Zuma spy tapes 'illegal'

The controversial spy tapes that got President Jacob Zuma off the hook on corruption charges have been declared illegal in a labour dispute between Willie Hofmeyr, head of the Special Investigating Unit, and his former deputy, Faiek Davids.

Ruling in Davids' unfair-dismissal application, Bart Ford, a senior commissioner of the Commission for Conciliation, Mediation and Arbitration, found that the recordings were illegally obtained and could not be used in the arbitration hearing.

"It is immediately apparent that the applicant's privacy has been botched . The recordings and evidence in this case was obtained illegally," said Ford.

Though the ruling related only to Davids' challenge, it raises questions about the N ational Prosecuting Authority's decision to drop criminal charges against Zuma.

In April 2009, acting NPA head Mokotedi Mpshe decided to drop corruption and fraud charges against Zuma, saving his political life and paving the way for him to become South Africa's president a short time later.

Mpshe had found that secret connivance between former Scorpions boss Leonard McCarthy and former NPA boss Bulelani Ngcuka in relation to the Zuma case amounted to "intolerable abuse", and that the charges had been influenced by the political infighting of the time.

NPA spokesman Mthunzi Mhaga yesterday said it was too early to comment on whether the previous decision not to prosecute Zuma would be affected by Ford's ruling.

"We may have to read the whole judgment/finding and see how that impacts on the NPA," said Mhaga.

However, former national director of Public Prosecutions Vusi Pikoli told The Times that his position had always been that the NPA should have allowed a court of law to rule on the authenticity of the tapes and whether they implied that the charges against Zuma were orchestrated.

"I've always had a problem with dropping the charges. The matter should have been settled in court rather than for some individuals to decide on their own," said Pikoli.

He said his argument remained that the spy tapes did not materially affect the case or the evidence the NPA had against Zuma.

"It's still unclear what tests they applied when coming to the decision [to drop the charges]. This ruling adds weight to the position I have always held. In some way I am vindicated," said Pikoli.

Last month, Hofmeyr testified that Zuma's attorney, Michael Hulley, allowed him and senior NPA advocate Sibongile Mzinyathi to listen to recordings of telephone conversations between Davids and McCarthy.

Hofmeyr and Davids have been locked in a legal battle since Hofmeyr fired Davids in November, purportedly because of a breakdown in trust and in their professional relationship.

Central to the alleged recordings - of which there is no transcript or copy - is a telephone conversation he is alleged to have had with McCarthy about the ANC's leadership battle. It was this conversation that led to Davids' sacking.

During this conversation - "in which Davids recounted a confidential conversation between himself, Hofmeyr and Ngcuka at East London Airport on December 15 2007" - Hofmeyr alleged that Davids accused him of being disloyal because he did not want to use the SIU to support President Thabo Mbeki's bid to retain the leadership of the ANC, and that Davids had said that "Hofmeyr's neutrality showed that he had switched to the Zuma camp".

Ford agreed with previous submissions by Davids' advocate, Ronald Sutherland, that there was no tangible evidence, other than Hofmeyr's testimony, that the recordings existed. Davids has continued to dispute the existence of the recordings and that he made the statements to McCarthy imputed to him.