NPA boss lied about spy tapes: Ngcuka lashes out at Mpshe and Zuma

A fuming Bulelani Ngcuka has finally broken his five-year silence on the spy tapes - tearing into both President Jacob Zuma and the man who took the controversial decision to drop corruption charges against the ANC leader.

He has also sensationally accused Zuma's defence team of acting criminally to save their man.

The former national director of public prosecutions further accused the National Prosecuting Authority of withholding "critical information from all the parties involved".

He says this information may shed light on ex-prosecutions boss Mokotedi Mpshe's decision to drop corruption charges against Zuma a few days before the 2009 elections.

Ngcuka also expressed anger at the fact that, despite his having stepped down as NPA boss in 2004, Zuma has continued to "drag me into" his fight to avoid prosecution.

"I have been forced to remain a feature of this matter ... My involvement has nothing to do with any desire to manipulate."

Ngcuka was the first NPA boss to accuse Zuma of corruption, famously telling reporters that there was a "prima facie" case for the then deputy president to answer. He, however, declined to prosecute, saying at the time that he did not believe that the case was winnable.

Responding to the publication of the full spy tapes transcripts by the Sunday Times last week, Ngcuka once again denied that he conspired with former Scorpions boss Leonard McCarthy to have Zuma charged.

In the tapes Ngcuka can be heard talking to McCarthy about the political impact of charging Zuma before or after the ANC's elective conference in Polokwane from December 16 to 20 2007.

At the conference, Zuma was to compete with then president Thabo Mbeki for the ANC presidency.

Mpshe decided in 2009 that the tapes proved an abuse of prosecutorial process and withdrew the charges against Zuma shortly before the elections, paving the way for his presidency.

Ngcuka on Friday accused Mpshe of having "deliberately misled the public" when he announced that he dropped the charges because the tapes had shown that Ngcuka and other Mbeki supporters interfered politically with the decision to prosecute.

He further accused Mpshe and the NPA of:

Failing to take into account that Mpshe had already made the decision to prosecute Zuma on November 14 2007 and had decided on December 6 to delay prosecution, at least a week before the taped conversations, which only took place from December 13;

Releasing selective transcripts to make it appear that Ngcuka had interfered in the prosecution process;

Aiding and abetting Zuma's lawyer, Michael Hulley, in a criminal act by listening to classified tapes he possessed illegally; and

Engaging in "obsequious grovelling" to Zuma's defence team by listening to the tapes.

Mpshe hit back on Friday, saying he did not regret dropping the charges. "I believe I did the right thing," he said.

Ngcuka said both the decision to prosecute and delay prosecution were taken "long before" the taped conversations. This emerged from a memo written on December 6 2007 to Mpshe by Billy Downer, who led the team prosecuting Zuma.

"In the memorandum Downer records that Mpshe had informed the prosecution team on the day before that he had decided 'to delay the announcement of the decision to prosecute Zuma and Thint until after the ANC National Conference in Polokwane'."

Ngcuka points out that this damning memo was left out of the documents handed to the DA, who fought a five-year battle to gain access to them. This showed Mpshe's decision to stop Zuma and Thint's prosecution "had absolutely nothing to do with the taped conversations, but had everything to do with political expediency".

"He has gone out of his way to seek to put a strained and opportunistic interpretation to the content of the discussion, so as to justify the decision to withdraw the charges and abort the prosecution," said Ngcuka.

The DA's federal executive chairman, James Selfe, confirmed that the party had not received the memo. He said it was due to be handed further documents tomorrow.

This week the Sunday Times posted online the full transcripts of the taped conversations that allegedly informed Mpshe's decision.

The DA's battle to have them released cost it almost R10-million. The DA wanted the tapes and other records in order to launch a legal application to review Mpshe's decision to drop charges against Zuma and Thales. It expects the case to be heard in March.

Last week the Sunday Times also reported that Zuma allegedly accepted a bribe offer from Thint using the code words "Eiffel Tower", and revealed that the arms dealer was said to have bankrolled him with fancy clothes, free flights, hotel stays and legal fees.

Ngcuka added that it "should be an easy matter" for the NPA to audit decisions made by McCarthy to decide if he had shown any political bias related to the case against Zuma and Thales.

"In fact, Mpshe promised an investigation, and five years later we are yet to be confronted with the outcome of such an investigation," he said. "What this suggests is that Mpshe and those who were advising him knew that the outcome of such an investigation would defeat their predetermined objectives."

Ngcuka criticised the NPA, saying it had entertained "an unlawful approach" by listening to "illegally obtained recordings".

"The Regulation of Interception of Communications Act prohibits the disclosure of any information obtained through legally sanctioned interceptions," he said. "This Act is quite clear that this is a crime punishable by imprisonment of 10 years or a fine of R2-million or both. Further, our constitution prohibits partisan use of intelligence information ... Would they have allowed it on any other accused person who was not a high-ranking politician?"

Mpshe said on Friday he would not argue with Ngcuka "because that's his opinion and he is entitled to it".

He said there was no reason to charge Hulley for being in possession of classified tapes because "we had no reason to do so".

"Nobody had complained that Hulley was in possession of stolen property," he said.

He said Hulley later arranged to have the tapes declassified before sharing their contents with NPA officials.

He said Hulley had confessed that he got the tapes from a source from the State Security Agency, who he could not name.

But Selfe said Mpshe's decision was "irrational" and would not stand up to scrutiny in court.

"There was a lot of political pressure on Mpshe at the time and along comes a suggestion that this process was politically tainted and Mpshe fell on it."

He concurred with Ngcuka that the only evidence of collusion was between the NPA and Zuma's defence team.

Hulley could not be reached for comment.

investigations@sundaytimes.co.za