My daily newspaper reports this morning that the investigation into how the NIA’s top secret ‘spy tapes’ got into the hands of President Jacob Zuma’s lawyer, Michael Hulley – which led to the (probably unlawful) scrapping of criminal charges against Zuma and ultimately to a change in government – has been completed.
The Inspector-General of Intelligence, Zolile Ngcakani, who has an ombud role and oversees all intelligence services in the country, confirmed that his office had finished its investigation, but said its findings could not be made public because “the report has not yet been released to the appropriate authorities”. He also revealed that the intercepting of phone conversations involving McCarthy had been conducted by the NIA “lawfully in terms of a judicial direction”.
If the South African Police Service and the National Prosecuting Authority (NPA) took seriously its job to uphold the law and to act without fear, favour or prejudice (in other words, if it adhered to the Rule of Law), it would be hard at work preparing for the prosecution of those responsible for breaking the law.
One or more members of the intelligence service or the SAP obviously broke the law by leaking the tapes to the Zuma camp. Hulley (or perhaps President Zuma, if he was shown to ever have been in possession of the tapes) also broke the law by receiving those tapes. This is because private citizens (which both Hulley and Zuma were at the time) are not allowed to possess such classified information.
Recordings by intelligence services of private conversations – even those made legally – are classified and it was clearly a criminal offense for Hulley to have been given the tapes and for him to have received it.
The investigation also established that the police were spying on McCarthy at the same time. “We have found that the crime intelligence division of the police intercepted the phone conversations of McCarthy as part of an unrelated investigation, and such interceptions were conducted lawfully in terms of a judicial direction,” Ngcakani said….
Ronnie Kasrils, who was the minister of intelligence at the time of the spy tapes saga, said he had no knowledge at the time that the NIA was tapping McCarthy and Ngcuka’s phones. Kasrils said that after the intelligence crisis of 2005/06, when former NIA head Billy Masetlha was found to have abused the intelligence powers by instigating unlawful surveillance and eavesdropping on politicians – and creating hoax e-mails – he had issued a directive to the NIA and to the minister of police that “any interception using the National Communications Centre facilities needs to be passed by me”. But the NIA and police apparently defied this ministerial directive. “The NIA were obliged to report this to me as minister. They never did. I knew nothing about it,” Kasrils said.
Ngcakani’s report should of course be sent to the Joint Standing Committee on Intelligence (JSCI ) in parliament, as this is the committee tasked with overseeing the intelligence services as one of the governments checks and balances against abuse by the intelligence services. The chair of the JSCI is Cecil Burgess, one of the more pugnacious and shady new members of the Judicial Services Commission and Burgess claimed yesterday that he was not aware that the inspector-general had completed the spy tape investigation.
Asked yesterday if he would call for the report, Burgess replied: “It depends on what the report contains. There are certain things we may not be entitled to see.” He correctly pointed out that it was a criminal offense for anyone to give transcripts of tapped phone conversations – even legally tapped one’s – to a member of the public or for a member of the public (which, as I have pointed out, both Hulley and Zuma were at the time) to receive such tapes.
One would assume that Burgess and the members of his committee will insist that the flagrant breach of the law by intelligence operatives and by Hulley (and perhaps others in the Zuma camp) will be thoroughly investigated and that the cuplrits will be prosecuted. They obviously must also be deeply concerned about the possible breaches of national security (remember Vusi Pikoli was fired for not taking national security into consideration when he issued a warrant for the arrest of Jackie Selebi).
They would also, surely, be concerned about the fact that the police and the intelligence services lied to the Minister and would want to establish on which grounds the police and intelligence services obtained a warrant to tap the phones of a member of the NPA (who happened to have been investigating the Police Commissioner at the time).
The law society should surely also be deeply concerned that Hulley criminally obtained classified information which he then used to the advantage of his client? We know that professional bodies do not always act vigorously against their own members. Who will forget how the Medical Association of South Africa for many years avoided taking action against the doctors who saw Steve Biko just before his death? But surely the law society – as keen supporters of the Rule of Law – will surely not let Hulley off the hook merely because he happens to be the President’s lawyer? That would be rather self-serving and, well, dishonest.
Of course, chances are slim that anyone will ever be held responsible for the criminal activity which formed the basis for the dropping of the fraud and corruption charges against our President. This is because in our post-Polokwane world, like in George Orwell’s Animal Farm, some animals are seen as being more equal than others. (And I am not even talking about Julius Malema who believes that “Arrive Alive” and speed limits are stuff that concerns only mere mortals – not VIP’s like himself.)
