When acting prosecutions boss Mokotedi Mpshe announced that he was dropping serious fraud and corruption charges against President Jacob Zuma, he said it was the most difficult decision he had ever made in his life.
Back in 2009, Mpshe might not have guessed the extent to which the words he used would later be scrutinised by top lawyers engaged in a bitter battle to have his decision overturned.
Mpshe’s press statement was this week right at the centre of the DA’s court battle to get its hands on transcripts of the now infamous “spy tapes” that got Zuma off the hook on fraud and corruption charges.
With Zuma appearing to have perfected the ability to ride out scandals such as Nkandlagate and Guptagate unscathed, the mysterious spy tapes have come to represent a potential chink in the president’s armour, something seized upon by those who have come to see his presidency as synonymous with a culture of secrecy and corruption.
And a wealth of conspiracy theories around the tapes has emerged. The culmination of these must surely be the belief – fuelled by the seeming reluctance of the National Prosecuting Authority (NPA) to give up the tapes – that they simply don’t exist.
“Believing in the existence of those spy tapes is no different from believing that Moses Hlongwane is the son of God,” as one person aptly summed it up to Talk Radio 702’s Redi Tlhabi this week.
But if Mpshe is to be believed, the truth about the tapes is far less dramatic. Not only did Mpshe release transcripts of parts of the spy tapes when he made his announcement, but it appears Zuma himself was ready to go public with them.
Referring to the representations that Zuma’s lawyer, Michael Hulley, made to the NPA, Mpshe said that allegations about manipulation of the NPA were “substantiated by recordings of certain telephone conversations which (Zuma’s lawyer) intended handing into court during the intended application for a permanent stay of (Zuma’s) prosecution”.
This is seemingly at odds with what Zuma’s advocate, Kemp J Kemp, said this week. He argued the spy tapes were “part and parcel” of Zuma’s confidential submissions to the NPA and could not be revealed.
One could hazard two likely guesses as to Zuma’s about-turn, neither of which are mutually exclusive. The first is that this is merely part of a legal strategy to frustrate the DA’s case at every turn.
The second is that Zuma does not want the tapes to go public now because they contain information far more damaging to a sitting president facing an election than they would have been to an ANC president fending off the prospects of a lengthy prison sentence in 2009.
Either way, the purpose of the DA’s case is not to gain access to the spy tapes, but to review Mpshe’s decision to have corruption charges against Zuma reinstated.
The tapes are therefore unlikely to contain anything that will directly contradict the conversations between then NPA head Bulelani Ngcuka and then Scorpions boss Leonard McCarthy, during which the two apparently discussed the timing of corruption charges against Zuma.
But what the tapes in their entirety will do, as the DA’s Advocate Sean Rosenberg argued this week, is contextualise the parts that have already been released.
The tapes could therefore help a court in determining whether Mpshe’s “most difficult decision” was a rational decision in terms of the rule of law and whether Zuma will ever have to face the music.
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