EXPOSED: How Zuma got off the hook
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South Africa's top prosecutors were overwhelmingly in favour of pressing ahead with the corruption case against Jacob Zuma and had dismissed the so-called "spy tapes" as irrelevant just days before the charges were sensationally dropped in April 2009.
This is revealed in more than 300 pages of explosive internal e-mails, memos and minutes of meetings leaked to the Sunday Times.
The documents raise questions over why then-prosecutions boss Mokotedi Mpshe ignored all their advice and let Zuma off the hook, citing the "spy tapes" as evidence that Zuma was the victim of a plot.
They also lift the lid on the high drama and intense internal wrangling that put SA's criminal justice system on trial in one of the most dramatic episodes of the country's recent past. The documents reveal for the first time that the Scorpions team prosecuting Zuma:
- Believed Zuma was trying to "blackmail" them into dropping the charges by threatening to release information on the tapes that would be embarrassing to the National Prosecuting Authority (NPA);
- Urged Mpshe several times to proceed with the prosecution after being briefed about the "spy tapes";
- Pointed out "fatal" legal flaws in Mpshe's decision not to proceed; and
- Questioned former NPA boss Bulelani Ngcuka twice about the tapes. Ngcuka said the same people who accused him of being an apartheid spy were behind these tapes.
The documents include minutes of a briefing held in Mpshe's boardroom on March 18 2009 by asset forfeiture unit head Willie Hofmeyr and Pretoria prosecutor Sibongile Mzinyathi - the only two NPA officials who listened to the tapes.
The minutes reveal that Zuma's lawyer, Michael Hulley, approached Hofmeyr with "new evidence" that he said warranted dropping the charges against Zuma - phone taps of Scorpions boss Leonard McCarthy - that he asked Hofmeyr to listen to.
Hulley did not disclose evidence of these "spy tapes" in written representations he made to the NPA on Zuma's behalf weeks earlier. The tapes "seemed to be" from the National Intelligence Agency and would be used by Hulley to argue for a permanent stay of prosecution.
According to notes made by Hofmeyr and Mzinyathi while they listened to the tapes, the recordings reveal McCarthy was "part of a campaign for Thabo Mbeki" to win the ANC elective conference in Polokwane in December 2007, which Zuma won. But Hofmeyr and Mzinyathi's notes also state that Mbeki had told McCarthy not to charge Zuma and former police commissioner Jackie Selebi before Polokwane.
Notes from the meeting say the team prosecuting Zuma "was not aware of this manipulation and conspiracies - they followed the evidence. Unfortunately, I doubt if any will ever believe them. This is a sad, sad day in the history of SA!!!".
These new documents intensify the mystery of why Mpshe would take a decision diametrically opposed to his senior prosecutors working on the case, and is likely to add weight to a case brought by the DA to have it reviewed.
They reveal that on at least two occasions after the "spy tapes" briefing - on March 20 and on April 2 2009 - prosecutors sent a memo to Mpshe urging him to press ahead with the Zuma prosecution. Attached to one of the memos was a letter prosecutors expected Mpshe to sign and send to Hulley, rejecting the "spy tapes" as a reason for dropping charges.
"A decision not to prosecute ... would undoubtedly be regarded by many as simply caving in to political pressure," the letter, which was never signed by Mpshe, reads. "After anxious consideration, I have concluded that my decision to indict your client in 2007 was not influenced, improperly or otherwise, by McCarthy."
The letter also states that Hulley's threat to include allegations of political interference based on the "spy tapes" in a court application, and his "observations that this would be a great embarrassment to the NPA and the persons concerned" amounted to "blackmail".
The new documents unearthed this month show Zuma's chief prosecutor, Billy Downer, former KwaZulu-Natal Scorpions boss Anton Steynberg and two top jurists they consulted - Wim Trengove and Andrew Breitenbach - were unanimous the "spy tapes" should not give Zuma a free pass.
"We consider that the oral representations [from Hulley about the tapes] do not change our recommendation [to charge Zuma] and we stand by it," Downer states in a memo on behalf of the prosecution team sent to Mpshe on March 20 2009.
"To accede to [Zuma's] representations, apart from being contrary to the merits and the interests of justice, would not be appropriate. Such a course of conduct, however weighty the reasons given in support thereof, will forever leave the impression that the NPA has become a pawn of the political establishment and cause irrevocable damage to public confidence in the system of justice."
Mzinyanthi - the only other person who listened to the tapes with Hofmeyr - and Thanda Mngwengwe, the former Scorpions boss who charged Zuma in 2007 - also reportedly wanted Zuma's prosecution to go ahead despite the "spy tapes".
Despite this, on April 6 2009, Mpshe announced that charges against Zuma would be withdrawn because the "spy tapes" contained evidence that McCarthy and Ngcuka had conspired to remove Zuma from office.