What surprises me is that us mere mortals, who can actually remember who we are and do not always have to ask everyone “do you know who I am” (because I have forgotten my own name), just sit quietly by while those who style themselves as VIP’s lord it over us. Don’t we have any self-respect? When will we rise up and tell those who act is if they are above the law (because they believe they are) that the law applies to them equally?
OK Maggs, I will send you one large slab of chocolate if Julius Malema is prosecutred or in any way “brought to book” for his speeding and abuse of police officers, and another large slab of chocolate if anyone is prosecuted in relation to the leaking of the tapes.
Short answer – No – nobody will be prosecuted.
Mike Atkins says:
November 9, 2009 at 12:32 pm
That’s a double headed coin in your favour – no fair!
Both those matters ought to be headed in the direction of the Public Protector especially now that we have a seemingly gutsy incumbent.
Prof, I would share your concerns if only your were consistent. Like the DA, since Mpshe dropping of charges, your attention has been more on “how did hulley access the tape” than ” what is contained in the tapes”. I have always maintained that as crucial as it is that a private citizen had access to the classified information – that is secondary. What is primary is the fact that abuse of state resources AND conspiracy against Cde JZ (which you’all had always dared us to prove, was proven beyond reasonable doubt in “what was contained in the tapes”.
So can you please ask: Who is the “big man at shell house” ?and subsequently demand his prosecution, together with that of Bulelani Ncguka, Lenard McCarthy and others, AND THEN ask how Hulley got the tapes and possibly demand his prosecution.
Of course Cde Malema will not be prosecuted!
And neither should he be.
He is not only the victim of racist enforcement — police officers will stop black drivers in circumstances where they would let whites race by.
More fundamentally, I see Cde Malema as also the victim of the imposition of a imperialist conception of velocity as representing an objective fact. It has long been the practice of colonialists to impose “scientific” standards and measures on Africans, with respects they are, of course, found wanting. Natives are treated as the Objects of the Eurocentric gaze, rather than Subjects possessed in themselves of inherit dignity.
(I owe these thoughs to Cmd Mbeki as expounded by Ronald Suresh Roberts. Many thanks to them both!)
Spuy, you are – as is always the case with people trying to escape from the facts – conflating issues. For the record: (i) I have OFTEN suggested that there might well have been some manipulation of the prosecutorial process and that this allowed Zuma (but not many others against whom a prima facie case also existed) to be prosecuted; (ii) This alleged manipulation (the “conspiracy” you talk of – a conspiracy you believe in without adhering to the “innocent until proven guilty” mantra claimed for Zuma) has NOTHING to do with President Zuma innocence or guilt. Prima facie there is a strong case to be made that Zuma is guilty of corruption as he took millions from Shaik, did favours for Shaik in return and lied about this (all facts confirmed by various South African courts). The “conspiracy” relates to the fact that President Zuma was going to be prosecuted (given that a strong case existed against him) while others against whom similarly strong cases could have been built were never prosecuted. (iii) We do not know what the tapes actually say. The NPA used selective snippets which suggest that Ngcuka and McCarthy chatted about the timing of recharging Zuma (a decision Mpshe said he actually took, so what the relevance of these chats are for what happened in the case is unclear). As yet there is not one single jot of evidence to suggest that any of the millions of documents that prove Zuma took money from Shaik, that he did favours for Shaik and that he lied about this, was fabricated. Maybe this will emerge (in which case I would clamour for a pardon for Shaik which would then have been wrongly convicted based on a spectacular conspiracy involving the fabrication of literally millions of financial documents and letters!).
(iv) Given the above, it is far from clear that a crime was committed by Ngcuka, McCarthy et al in actually pursuing the case against Zuma. (Maybe the crime was that they did NOT pursue cases against others – if any crime was committed). But we KNOW a crime was committed in the handling over of the tapes. We know this. Nothing will be done about it because the crimes were committed to get our President off the hook and to prevent a case where he would have had to dirpove the strong prima facie case against him. It seems to me this is rather a bigger scandal (from a Rule of Law point of view) than the scandal that there might have been a selective investigation and prosecution of individuals because of political considerations. Even then the scandal is not that Zuma was prosecuted. It was that others were not.
If you or anyone else, on the other hand, have any information about the fabrication of evidence against Zuma, I suggest you send it to me immediately. I would LOVE to Blog on it and expose the scandal of it. I will also pass it on to the NPA and launch a campaign for them to prosecute those responsible for the scandalous fabrication of evidence against our President. Please pass on the evidence.
