An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Some facts are difficult to deny: surely, somebody must be lying in order to prevent the full recordings – used to justify the dropping of fraud and corruption charges against Zuma – from being made public. One can only wonder what damaging revelations about Zuma might be contained in these recording: more information of extra-marital affairs; more information of his possible involvement in corruption and fraud; information of the involvement of foreign governments in bankrolling Zuma and his cronies? Whatever the tapes might contain, Zuma and his allies are clearly anxious to prevent the public (as well as ANC voting delegates) from finding out.
Earlier this year the Supreme Court of Appeal (SCA) ordered the National Prosecuting Authority (NPA) to “make available whatever was before” the NPA when it decided to drop charges against Zuma to the applicants in the case. The applicants need the information to help them in their review application of the decision to have the charges against Zuma dropped. The NPA has a legal duty to provide all such information, with the exception of the confidential representations made by Zuma and his legal representatives to the NPA. The latter information can only be revealed if permission is given by Zuma and his lawyers.
The NPA inexplicably transcribed all the tapes (which at the time the NPA claimed to have obtained from the National Intelligence Agency – not from Zuma or his lawyers) and then handed them over to Michael Hulley, President Jacob Zuma’s personal lawyer. Hulley is now refusing to hand back these tapes to the NPA, apparently on the basis that the tapes form part of the confidential submissions made to the NPA before charges were dropped against Zuma.
The problem is that this assertion stands in direct contradiction to the statements made by then acting National Director of Public Prosecutions (NDPP), Mokotedi Mpshe, when he justified the dropping of charges against Zuma.
Somebody, as I have said, must be lying.
NPA spokesperson, Bulelwa Makeke, stated over the weekend that it would be in breach of the SCA judgment to hand over the tapes in the absence of consent by President Zuma’s legal representative, ostensibly because the tapes were part of the confidential representations made by Zuma and his lawyers to the NPA.
But these claims cannot be squared with the statement made by Mpshe to justify the dropping of charges against Zuma. At the time, Mpshe noted that the NPA was “given access to certain recordings” by Zuma’s legal team as part of its representations. But these recordings were not the ones on which the NPA relied to drop charges against Zuma. As Mpshe explained at the time:
Although the recordings sounded authentic, the NPA decided to approach agencies that have a legal mandate to intercept telephone calls with a view to ascertaining whether they may have legally obtained recordings of the same conversations. 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. NIA indicated that it was able to share these legally with the NPA for the purposes of the investigation and for reaching a decision in this matter. Thus the NPA was able to make transcripts of the relevant portions of the recordings for this purpose and NIA has declassified these transcripts as they are not directly relevant to its own investigation. The NPA is thus confident that its decision is based on information that was intercepted legally and obtained legally by the NPA. The transcripts contain material that was of vital importance in the NPA reaching its decision, and the NPA has decided to make its contents public as it believes it is in the public interest to do so. The transcripts have been declassified, the NPA believes that there is no legal impediment to its doing so.
This means that while Zuma’s lawyers provided the NPA with illegally obtained tapes, the NPA did not rely on these illegally obtained tapes to justify the dropping of charges against Zuma. It obtained different tapes from the NIA which covered much of the same ground as the illegally obtained tapes presented to the NPA by Hulley, had them declassified and used extracts from these independently obtained and declassified tapes to justify the dropping of charges against Zuma.
Unless Mokotedi Mpshe did not only plagiarise a later overturned judgment from a Hong Kong court to justify the dropping of charges against then Mr. Zuma, but also blatantly lied about the fact that the NPA legally obtained separate recordings of various conversations from the NIA, the current NPA claims cannot be true and its actions cannot be lawful.
If the NPA legally obtained the tapes of various conversations (also covered by the illegally obtained tapes presented to the NPA at the time by Michael Hulley) from the NIA and if they relied on these tapes (which were then declassified) to justify the dropping of charges against Zuma, then the tapes could not possibly form part of the confidential submissions made by Zuma and his legal representatives to the NPA.
If this is so, then the tapes and the transcripts of them should never have been handed over to Hulley in the first place. This would mean that those who decided to hand over the tapes to Hulley did so in a deliberate attempt to avoid compliance with a court order and would be guilty of contempt of court. The person or persons who made the decision would then probably also be guilty of defeating the ends of justice – all in an attempt to get President Zuma re-elected at Mangaung.
Hulley, on the other hand, would be in possession of tapes that he has no right to possess. He should then never have taken possession of the tapes. His refusal to hand back the tapes to the NPA in a desperate attempt to protect his client (President Zuma) from damaging revelations made in the tapes would then possibly also constitute a criminal offense.
Either Mpshe was lying when he claimed that the NIA had provided it with legally obtained and declassified tapes that covered much of the same ground as the illegally obtained tapes presented by Hulley to the NPA, or the NPA is flouting the law and is being deceitful and dishonest in order to protect President Zuma and ensure his re-election at Mangaung.
The NPA owes us an explanation. Why is there such a glaring contradiction between Mpshe’s version of events and the version now peddled by the NPA? If Mpshe lied, the NPA needs to say so and Mpshe will have to face an impeachment hearing. If his version is true, then the current leadership of the NPA is so contemptuous of public opinion and of the law that it is prepared to lie and to disobey court orders in order to protect the President.
I would guess that the content of the tapes will be revealed at some point in the future. The courts will eventually ensure this. Those who are doing everything they can to prevent the tapes from being made public are probably betting that they will only have to stall until December. After that Zuma would have been elected for another term as President of the ANC and he would in effect be untouchable.BACK TO TOP