Only Hofmeyr apparently believed that McCarthy's "alleged prosecutorial misbehaviour" warranted dropping the charges against Zuma, according to one memo.
After Mpshe made his bombshell announcement of dropping charges , a flurry of e-mails and memos reveal how unhappy other top prosecutors were with his decision. In one sent to Mpshe on April 14 2009, setting out the team's reservations, Downer states that the "legal motivation" for the decision is "questionable and may be vulnerable on review".
He criticises the prosecution boss for relying "heavily" on the "abuse of process" doctrine in the UK and Canadian law, without any reference to SA law. "We are concerned that this doctrine may have been inappropriately applied without due consideration of its applica-bility in our law."
The key issue, whether the abuse of process would have prevented Zuma from having a fair trial, "was not even addressed", the memo states. Moreover, two key questions - whether McCarthy's manipulation of the prosecution improperly influenced Mpshe's decision to charge Zuma after Polokwane, and whether he still considered that the decision to prosecute was correct - were never answered. "This failure appears to us to be fatal to the correctness of the decision," the memo states.
The documents also reveal fascinating details never published before about McCarthy's role in manipulating Zuma's prosecution for political ends.
One memo, titled "Combined team synopsis of the November/December 2007 decision to prosecute", states that Scorpions investigator Johan du Plooy objected to McCarthy's plans to serve summons on Zuma at Nkandla on December 26 2007. Du Plooy considered this "outrageous and unsafe", and the plan was shelved. Two days later he joined the sheriff in serving the summons on Zuma at his Joburg residence.
E-mails also reveal that after being briefed about the "spy tapes" Mpshe repeatedly tried to reach McCarthy at the World Bank, where he now works as vice-president of integrity, to get him to answer the charges of being part of a political conspiracy.
"It would appear, on the face of it, that the recorded conversations may damage your integrity," Mpshe wrote in one e-mail. "They include that you may have been party to a conspiracy to use the NPA's prosecution process irregularly to attempt to influence politics."
McCarthy eventually replied that he deemed Mpshe's questions "irrelevant" and declined to answer them.
DA chairman James Selfe said this week that the NPA was clearly in contempt of court by not handing over the "spy tapes", which Mpshe said in 2009 were independently obtained and declassified.
Despite the court order given in March, the DA went back to court in September to force the NPA to hand over the tapes - a case only likely to be heard early next year. "We'll go to the Constitutional Court if we have to. We'll go to the gates of hell to get this," said Selfe.
Hofmeyr and Downer referred all questions to the NPA, which declined to answer them. Asked if it had caved in to blackmail by dropping charges against Zuma despite strong opposition within its own ranks, NPA spokesman Bulelwa Makeke said: "This is a sideshow that the NPA would rather not be part of at this point, as it is still awaiting a court ruling on this matter."
Ngcuka failed to answer questions he asked to be sent to him. McCarthy and Hulley didn't reply to e-mails or messages left for them.
investigations@sundaytimes.co.za
SHARE YOUR OPINION
If you have an opinion you would like to share on this article, please send us an e-mail to the Times LIVE iLIVE team. In the mean time, click here to view the Times LIVE iLIVE section.SuiGeneris
Posted 181 days agoSuiGeneris
Belinda Benson, Ingonyama Trust's property manager, confirmed that as far as she was aware no bond had been registered against Zuma's Nkandla property at the deeds office.
CowTeng
m1si2zi3nzo4
Posted 181 days agoNow we are back to square one, with the task of finding out who we are, in the first place, before we can determine who we 'want to be'. It will not be easy when some want us to revert to thousands of years ago, which no one has but a vague idea of. Critically, though, we have come to realize, much to everyone's dismay, that the vast jigsaw puzzle we were all eager to 'reconstruct', acutely aware that a big majority of its pieces were missing, and that many of those which had survived, were broken, is even more complicated than we thought, because no one has the vaguest notion of what this puzzle would look like, if we were to be fortunate to reconstruct it.
Worse still, we have been pushing this brand of stupidity down the throat of the whole world, which started establishing its identity long before us. And we are arrogant in 'telling' the world something we have no idea about. Even giving it the finger, when it ignores our 'wisdom'
SuiGeneris
Posted 181 days agom1si2zi3nzo4
AthollCanterbury
Rubbernecking on the freeway usually involves an adverse incident (accident) in the oncoming traffic lane that increases the risk for traffic in the accident free lane.
In this case, however, there is no accident in the oncoming lane.