Pierre De Vos says:
November 9, 2009 at 14:15 pm
“Please pass on the evidence.”
————————————————-
Don’t hold your breath!!
Hey Dworky!
What’s Pedi for “imperialist conception of velocity”
Spuy says:
November 9, 2009 at 13:50 pm
“I have always maintained that as crucial as it is that a private citizen had access to the classified information – that is secondary.”
What’s the difference between that and Nixon’s Watergate?
Mikhail Dworkin Fassbinder says:
November 9, 2009 at 14:02 pm
Thank you, I havent laughed like that in a long time
Mikhail Dworkin Fassbinder says:
November 9, 2009 at 14:02 pm
I agree with Rob – especially with this line and all: “Natives are treated as the Objects of the Eurocentric gaze, rather than Subjects possessed in themselves of inherit dignity.” … And then they go and use a blue light (also from Europe) to get away from it all (a whole gang of black, Eurocentric, traffic cops at a road block) – LOL!
Prof, This is similar to asking a rat to give birth to an elephant. This is one case(JZ CASE) that we need to walk away from or else do it properly and start at the beginning, ARMS DEAL. This piece meal approach is intended to target certain people depending on which side you are on.
Majority of SA’s would choose to do so(WALK AWAY) than humilating the ANC and destroying the gains of the last 14 yrs and delay upcoming transformation.
Gwebecimele says:
November 9, 2009 at 17:23 pm
Do I understand this correctly: We must ignore the truth, life with the lies and corruption, because the truth will reflect badly on the ANC?
This is for you Mikhail Dworkin Fassbinder: We have in South Africa a catch 22 to the 22nd power which borders on the boundaries of an enigma. In my long years to pensionhood I’ve never seen the like. Interesting, but painful.
A Rubik’s Cube is much easier to solve than the challenges faced by Democracy on the southern tip of Africa.
Dammed if we do and dammed if we don’t! Truth, honesty, integrity and dedicated service attributes are a pipe dream.
And every one of these questionable actions by those with power and authority are eating away at our freedom. They are crumbling hope like an angry child crushing a dry bisquit.
Lady Justice is still trying to rise, while exhausted to boot. Care to give her a hand?
Chris says:
November 9, 2009 at 18:04 pm
“Do I understand this correctly: We must ignore the truth, life with the lies and corruption, because the truth will reflect badly on the ANC?”
Seems to me that Gwebecimele is saying the opposite of that.
You know, all of the moral outrage about the “unfair” treatment of Mr Zuma reminds me of the story I heard about the Maquis de Sade.
He was the chap whose philosophy was that was IS, is RIGHT. In other words, there was no external or objective sense of right and wrong, but the way things were was the way they were meant to be. He applied this philosophy to the context of men being stronger than women…
Now the funny thing was that, when he was in prison (strange that his belief system should land him up there), he wrote letters complaining about how the prison warders mistreated him, and how wrong this was. Think about this for a bit…
Do those in power in South Africa have a philosophy of life in any way similar to that of de Sade? The other thought that I have is that our belief system will drive our behaviour, and so maybe we should be critically examining the belief systems tha have prevailed in South Africa since 1994.
Chris: Are you joking? Would all of We, “ignore the truth with the lies and corruption?” I think not! Sometimes its enough to witness, although it takes courage. I’m not suggesting faith based dogma here, but rather the rule of law and how we individually, and hopefully collectively, understand both it and its demands upon us.
@ Maggs
What’s Pedi for “imperialist conception of velocity”?
************
Maggs, I fear there may be no literal Pedi equivalent.
But I am sure there is a rich metaphorical discourse,
This statement
“…top secret ‘spy tapes’ …– which led to the (probably unlawful) scrapping of criminal charges against Zuma …”
could be the biggest understatement of the year.
I would have said: “…top secret ‘spy tapes’ …– which gave Mpshe and others the excuse of scrapping criminal charges against Zuma …”
That is because they always wanted to scrap the charges and were looking for some straw to clutch onto.
Tony,
I agree that the outcome of the charges was foreordained – it was only a metter of what mechanism would be used. As I have argued before, the surface veneer of legality is used as far as possible, but actually what happens and what is decided is done without reference to the law.
The sky has already fallen in – we just don’t see it yet. remember the boiling frog syndrome…
Mikhail Dworkin Fassbinder says:
November 10, 2009 at 0:44 am
“But I am sure there is a rich metaphorical discourse”
Could that be “Do you know who I am?”
