Pretoria – High Court judges on Tuesday repeatedly asked National Prosecuting Authority advocate Hilton Epstein to explain what caused then acting National Director of Public Prosecutions (NDPP) Mokotedi Mpshe to drop the raft of charges against President Jacob Zuma in 2009 after listening to the so-called spy tapes.
“The point being made is that all this information was known to Mr Mpshe already. It was known. It’s not something he discovered after listening to the tapes. He was part of the decision to say ‘we are proceeding with the prosecution notwithstanding the information we have’,” Judge Billy Mothle said in the High Court in Pretoria.
Read: Decision to drop charges against Zuma ‘rational’
“What we don’t have before us is, after being briefed by (deputy NDPP Willie) Hofmeyer and (acting head of the National Prosecuting Services Sibongile) Mzinyathi about the content of the tapes, when he himself listens to the tapes, we are not told what is it that is new which he found there that caused him to change his mind – not to continue with the prosecution. We are not told that.”
Mothle said when Mpshe listened to the discussions contained on secretly recorded phone calls, including conversations between former NDPP Bulelani Ngcuka and Scorpions boss Leonard McCarthy, commonly referred as the spy tapes, he already knew what was contained therein.
“He listened to the tapes, knowing what the contents were because he had been briefed. According to Hofmeyer, right up to that moment when he had to listen to the tapes in the evening of the 31st of March (2009), he was of the view that the prosecution should proceed,” Mothle told Epstein.
“What we are missing here is what made him change his mind, which he did not know before. That is the question my brother here (fellow Judge Aubrey Ledwaba) has been asking.”
In response, Epstein said he wanted to convey the relevance of the tapes.
“I’ve clearly not been successful in conveying to you the relevance of the tape recordings which do not stand alone. Interpretation is a matter for the courts which can only be considered in context. What is the context. The context is what was known to Mpshe when he listened to those tape recordings,” Epstein told the full bench of judges.
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“Those tape recordings when listened to by somebody else may have had a completely different meaning if they they did not know the background to the Browse Mole report and what Mpshe himself knew. Everything fell into place for him once he had heard the tape recordings.”
“He was shocked. Hofmeyer said he was shocked and Mzinyathi said she was shocked. They were all shocked as a result of the tape recordings because Hofmeyer was familiar with the Browse Mole report. Those tape recordings meant everything when Mpshe listened to them and knows what he does know about the Browse Mole report.”
At that stage, the third judge on the bench Cynthia Pretorius interjected: “But he doesn’t tell us that, Mr Epstein? Where do we find that in the papers. Where does he tell us that all falls into place after listening to the tapes? I don’t know where to find that in the papers.”
Epstein responded: “My lady, if one is looking to say (you can’t find such reasons) in his media statement, that’s not all his reasons. It is in his media statement that he put out. If one is looking for everything in there, one may not find it”.
“What I would like to do is to say that he (Mpshe) is not bound, he is not tied to exactly what he stated in the media statement as the reasons. They can be expanded on.”
Epstein started off by telling the court that McCarthy was party to manipulating “the timing of when Mr Zuma would be re-charged” – whether it should be before or after the ANC national conference which elected him President in Polokwane in December 2007.
“This was plainly most irregular and worthy of strong criticism. Again, the irregularity of Mr McCarthy’s conduct is not to be minimised,” said Epstein.
Mothle asked why the people being implicated – Ngcuka and McCarthy – were not given the opportunity to respond to the allegations.
Epstein said the pair were not party to the court case.
“Secondly, Mr Ngcuka was given an opportunity. In the papers, questions were put to him and he responded. Mr McCarthy was invited and he elected not to do so. He put some prerequisites in place which he wanted determined before he could respond,” said Epstein.
He said there was no evidence proving that then president Thabo Mbeki had a hand in the “conspiratorial prosecution” of Zuma.
“There is no evidence that president Mbeki himself was conspiratorial in this prosecution. The point is, McCarthy and Ngcuka – with or without the assistance of president Mbeki – were proceeding with one agenda and motive. That was to try and ensure that president Mbeki was successful at Polokwane. There is no evidence that president Mbeki was involved in all this,” said Epstein.
“I endeavour to show you that the conclusion is inescapable that McCarthy was doing this with one point in mind. He was manipulating the prosecutorial process for a political agenda that he and Ngcuka had.”
The Democratic Alliance, represented by advocate Sean Rosenberg, said the discussions on the spy tapes were insignificant.
“What appears is that the decision of Mpshe, it was not a reasoned decision. We submit that at that stage, it wasn’t a rational decision backed by any reasons,” said Rosenberg.
“It was a decision which reflected his (Mpshe’s) own sense of betrayal and anger and outrage over McCarthy’s conduct. We will submit that as at April 2009, unreasonable and impulsive as it was, it was not a rational decision. The reasons were worked out and developed and articulated in the press announcement of April 6, 2009.”
The three judges of the North Gauteng High Court are hearing the DA’s application to set aside the National Prosecuting Authority’s decision in April 2009 to drop 738 charges of fraud, corruption and racketeering against Zuma.
Rosenberg said Mpshe’s decision to discontinue the prosecution of President Zuma was unwarranted.
“The decision was fundamentally irrational,” said Rosenberg.
The opposition party has approached the courts, as part of a bid to have fraud and corruption charges reinstated against Zuma.
The charges stemmed from the country’s 1999 arms deal and the decision by then acting NPA head Mpshe to withdraw the case, paving the way for Zuma’s election as president the following month.
The DA went to court soon after, but the actual review has taken more than six years as a result of a lengthy case within a case to secure the release of the so-called spytapes – wiretaps of phone calls Mpshe said indicated that the timing of the charges was manipulated by supporters of former president Thabo Mbeki.
African News Agency
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