Quote of the week

Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.

Justice Albie Sachs
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
27 March 2009

Curiouser and curiouser in Wonderland

Curiouser and curiouser!” cried Alice…. – From Alice in Wonderland.

You’ve got to love this country. Who needs The Bold and the Beautiful or Generations when you have the Zuma-saga to provide drama, mystery and intrigue? Now we are told (but can we believe this?) that Mr Zuma’s lawyers handed evidence – recordings of tapped phone conversations involving former Scorpions boss Leonard McCarthy and former NPA head Bulelani Ngcuka, among others – to the NPA earlier this year as part of their representations as to why Zuma’s corruption case should be dropped.

According to the Mail & Guardian the recordings “are understood to include” material showing then Scorpions boss, Leonard McCarthy, in a very bad light indeed.

He allegedly makes statements, including “Mbeki is my president, he will always be my president”. After Mbeki’s Polokwane defeat, he allegedly said: “We must wipe the blood off our faces … it is time for a come-back strategy.” Also in the recordings:

  • McCarthy allegedly refers to Mbeki’s instructions that neither Zuma nor police commissioner Jackie Selebi should be charged before Polokwane, as the perception of victimhood would work to their advantage;
  • There was reference to Zuma allegedly reneging on a 2003 deal to retire from politics in exchange for the dropping of the prosecution against him. A Zuma insider told theM&G that there had been such an approach to Zuma, but that it had gone nowhere because he was affronted; and
  • There was reference to Mbeki ordering a third draft of the Scorpions’ “Browse Mole” report, which investigated allegedly illicit foreign funding for Zuma, even though Mbeki’s office publicly condemned the report.

Am I the only one to think that, if this is true, it is very bad news not only for Mbeki and Zuma, but also the NPA? If true, it demonstrates that both camps in the ANC power struggle abused (or are still abusing) state institutions such as the NPA and the police or intelligence services in their fight for power. Good thing the ANC has always maintained that the organisation is unified and that talk of divisions are a “deliberate falsehood” spread by the counter-revolutionary media. Otherwise I might have been worried about the sanity and health of the ANC and the threat the organisation posed to – dare I say – national security.

But let us look at the law. The tapping of phones are regulated by the snappily named Regulation of Interception of Communications and Provision of Communication-Related Information (Act 70 of 2002). This Act prohibits the interception of communications without the consent of the parties – unless specific narrowly defined criteria are met.

In certain emergency situations – where there are  reasonable grounds to believe that a person has caused serious bodily harm or is about to do so, for example – law enforcement officials are authorised to tap phones without obtaining permission from a judge  but only if it is not reasonably practicable to obtain that permission in time – given the urgency of the matter. Even then those officials have a duty to inform a judge after the fact.

In most cases phones can only be tapped where a judge gives permission and then only where the  judge concerned is satisfied that there are reasonable grounds to believe that a serious offense has been or is being or will probably be committed or where national security is threatened. Even then, unless exceptional circumstances exist, a judge can only give such permission if it was demonstrated that:

there are reasonable grounds to believe that the interception will actually obtain the relevant evidence and other investigative procedures have been applied and have failed to produce the required evidence or reasonably appear to be unlikely to succeed if applied or are likely to be too dangerous to apply in order to obtain the required evidence and that the offence therefore cannot adequately be investigated, or the information therefore cannot adequately be obtained, in another appropriate manner.

If these tapes do exist, the first question will therefore be whether a judge has approved the eavesdropping and on what grounds he or she did so. Unless a judge had reason to believe that McCarthy, Ngcuka and others were threatening the security of the state or that Mbeki was planning a coup, for example, I would be surprised if such permission had been granted. There is therefore the very real possibility that the eavesdropping was in contravention of the Act.

Second, it is a criminal offense to hand over such information – even if legally obtained – to private individuals. Unless I missed it, (and let’s face it, the Act is not a model of clarity and simplicity) the Act does not prohibit a private person from receiving such information and being in possession of such information. This does not mean, however, that Mr Zuma’s lawyer and perhaps Mr Zuma may not have contravened the law because in common law it is an offense to assist another person in committing a crime and those who received the information obviously assisted by making it possible for the illegal handing over of the information. They will therefore also be guilty of a criminal offense.

If the reports are true, Mr Hulley (and maybe Zuma) have exposed themselves to criminal prosecution – which would not be a very wise thing to do unless one was sure that one would never be prosecuted because, well, because one had the police who had to investigate the crime in your pocket.

A third question is whether such illegally obtained information could be used in Mr Zuma’s criminal trial. Section 35(5) of the Constitution states that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. I am not a criminal procedure expert, but the jurisprudence seems pretty clear that such evidence will not be admissible in Mr Zuma’s criminal trial.

But would it be permissible in an application by Mr Zuma for the permanent stay of prosecution? I have no idea, but the question is, will such evidence assist Mr Zuma’s application? After all, Judge Harms recently stated in the Nicholson appeal that an ulterior motive alone will not make an otherwise lawful prosecution unlawful. Even if the tapes therefore show that the Scorpions boss was motivated by his loyalty to Thabo Mbeki, this in itself will not save Zuma from prosecution.

It therefore seems perplexing that Mr Zuma’s high powered legal team would have submitted this perhaps illegally obtained evidence to the NPA, thus exposing themselves to criminal prosecution. Moreover, if this is all true, Zuma and his legal team would have made a monumental political blunder.

In as much as Zuma had the moral high ground – at least in the eyes of some of his supporters – because of the perception that state institutions were abused to prosecute him, the use of illegally obtained evidence would completely undercut this position as it would demonstrate that Zuma was also abusing state institutions to try and avoid his day in court. In the process he would have managed to expose the NPA, but would have also destroyed the credibility and legitimacy of the security services, thus endangering our national security.

This means that all those Zuma supporters who enthusiastically cheered the firing of Vusi Pikoli because he allegedly endangered national security would – if they had even a smidgen of integrity – now have to  call for the removal of Mr Zuma as President of the ANC and for the prosecution of those who leaked the tapes and those who used it.

As I said, curiouser and curiouser, it gets.  Welcome to the mad hatters tea party. “Off with their heads, I say!”

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