The honourable Justice Khumalo ::}
... is enforcing the Constitution and the Bill of Rights (Freedom of expression)
... is applying the law (Bill of Rights)
... is enforcing the principle of 'clean hands' (action {to publish} that is lawful, reasonable and procedurally fair)
Will there be rubbernecking of the Judge .... by her own pears ..... and by her seniors especially when the 'accused' (president) is the very person/office that has the authority to appoint/promote Judges ?? --- the rubberneckers ?
Well the lane that the Hon Justice Khumalo negotiates is a narrow, deserted lane, but is is the straight lane.
The risk in the lane of the Rubberneckers increases the likelihood of a multiple people pile-up in their own lane.
HermanBrümmer1
Posted 181 days agoUnbelievable to think that our president is a fraud, a sharleton, a con-artist who has lied and deceived the whole country to enrich himself.
Are there no moral leaders in the ANC?
BrianExmachina
It's one thing having a bunch of rotten apples as leaders, it's quite another if the majority of South Africans support their criminal activities and see nothing wrong with it. At this stage I can't imagine what Zuma or the ANC would have to do to lose support. The things they have gotten away with is criminal and outrageous. In other countries there would have been enormous public outcry. Here not only is it accepted, but encouraged, and increases their popularity. Short of strangling a naked teenage hooker to death on live TV while snorting cocaine and screaming blasphemous lines from The Exorcist at the top of his lungs, I can't think of anything Zuma or his ANC wouldn't get away with. And even then some might speak of his tribal right to do so as the big chief of the Kingdom of South Africa.
Face it, we've had rape allegations, showers to prevent AIDS, corruption allegations, illegitimate children, suppression of freedom of speech, interference with the NPA, the collapse of the education system, the attempted introduction of e-tolling in Gauteng, Nkandlagate, travelgate, a murderer as head of Crime Intelligence, corruption on a scale never experienced before (billions, not millions being stolen), the collapse of public healthcare, Joburg billing crisis, municipal bankruptcy crisis, power crisis, the promotion of corrupt officials, drunkard as government spokespersons, the secrecy bill, the Marikana massacre, and the list literally goes on and on. I could type pages and not run out of things that have gone wrong under the ANC. Yet their supporters love them more than ever.
OBigOneKenobi
>> Sadly the problem isn't the ANC leaders, but the people who keep electing them.
Spot on. Unfortunately, this is worse than having inept leadership.
SuiGeneris
100 % of the the nation knows this, yet 66 % of them think it is cool to have such a ''honourable'' president and they condone his actions at ballot box !
Shouldn't this also tell us a lot about all these ''honourable'' people we see in our daily lives !?!?
IvanNel
honeycomb
Our people cannot understand this things, our radio stations are not really transmitting message as raw as it is. The leaders uses this platforms to defend themsleves and majority of people, "uneducated or illitrate" though i dont like using these words, begin to symphaphise with them, see their leaders as victim of journalist or the rich and goes on to vote for them.
It is time for other journalism and opposition starting using the language of the people of SA. The langauge people can understand, print media should start transalating the news so that every person, even the lowest person who can at least read, will be able to understand. This will mark the change, people will bve able to make informed decision, will eassily understand when u say so and so did this or that. Probably when they go to vote, they will make an informed decision.
VladWasinsky
charl.ton
Posted 181 days agoZinhleManzini
Posted 181 days agoThe attention would be better placed focusing on why are the infrastructure programmes are delayed.
For me this is the biggest news. Focus on the process to get this thing going. Not to come in when there is controversy. For example big companies are busy positioning themselves to carve the cake among themselves unethically.
Co A agrees to go for project Z and Co B for project X. Both companies then agree to go through the motions of tendering spending what seems to be huge monies to put the bids together, i would also spend a R100m to bid if I know I will get R2billion in overcharging in the project I am guaranteed to get.
As the projects progress and finish, there will be whiff of a politician who has got a million here and there, the media would be hysterical, when the biggest taxpayer screwing snakes, would be sitting on billions of unethical margins.
Try change focus for once.
BokfanSaffer
BrianExmachina
katrynVBengal
I wish I could transport every single ANC voter to Nigeria for a day so that they can experience what happens when you tolerate corruption, participate in corruption and place ubuntu above the law.
SuiGeneris
You and Zuma are birds of a feather.
BokfanSaffer
Posted 181 days agoBoyo you sound heartbroken. Thats how I felt when Julius Malema and the Yob league got this thug into the Tuynhuys.
Hopefully this experience will realign our political consciousness with the principles enshrined in our constitution and not with the narrow selfish interests of the criminal ruling class.
m1si2zi3nzo4
m1si2zi3nzo4
Posted 181 days agoBokfanSaffer
BenSpreeth
Posted 181 days agoMaweza_PhilipNkutha
AllyMathye
inside-the-matrix
Posted 181 days agoChico
Posted 181 days agoSecretVoice
Posted 181 days agoCowTeng
Posted 181 days ago