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Spy Tapes: ‘NPA won’t risk its independence’

The authority says its independence is more important than pursuing the conviction of one person.

Legal counsel for the NPA, President Zuma and the DA in court for the Spy Tape saga on 1 March 2016. Picture: Vumani Mkhize/EWN

PRETORIA - The National Prosecuting Authority (NPA) has argued that the independence of the prosecuting body is more important than pursuing the conviction of one person, even if that person is the president.

This was heard in the North Gauteng High Court this morning, where the Democratic Alliance (DA) has applied to have the 2009 decision by former prosecutions boss Mokotedi Mpshe set aside.

Former prosecutions boss Mokotedi Mpshe made the decision in 2009 after considering President Jacob Zuma's submissions, which included the so-called Spy Tapes.

The secret recording of Scorpions boss Leonard McCarthy showed that he made political considerations when deciding when to serve the indictment on Zuma.

"One has to ask the question: Is it more important to pursue the conviction of one person? You put out of your minds with respect that this is president, even when the merits appear to be good. Or is it rather more important to assure the public that at any cost, their prosecutorial authority will not be impeded, it will not be affected, it will not be influenced by outsiders and it will always remain independent?"

The NPA legal team also says the court does not have the authority to review the decision to withdraw criminal charges against Zuma.

NPA counsel advocate Sean Epstein relied on a judgment in the UK, which confirmed the discretion given to prosecution heads when making decisions, even if they're unpopular.

"The issue in these proceedings is not whether his decision was right or wrong, nor whether the divisional court in the house agrees with it, but whether it was a decision which the director was lawfully entitled to take. Such an approach involves no affront to the rule of law to which the principles of judicial review give effect."

Epstein argued that Mpshe exercised his discretion when he withdrew the case against Zuma.

"Unless there are allegations that he was malafide, or that he had an ulterior motive, or that he didn't apply his mind, then his discretion stands and the court should not impose its own wisdom on what the court would have done or what the court believes was reasonable."