Hey Dworky,
Elsewhere (Mikhail Dworkin Fassbinder says:November 10, 2009 at 0:35 am) you said :
“I can only refer you to the very impressive UCT study that Pierre quoted recently”.
Are you referring to the BRT saga?
BTW a close buddy got a great welcome in one of CTs suburbs – garbage dumped on his front lawn.
Thanks Maggs. Chris really missed my point.
Gwebecimele says:
November 10, 2009 at 11:51 am
No harm intended – I asked the question because I was afraid I may be missing the point.
@ Magg
“BTW a close buddy got a great welcome in one of CTs suburbs – garbage dumped on his front lawn.”
That’s nothing. I moved into Newlands after returning from exile. Second night there, two white phospherous grenades (unlicensed), were lobbed into my gazebo.
That was when I first understood that Cape Town’s cliques were incorrigible.
Mikhail Dworkin Fassbinder says:
November 10, 2009 at 12:10 pm
“I moved into Newlands after returning from exile”
From Orania?
Mikhail Dworkin Fassbinder says:
November 10, 2009 at 12:10 pm
“Second night there, two white phospherous grenades (unlicensed), were lobbed into my gazebo”.
Serves you right for cheating.
Hello hath no fury for a Dworkess scorned!
@ Mikhail et Maggs
LOL! I almost fell off my chair. Gee, thanks for the entertainment guys…
Wow!!
The news of Kader Asmal wishing to join as amicus curiae in the JSC/Hlope application is really startling.
What’s afoot?
It’s slowly turning into the most epochmaking case of the decade so far…. Civil society vs ????.
Sorry – here is the link:http://www.legalbrief.co.za/article.php?story=20091110083936376
Mike Atkins says:
The sky has already fallen in – we just don’t see it yet. remember the boiling frog syndrome…
———————————————————————————————————-
“President Jacob Zuma, chosen as Africa’s finest, had the prestigious African President of the Year award 2009 bestowed on him on Tuesday”.
http://www.timeslive.co.za/news/article188708.ece
Maggs,
Remember how Mr Mugabe was hailed and feted for so long after 1980, despite his vicious internal reign and the infamous 1982 killing of enemies. He was charming and erudite – this was no “bush African” (excuse the colonial-style paternalism).
Accolades, per se, are not a measure of worth. Mr Zuma has many good points (although some would that this is chiefly that he is not Mr Mbeki), but great evil was done to enable him to enter the Presidency unemcumbered. One cannot expect that there are no harmful repercussions for the nation in consequence.
One could use the analogy of the lion tht has tasted human flesh. When next will the Constitution be violated to preserve a favoured leader? When will the kingmaker decide that he must be king? And when te clamour of protest increases, what will be done to silence the dissenting voices?
Mike Atkins says:
November 11, 2009 at 9:12 am
There’s compelling arguments either way – I’ll skip why I supported and continue to be pro Zuma.
On the upside, the “President for life” regime came to an abrupt end – for that at least we have to be grateful to Zuma.
The alternative, as they say in the classics, would have been too ghastly to contemplate.
@ Mike.
Having said that, I am truly concerned about the role of the NIA re the tapes.
It’s disgustingly outrageous that that agency should be allowed to get away with what was done.
I am now extremely cautious with my telephone or electronic communications with friends, colleagues and associates in sensitive positions – it’s gone from intensive discussions to conversations about health and weather.
Our freedoms have been seriously curtailed – in that regard it’s like being back in the darkest days of the apartheid era.
Maggs,
Perhaps the “president for life” bid by Mbeki was merely a selfless attempt to spare the country from the mes we are in with the current regime (seeing that nobody else was up to challenging Zuma… just asking.
@ Mike.
The alternative to Zuma would have been more of
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=qw1096636320633B265
and
http://www.mg.co.za/article/2009-11-10-minister-reveals-shocking-figures-on-aidsrelated-deaths
Those anti Zuma should contemplate the alternative.
Mike Atkins says:
November 11, 2009 at 12:17 pm
What do you consider the “mess are in with the current regime”?
p.s. Nobody other than Zuma was capable of unseating the dearly departed.
we hate you for evil of the past (colonisation and apartheid), but we love your taxes and skills,you are not welcome to leave atleast for now, though slowly things are getting better, it might take 100years but atleast my children shall live without the shame of brutality committed by the forefathers