‘Charges against Zuma should never have been dropped’

Johannesburg — The senior prosecutor in the corruption case against President Jacob Zuma has broken ranks with the National Prosecuting Authority (NPA) and maintains that the charges against Zuma should never have been dropped.

In a startling development, Advocate Billy Downer has submitted a confirmatory affidavit in the DA’s “spy tapes” case in which he contradicts some of the statements made by Advocate Willie Hofmeyr, who filed the main affidavit on behalf of the NPA.

In the affidavit Hofmeyr filed in March, he defends the NPA’s decision to drop the case against Zuma, arguing that the decision was taken with regard to abuse of prosecutorial process and not just the merits of the charges against Zuma.

But in his affidavit, Downer reveals that even though he was “reduced to tears” by the contents of the so called spy tapes that got Zuma off the hook on the corruption charges, he felt their contents did not justify a decision to drop the prosecution. “[The prosecuting team] maintained that the only real consideration was whether there were merits in the charges,” he said.

“In our view, the intercepted conversations didn’t affect the decision to charge Zuma. My view remains unchanged.”

The spy tapes are intercepted telephone conversations between Bulelani Ngcuka, a former NPA head and Leonard McCarthy, the head of the Scorpions, about the timing of the corruption case against Zuma.

It is clear from the tapes that both Ngcuka and McCarthy were supporters of former President Thabo Mbeki.

These tapes were obtained by Zuma’s lawyers and used to make representations to the NPA. Mokotedi Mpshe, the acting NPA head at the time, used them to justify his decision to drop the charges against Zuma, saying the timing of the prosecution had been manipulated to favour Mbeki in the ANC leadership race ahead of the party’s Polokwane national conference.

The DA has since asked the courts to review Mpshe’s decision in a matter that has become known as the “spy tapes” case.

In Hofmeyr’s affidavit filed in the matter, he argues on behalf of the NPA that McCarthy had abused his position as a prosecutor for ulterior motives and that this amounted to an abuse of process.

Hofmeyr said the DA attempted to play down McCarthy’s role in the Zuma prosecution, but says that in reality McCarthy had broad powers over both the investigation and prosecution of Zuma.

He says only McCarthy and not the national director of public prosecutions (NDPP) had the power to institute a prosecution.

Significantly, Downer does not agree with Hofmeyr on this point. “Previous NDPP’s had made decisions to institute prosecutions, including a decision to prosecute Zuma,” argues Downer.

He explains that the investigative director in such cases is only responsible for formal decisions and signing the indictment but that the decision was taken “in consultation and with the concurrence of the Head of the [Scorpions] and the NDPP, after a process that always included extensive consultations with the prosecuting team”.

Downer’s statement in this regard could boost the DA’s argument that McCarthy was never in a position to materially influence the prosecution of Zuma.

Downer concludes by saying that “the prosecution team didn’t believe that the decision to prosecute was tainted by McCarthy’s conduct”.

“The timing of the institution of charges remained [and remains] a subsidiary consideration. It’s not central to the merits of the case against Zuma.” – AFP