The Zuma spy tapes and unworthy conduct
On Thursday the Supreme Court of Appeal (SCA) handed down the ruling everyone was expecting. That the Democratic Alliance (DA) had the right to copies of the Zuma 'spy tapes', and that President Jacob Zuma was wrong to oppose them in the first place. While it's a ruling that has huge political and legal implications for both Zuma and the DA, it also goes much further than that. Because what this has always been about is whether or not in the Republic of South Africa in the 21st century, politics is stronger than the law. Since 2009 it's appeared that politics has been the stronger. Now the law may be about to win the second round. And at the centre of the fight is, not surprisingly, the National Prosecuting Authority (NPA). And its deputy head, Advocate (we think) Nomgcobo Jiba.
When approaching the Zuma spy tapes, it's tempting to start with the phrase "the story so far". But if we did, we'd be a thousand words in before we actually got to the meat of yesterday's judgment. So you could go here, or read the four-sentence version:
In 2009 the NPA said it had recordings of its former head Bulelani Ngucka and then Scorpions boss Leonard McCarthy discussing when to charge Zuma with corruption arising out of the Schabir Shaik trial. The then NPA boss, Mokotedi Mpshe, said this was a justification to withdraw the corruption charges against Zuma as he could not have a fair trial. The DA wants that decision overturned by a judge, and to do that, it wants the tapes to actually listen to them.
Now they will get them next week.
That the DA would get the tapes was not surprising for two reasons. Firstly, 10 days ago Zuma's advocate - the well-known, very experienced and wonderfully named Kemp J Kemp - conceded in the SCA that actually he had no argument to make as to why the DA should not get the tapes. But secondly, and perhaps more fundamentally, from a logical point of view, in law the tapes work in Zuma's favour. They are to his advantage. Thus, it should follow that he would want them released, as that would benefit him. That he has not wanted them released (until now) has suggested that perhaps the tapes don't work in his favour as far as the NPA claimed they did back in 2009.
This meant it was always quite odd that the NPA in the court of first instance, and Zuma up until now, has resisted their release. But more importantly, it also demonstrates what has actually happened within the NPA. In other words, this case has, to an extent, lifted the lid on who actually controls the NPA, and whether it is prosecuting without fear or favour. Or whether it has simply become a political beast, and has been, as Helen Zille put in on Thursday, "captured" by Zuma.
It is surely to the benefit of our democracy that the SCA, through Judge Mohammed Navsa, writing for a unanimous court, has addressed this very issue.
All through his ruling is a general complaint that the NPA had not behaved properly during this process. In particular, he is scathing of the fact that when it was asked to release these tapes, and then asked Zuma's lawyers to decide whether they could be released, it did nothing when there was no response. As Navsa puts it:
"It resorts to a metaphorical shrugging of the shoulders, and places the reason for its non-compliance with the order of this court in the first appeal at the door of Mr Zuma's legal representatives, submitting that the present dispute was due to them not being timeously forthcoming with a final position on the disclosure of the tapes or the transcripts. The NDPP's office assumes the position that the lack of consent to the release of the tapes or transcripts was sufficient to forestall compliance with the order in the first appeal."
In other words, the NPA simply sat back and did nothing. It allowed a wrong to be committed through its inaction. Inaction, it seems, that was quite deliberate.
The timeline of the NPA, and of who was running it when, matters here. While it may look as if the judges are being critical of the current National Director of Public Prosecutions Mxolisi Nxasana, they're actually referring to the person who was running it for most of this litigation. Which was Jiba. She was the person in charge of the NPA after Advocate Menzi Simelane's appointment was struck down. As a result, this happened mainly on her watch.
At one point Navsa shows his frustration with the fact that the affidavits submitted by Jiba don't actually contain information from the people who were involved in making the decision. He says:
"In relation to the internal memoranda, that part of the answering affidavit referred to in para 19 above lacks specificity and the generalisation resorted to by the ANDPP, which will be dealt with in greater detail in due course, is, to say the least, disingenuous."
However it is at the end of this ruling, that the real atom bomb is revealed.
First, Navsa refers to the fact that his court has already made a finding against Jiba in the case in which the NPA was ordered to reinstate charges against former police crime intelligence head, Richard Mdluli:
"As recently as April this year, this court in National Director of Public Prosecutions v Freedom Under Law 2014 (4) SA 298 (SCA) criticised the office of the NDPP for being less than candid and forthcoming."
He then goes on to say it is wrong that the NPA did not take a position on whether these tapes should have remained confidential in the first place:
"Furthermore, it is to be decried that an important constitutional institution such as the office of the NDPP is loath to take an independent view about confidentiality, or otherwise, of documents and other materials within its possession, particularly in the face of an order of this court. Its lack of interest in being of assistance to either the high court or this court is baffling.
"It is equally lamentable that the office of the NDPP took no steps before the commencement of litigation in the present case to place the legal representatives of Mr Zuma on terms in a manner that would have ensured either a definitive response by the latter or a decision by the NPA on the release of the documents and material sought by the DA."
Navsa is being as critical as he can in publicly upbraiding Jiba for her conduct. He says she did not do her duty, that she behaved in a way that isn't explained in law; that possibly isn't allowed by the law. While he is constrained in what he can say, we can surely ask what the motivation was for this conduct on her behalf? Why did she not take "an independent attitude"? Why did she just "shrug her shoulders"?
Again we have to point out the context here. Jiba's husband, Booker Nhantsi, had his criminal record expunged by Zuma so that he was once again eligible for a job in a municipality.
At the same time, this is not the only instance in which Jiba has appeared to not act in accordance with her duties. While running the NPA, she decided to institute murder charges against the 270 surviving miners of the Marikana shootings before the Farlam Commission was even properly instituted. It was only after huge pressure, both at home and internationally, that she backed down. She was one of the prime movers behind the decision to withdraw charges against Mdluli. Her conduct in that regard was so serious that Nxasana has asked the police to investigate criminal charges against her.
Why this strange behaviour? When Zille talks about the "capture" of the NPA, is Jiba the mechanism, the link-point? Is it through her that Zuma appears to exercise this control?
There is another aspect of Jiba's character that needs to be examined. It's emerged over the last month or so that she may in fact not be an advocate at all. She has been asked to produce her certificate of admission; this she has not done. When someone's qualifications are challenged in this way, it would surely be pretty easy to prove that you have them. Certainly, if someone cannot prove it, they tend to be forced to retire from public life. Now we have a situation where Pallo Jordan has withdrawn for "contemplation" and Jiba is still exercising authority at the NPA.
While being an advocate may not be a prerequisite for her office as a deputy head of the NPA, if she cannot prove her admission as an advocate, she will immediately be asked why she's lied for so long. And why she has allowed the NPA's website to perpetuate that lie. Also her past, and her previous role at the NPA as a prosecutor, could suddenly come under the spotlight.
In the final analysis, the last word here has to be left to Navsa:
"This conduct is not worthy of the office of the NDPP. Such conduct undermines the esteem in which the office of the NDPP ought to be held by the citizenry of this country."
And then we have to ask the usual question when trying to understand why this has happened. Who benefits?
_Stephen Grootes is host of the Midday Report on Talk Radio 702 and 567 CapeTalk, and the senior political correspondent for _ Eyewitness News . Follow him on Twitter: @StephenGrootes
This column first appeared on Daily Maverick.