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The DA this week asked the North Gauteng High Court in Pretoria to review and set aside a controversial decision in 2009 by Mokotedi Mpshe, who was the acting head of the National Prosecuting Authority (NPA) at the time, to discontinue the prosecution of President Jacob Zuma on charges of corruption after listening to the “spy tapes”.
The spy tapes are intercepted telephonic conversations and SMSes between various officials in the justice cluster who were controversially deliberating on the timing to serve Zuma’s indictment.
Their conundrum: To charge Zuma before or after the ANC’s 2007 elective conference in Polokwane? At stake: Who will be the next president of the ANC and the country?
Twenty four conversations between then Scorpions boss Leonard McCarthy and Bulelani Ngcuka, former head of the NPA, this week took centre stage in the DA’s effort to “label the timing of delivering the charges as irrelevant”. Here are the main arguments made by the parties in the case:
Advocate Sean Rosenberg SC, for the DA
. Rosenberg conceded that the court cannot order the NPA to prosecute and can only refer the case back to the NPA to make a new decision.
. Argued the “political influence was limited” to the timing of when the indictment should be served, therefore the “influence on what took place was relatively insignificant in the broader scheme of things”.
. Said the deliberations “seemed to have actually benefited Zuma”, rather than harmed him.
. Mpshe was “emotional and impulsive” and came to an “irrational” conclusion.
“It appears Mpshe’s decision reflected his own sense of betrayal, anger and outrage over McCarthy’s conduct. Mpshe was outraged, but didn’t consider whether this was such egregious abuse that it violated Zuma’s rights.”
. Mpshe should have “weighed all options and facts”, including “the means and ends test”, the seriousness of the charges, as well as “other ways of dealing with McCarthy”.
Advocate Hilton Epstein SC, for the NPA
. Epstein cited that in international case law, the decision to prosecute “must always be rational, even though it is seemingly unreasonable. If it is rational, the decision of [Mpshe] stands”.
. “Is it therefore not better to let one person [Zuma] go, even if the merits [of the corruption case] seem to be good; is it not better to show the public that our prosecutorial authority will always remain independent, that it will not be influenced?
. We cannot let the pursuit of one person trump the independence of the NPA.
“There may be cases before each of you, justices, where there is strong evidence ... but if it is impermissible ... you have to ignore it and that person has to walk free. Why? It is the rules we live by, it is the rules that give justice in the end.”
Advocate Kemp J Kemp SC, for Zuma
. “You may not like that Mpshe dropped the charges [against Zuma], but you cannot say that the decision was irrational.”
. Mpshe’s decision to discontinue the Zuma prosecution “sent a message to politicians that never again will the NPA use its powers to try to decide who will be president”.
. The fact that McCarthy’s scheme to get [Thabo] Mbeki re-elected as ANC president in Polokwane failed doesn’t change the fact that the NPA misused its “enormous powers” to “secure a political result”.
Do you think the court should dismiss the application to review the decision by Mokotedi Mpshe to discontinue the prosecution of Zuma?
SMS us on 35697 using the keyword SPY and tell us what you think. Please include your name and province. SMSes cost R1.50
