is highly unlikely that, in the foreseeable future, President Zuma will see the inside of a court room in his capacity as a criminal defendant.

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