Recounting eight years of the spy tapes saga as Zuma returns to court

13 October 2017 - 10:13 By Ernest Mabuza
Mokotedi Mpshe, as National Prosecuting Authority acting head in 2009, announces his decision to drop corruption charges against Jacob Zuma
Mokotedi Mpshe, as National Prosecuting Authority acting head in 2009, announces his decision to drop corruption charges against Jacob Zuma
Image: VELI NHLAPHO

It has been eight years since Mokotedi Mpshe took a decision to discontinue the criminal prosecution of President Jacob Zuma relating to alleged crimes of corruption.

In coming to his decision in 2009‚ the former acting national director of public prosecutions relied on intercepted conversations between his predecessor Bulelani Ngcuka and the head of the defunct Scorpions Leonard McCarthy.

The recorded conversations were commonly referred to as the “spy tapes”.

Zuma was facing 783 counts of fraud‚ corruption and racketeering.

The exchange between Ngcuka and McCarthy happened shortly before the ANC’s Polokwane conference in December 2007‚ when Zuma was elected the new leader of the African National Congress.

The case‚ or some aspects of it‚ have been dealt with by the High Court on at least three occasions and the SCA will also deal with the matter for the third time on Friday‚ when it is due to deliver judgment.

Below is a look at some of the key dates and judgments since Mpshe’s decision in April 2009 and the Democratic Alliance’s efforts to have Mpshe’s decision reviewed.

-April 1 2009: Mpshe announces his decision to discontinue prosecution against Zuma.

-May 2009: the Democratic Alliance launches a High Court application in Pretoria to review and set aside Mpshe’s decision.

For the review to take place‚ the National Prosecuting Authority (NPA) had to provide the party with the record of proceedings relating to the decision taken by Mpshe.

However‚ the NPA raised preliminary points in court‚ arguing that the DA had no right to bring the application and that Mpshe’s decision was not reviewable under the Promotion of Administrative Justice Act.

-February 22‚ 2011: Pretoria High Court Judge Natvarlal Ranchod agrees with the NPA that the DA has no standing to review Mpshe’s decision and refuses its application for a redacted record. The DA appealed Ranchod’s ruling.

-March 20‚ 2012: The Supreme Court of Appeal (SCA) held that the DA had standing to review Mpshe’s decision.

The SCA also ordered the NPA to lodge with the registrar of the SCA the record of the decision. That record was to exclude the written representations made on behalf of Zuma.

But the NPA did not provide the record of decision‚ prompting the DA to approach the High Court in Pretoria to seek an order compelling the prosecuting authority to do so.

-August 16 2013: Pretoria High Court Judge Rammaka Mathopo orders the NPA to comply with an earlier SCA order that it lodge the record of decision. Zuma was not happy with the order and appealed to the SCA.

-August 28‚ 2014: The SCA‚ in a judgment by Mahomed Navsa‚ ordered the NPA to comply with the earlier SCA ruling that the NPA provide the court with the record of the challenged decision.

The court said the record of decision should include a copy of the “spy tapes” and a transcript referred to by Mpshe in the announcement of his decision of 6 April 2009 as well as any internal memorandums‚ reports or minutes of meetings dealing with the contents of the recordings.

-March 1-3‚ 2016: The application by the DA to review Mpshe’s decision is finally heard by the full bench of judges in the High Court in Pretoria.

-April 29‚ 2016: The court rules that Mpshe’s decision to discontinue the prosecution of the case against Zuma was reviewed and set aside. Zuma and the NPA applied for leave to appeal the decision.

-June 24‚ 2016: The full bench refuses applications by Zuma and the National Directorate of Public Prosecutions for leave to appeal. Zuma and the NPA petitioned the SCA to hear the appeal.

-September 14‚ 2017: The appeal by Zuma and the NPA is heard in the SCA. Zuma’s counsel‚ Kemp J Kemp SC‚ concedes that Mpshe’s decision was irrational.

Hilton Epstein‚ for the NPA‚ argued that Mpshe’s decision to drop the charges was based on the timing of the indictment being served and that there was political interference by Scorpions McCarthy‚ who was a staunch supporter of former president Thabo Mbeki.

-October 13: SCA judgment expected.

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