The National Prosecuting Authority (NPA) has a duty to explain to South Africans how it arrived at a decision to quash corruption charges against President Jacob Zuma.
The North Gauteng High Court in Pretoria today ordered the NPA to hand over transcripts of the infamous spy tapes that got Zuma off the hook on corruption charges.
Judge Rammaka Mathopo rejected all of Zuma’s arguments on why the tapes as well as other internal NPA documentation should remain completely confidential.
The corruption charges against Zuma were dropped by then acting NPA head Mokotedi Mpshe in 2009, a decision the DA has taken on review.
The case today follows a Supreme Court of Appeal ruling last year that ordered the NPA to file a record of the decision.
Mathopo today ruled that “(The NPA) has a duty to explain to the citizenry why and how (acting prosecutions head Mokotedi) Mpshe arrived at the decision to quash the criminal charges against (Zuma) in pursuance of its constitutional obligations.
“It is incumbent upon (the NPA) to pass the rationality test and inform the public why it quashed the charges.
“In my view, the converse would make the public lose confidence in the office of the National Director of Public Prosecutions.”
Mothapho made these findings in relation to internal documentation of the NPA relating to the decision to drop corruption charges against Zuma, including memoranda, minutes and reports of meetings in which the issue was discussed.
Acting NPA head Nomgcobo Jiba and Zuma’s lawyers had contended that all such documents dealt with Zuma’s confidential representations to the NPA ahead of the corruption charges being dropped.
City Press understands that the DA’s lawyers expect these documents to be far more useful than the spy tapes when it comes to overturning Mpshe’s decision to drop the Zuma charges.
Mathopo ruled that Zuma “did not file any affidavit to explain how and why the disclosure of the memoranda, minutes, notes, reports would affect his right to confidentiality”.
He found that Zuma should have easily been able to itemise the documents protected by privilege because all this information was “peculiarly within the knowledge of (Zuma)”.
Similarly, Mathopo also rejected the argument by Zuma’s advocate, Kemp J Kemp, that the NPA was made aware of the spy tapes by Zuma’s lawyers and that they were thus “part and parcel” of Zuma’s confidential representations.
The DA argued that the transcripts were not confidential because Mpshe said in his press statement that Zuma’s lawyers had only allowed the NPA to listen to the copies of the spy tapes and had refused to give them access.
The NPA independently obtained copies of the tapes from the then National Intelligence Agency, which declassified them.
In Mpshe’s press statement, he says that he thus saw no impediment to releasing parts of the tapes which supported the theory that the timing of charges against Zuma was politically motivated.
Mathopo today said that Zuma, confronted with this allegation, “elected not to submit any evidence to gainsay the averments”.
“It is settled law that a bare or unsubstantiated denial will only pass muster where there is not option available to a respondent … (Zuma) imperilled his position in the circumstances by failing to put up any cogent explanation as to why he is entitled to the confidentiality”.
Mathopo also found that Zuma’s second argument, which was that Mpshe had actually breached his confidentiality when he released parts of the spy tapes during the press conference at which he announced charges would be dropped, was “without merit”.
“It is opportunistic for (Zuma) to now contend that there was a breach of confidentiality when he benefited from the alleged disclosure,” ruled Mathopo.
The NPA must now file the transcripts within five days.
With regard to the internal NPA documentation, Mathopo implemented an approach usually used in commercial tender disputes.
This involves ordering the NPA to file all the documents with the DA’s attorneys, with the parts that it contends are marked confidential.
The DA’s lawyers will not be allowed to disclose the contents of the documents to anybody, including the DA.
If the lawyers want to dispute any part of the evidence the NPA argues is confidential, it can then do so before a judge in a closed hearing.
Mathopo dismissed the DA’s application for NPA head Nomgcobo Jiba to be held in contempt of court for failing to file the transcripts.
He said that while Jiba had “misconceived” the NPA’s position as a “neutral party” in the dispute, is was not wilful or deliberate.
Mathopo agreed with the NPA’s submission that the Supreme Court of Appeal order had placed a duty on the NPA to allow Zuma to “raise concerns” about what the NPA was intending to file.
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