Spy tapes saga: the latest

President Jacob Zuma will apply in the Johannesburg high court this week for leave to appeal against the most recent ruling in the so-called “spy tapes” saga. The appeal will be heard on Friday, 6 September.

On 16 August the high court in Pretoria ruled that the National Prosecuting Authority (NPA), which is in possession of the recordings, must hand over the tapes, their transcripts, and any other internal documents of relevance, by the end of that month – and now Zuma’s legal team is seeking to overturn that ruling.

The spy tapes are secret recordings of conversations between then Scorpions boss Leonard McCarthy and former NPA head Bulelani Ngcuka. They are related to corruption charges brought in 2007 against Zuma for his involvement in the arms deal scandal, and may contain evidence of political manoeuvring against Zuma at the time.

Here’s what we reported on last month:

By Valencia Talane

As the Friday deadline looms for the National Prosecuting Authority (NPA) to release the so-called “spy tapes”, Corruption Watch looks back at the start of the saga, and unpacks how it got to a court order and what issues it has unearthed in its wake.

The tapes have been at the centre of a legal tug of war between President Jacob Zuma and the DA. They are said by the NPA to be recordings of alleged conversations between the two men who headed the now-defunct Scorpions and the NPA, Leonard McCarthy and Bulelani Ngcuka, at the time when charges of corruption and racketeering were brought against Zuma for his involvement in the controversial arms deal.

These charges stemmed from evidence that came out of the corruption and fraud trial of Durban businessman Schabir Shaik, who is Zuma’s former financial adviser. At the time that Zuma and Shaik had a business relationship, the former was the KwaZulu-Natal MEC for economic affairs and tourism. By the time he was charged, however, he was the deputy president of the country. He faced 700 charges in total, relating to corruption and racketeering.

In 2009, two weeks before the ballot for South Africa’s third democratically elected president – which Zuma won – the NPA dropped the charges against him in an announcement made by its acting head, Mokotedi Mpshe.

Zuma had been charged two years previously, after the 2005 conviction of Shaik. One of the charges for which Shaik was convicted related to a bribe he solicited from a supplier in the government’s arms procurement deal, Thomson CSF.

Why charges were dropped

When he dropped the charges, Mpshe said that the decision was based on the existence of secret recordings – the spy tapes – of conversations between Scorpions boss McCarthy and then NPA head Ngcuka.

In the recordings, the two men allegedly exchanged details of how the timing was imperative for bringing Zuma down politically, implying that he was a threat to then president Thabo Mbeki, and that political interference played a role in Zuma being brought to account on the corruption charges.

Mbeki had removed Zuma as his deputy in 2005 after the Shaik conviction. Addressing a joint sitting of Parliament, he had said: “In the interest of the honourable deputy president, the government, our young democratic system and our country, it would be best to release the honourable Jacob Zuma from his responsibilities as deputy president of the republic and member of the cabinet.”

Because Zuma had been based in KwaZulu-Natal in the timeframe examined during Shaik’s trial, his corruption charges were first publicly declared in the Pietermaritzburg High Court.

On September 12, 2008, Judge Chris Nicholson ruled that the charges were unlawful, citing that the NPA should have given Zuma an opportunity to present his case to the authority before it charged him through the criminal justice system.

The NPA announced shortly after Nicholson’s ruling that it would appeal. Mbeki, on the other hand, applied to the Constitutional Court to appeal the ruling and have the implications of his political interference in the matter rectified.

The NPA’s appeal was upheld by the Supreme Court, only for the former to drop the charges a year later. Nicholson’s basis for the ruling – that the NPA had not given Zuma an opportunity to present his case to the authority before it charged him – was also overruled as not being compulsory in terms of the Constitution.

Eight Constitutional Court judges dismissed Mbeki’s application on 11 November 2008. Mbeki had said Nicholson’s judgment was related to the decision by the ruling party to remove him from office, about six months before his term as president would have ended. In particular, he had wanted the Constitutional Court to scrap certain parts of Judge Nicholson’s ruling, namely that Nicholson could not exclude the possibility of political interference in the decision to re-charge Mbeki’s political rival and the new ANC president Jacob Zuma for fraud and corruption.

The DA’s fight

DA leader Helen Zille wrote in the Cape Argus newspaper this week that the order of the North Gauteng High Court to release the tapes was a “decisive moment in a case that has dragged on for four years, through three hearings (so far) and has cost the DA millions”.

The party took its fight to get the contents of the tapes revealed to court after the charges against Zuma were dropped. It wanted the judiciary to assess the validity of the NPA’s argument that the tapes implied political interference. “The outcome will determine whether the politically powerful in South Africa can manipulate the institutions of democracy in their own interests,” wrote Zille, “or whether these institutions have the strength and independence to hold us all, even the president, to account.”

The spy tapes were important, she continued, because the NPA used them as the main reason for its decision, just before the 2009 general election, to drop over 700 counts of corruption, fraud, money laundering and racketeering against Zuma. Zille’s argument is that the NPA has never explained to South Africans how the tapes show a political conspiracy against Zuma, or why it deemed the case unworthy to go ahead.