President Jacob Zuma has had a good run in the past few weeks, asserting himself as a leader of action. But an arbiter’s finding that the spy tapes used to drop corruption charges against him were illegal, could prove to be grease to his grip on the reins of power. CARIEN DU PLESSIS examines the implications.
Midway through his term as President, those tapes that once saved his political life have come back to haunt Jacob Zuma. This is happening ironically at the same time that turf battles within the country’s intelligence agencies are brewing again, as they did when these tapes were made – and from what’s been reported, it’s clear that Zuma is determined to keep loyalties in these agencies firmly behind him.
The tape revival happened in something as pedestrian as a Commission for Conciliation, Mediation and Arbitration (CCMA) hearing, which involved former deputy head of the Special Investigating Unit (SIU), Faiek Davids, who started his legal battle with the SIU after his dismissal in November (he was suspended in June 2009). The CCMA ruled on Tuesday on a preliminary point that the spy tapes, which the SIU had wanted to use to prove that Davids had become incompatible with his superior, SIU head Willie Hofmeyr, were illegal and inadmissable.
Davids had apparently made statements denigrating Hofmeyr in intercepted telephone conversations with former Scorpions boss Leonard McCarthy. Although these weren’t on the actual tapes that the SIU managed to obtain, they were part of the same set of tapes. David’s lawyer, Sonia de Vries from Webber Wentzel on Tuesday night said the court found it could not rely on evidence that were unlawfully obtained.
The tapes could therefore not be used in the CCMA. If the SIU had wanted to continue with the case, it would have to find other evidence or other grounds, but the question then arose whether the dismissal was done in good faith, De Vries said.
The controversial tapes were used by acting head of the National Prosecuting Authority Mokotedi Mpshe in April 2009 to prove that the corruption charges against Zuma were trumped up. Phone conversations between McCarthy and former NPA boss Bulelani Ngcuka were recorded. These apparently pointed to a secret connivance between them. McCarthy’s phone was bugged by police crime intelligence and the National Intelligence Agency after the leaking of the controversial Browse Mole Report (which implicated Zuma in a plot to overthrow Mbeki).
What is still unclear is how the tapes got into the hands of Zuma’s lawyer, Michael Hulley, who is apparently still the only one who has complete copies of these tapes. It’s been speculated that this happened through the country’s intelligence agency.
Hofmeyr had listened to the recordings at Hulley’s offices, and eventually got some of them through the NPA (the police couldn’t supply him with copies because apparently their relations with the NPA were strained at the time). Hofmeyr fought in August to keep Davids’s hearing out of the public eye, but his plea was overruled and the hearing was open for the media to report on.
His testimony demystified some of the secrecy surrounding the tapes and their authenticity, as he told of how intelligence officials struggled to decode them. He also admitted that the NPA was not one of the parties applying for permission to have the phone conversations bugged. Such permission, from a judge, is required by law.
Many of Zuma’s detractors might now be asking if and how they could use this ruling in their favour. A legal expert told iMaverick that a CCMA ruling does not bear the same weight as a court judgement, but it does count for something. Although it would be difficult to use it in a court (dropping Zuma’s charges had to do with Mpshe’s discretion, rather than Zuma’s innocence or guilt, or even a technicality in the case, and besides, nobody seems to have a complete set of the tapes), it might have political implications. For one, it again opens up Zuma’s old wounds, exposing his vulnerable side which Mbeki once tried to exploit to stop Zuma from rising to power.
This didn’t work out for Mbeki as Zuma rallied enough support to oust Mbeki. That same support base is now crumbling for Zuma. Any challenge regarding the tapes is unlikely to come from the NPA, as its head Menzi Simelane is sympathetic towards Zuma.
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.
Then there is still the DA’s challenge to Mpshe’s decision – a court case that had been dragging on since just after the decision was taken. DA chairman of the federal council James Selfe told iMaverick that the case is set to come before the Supreme Court of Appeal in February (incidentally, the party’s appeal against the appointment of Simelane as NPA boss will be heard on 31 October by five Supreme Court of Appeal judges).
Selfe said although the CCMA’s finding on the Davids case wasn’t binding in law, “it is significant in the sense that this brings the status of the tapes under question”. He said it “points to the bizarre sort of situation that goes on in both the intelligence agencies that are competing with each other so much that they can’t guarantee the security of the state” and that they neglect to pursue real criminal.
It’s not clear whether the SIU would appeal the CCMA ruling, but De Vries said they expected to get some indication from the SIU before the end of the week. Justice spokesman Tlali Tlali did not respond to a request for comment sent to him late on Tuesday night. DM
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