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The reasons why the National Prosecuting Authority (NPA) decided to withdraw fraud and corruption charges against President Jacob Zuma in 2009, could be known by the end of next week.
The Pretoria High Court on Friday ruled that, among others, a copy of the Zuma “spy tapes” had to be lodged with the registrar of the court within five days.
Judge Rami Mathopo ordered that acting director of the NPA, Nomgcobo Jiba, had to adhere to the Supreme Court of Appeal (SCA) judgment delivered last year, in terms of which the full record of proceedings, including the spy tapes and the transcripts that led to the dropping of the charges, had to be lodged with the registrar.
These will include any internal memoranda and reports or minutes of meetings, in so far as these documents do not breach the confidentiality of Zuma’s written or oral representations.
A copy of the memoranda, minutes and notes of meetings also have to be delivered within five days to the DA’s Cape Town attorneys. Jiba has to mark or record the part of the documents which deemed to be confidential.
The judge said should a dispute arise regarding the confidentiality, the DA may approach him in chambers for a ruling.
The DA scored this victory after it asked the court to compel the NPA to release the “spy tapes”, as ordered by the SCA last year. The SCA, at the time, gave the NPA 14 days to hand over the reduced court records of the transcripts, which led to the then-NPA head Mokotedi Mpshe to drop charges against Zuma.
Two days after the 14-day period lapsed, the state attorney delivered a portion of the record. None of the spy tapes were, however, produced. The DA deemed this to be a deliberate attempt by the NPA to disregard the SCA order.
The DA asked the court to hold the NPA in contempt of court, but Judge Mathopo turned this down, pointing out that part of the record was produced, although two days after the deadline.
Zuma objected to having the transcripts and tapes in the public domain, saying it would be a breach of his confidentiality. The tapes are recordings of intercepted phone conversations between former NPA head Bulelani Ngcuka and then boss of the Scorpions, Leonard McCarthy.
Zuma’s contention was that in terms of the SCA’s order, confidentiality applied to all the documents placed before the NPA as part of his representations. The DA, on the other hand, understood the order to mean that the transcripts weren’t protected by confidentiality.
“It should have been obvious to the third respondent (Zuma) that, in the absence of any countervailing evidence, particularly since the parties accorded different interpretations to the SCA order, more was required to clarify his position… The objective facts submitted by the applicant (DA) cried out for an answer, yet (Zuma) elected not to respond.”
The judge added that Zuma imperiled his position by failing to explain why he was entitled to confidentiality. He further said Zuma implied that Mpshe, in his public address as to why charges were dropped, breached his (Zuma’s) confidentiality. “It is opportunistic for (Zuma) to now contend there was a breach of confidentiality when he benefited from the alleged disclosure.”
The judge found confidentiality did not extend to the transcripts and said the transcripts should be released to test whether Mpshe’s dropping of the charges was based on rational grounds or not. “To now assert privilege or confidentiality is without foundation. It is difficult to understand why (Zuma) raises this defence at this belated stage.”
The judge further said the NPA had to produce “everything”.
“If Zuma claims confidentiality (of portions), he has to set out why it is confidential. The NPA is not entitled to accommodate (Zuma) in a vacuum.”
Judge Mathopo said the NPA, as an organ of state, had a duty to prosecute without fear, favour or prejudice by upholding the rule of law. It also had a duty to operate with transparency and accountability.
“The NPA has a duty to explain to the citizenry why and how Mpshe arrived at the decision to quash the criminal charges…,” said the judge. - Pretoria News