Spy Tapes: Mokotedi Mpshe breached cardinal legal rule

Judge Aubrey Ledwaba said Mpshe failed to properly investigate the allegations made in the spy tapes.

Deputy Judge President Aubrey Ledwaba found the decision to drop the corruption charges against President Jacob Zuma in 2009 was irrational. Picture: Kgothatso Mogale/EWN

PRETORIA - In its scathing criticism of the decision to discontinue the prosecution of President Jacob Zuma, the High Court found former National Prosecuting Authority (NPA) boss, Mokotedi Mpshe, breached a cardinal legal rule.

This was the finding of deputy judge president Aubrey Ledwaba, who yesterday set aside Mpshe's 2009 decision to discontinue Zuma's prosecution on corruption charges.

Mpshe reached his decision after considering representations from Zuma, which included secret recordings of former scorpions boss Leonard McCarthy.

The so-called spy tapes showed that McCarthy and former NPA boss Bulelane Ngcuka had made political considerations, while deciding on when to serve the indictment on Zuma.

Ledwaba said Mpshe ignored the concerns he had personally raised prior to making the decision to discontinue the prosecution.

"The information from the tapes and the representation from Mr. Zuma's lawyers had to be investigated, verified and tapes authenticated."

He said Mpshe failed to properly investigate the allegations made in the spy tapes and didn't allow McCarthy to respond to them.

"He had thus breached the cardinal rule of audi alteram partem that is hearing the other side before making an intervention."

Meanwhile, legal experts have hailed the spy tapes judgement, saying it has cast South Africa's judiciary in a good light.

Retired high court judge, Chris Greenland, said the NPA is now obliged to uphold its previous decision to prosecute the president.

"So what it means is that in terms of the Constitutional law the NPA is obliged to proceed in terms of its decision that was in place at that time to prosecute."


As the NPA mulls the way forward after spy tapes ruling that the decision to withdraw corruption charges against Zuma was irrational and must be set aside, McCarthy now also faces investigation over his involvement in the timing of the move.

The High Court in Pretoria said McCarthy's alleged interference could constitute a serious breach of law.

Judge Ledwaba views McCarthy's conduct in a very serious light.

He said it may even be criminal.

"The alleged conduct of Mr McCarthy as it appears in the transcripts of the recorded conversations, if proven, constitutes a serious breach of law and prosecutorial policy."

The NPA said it's studying the judgment.

Meanwhile, the African National Congress (ANC) has refused to answer the question whether or not it's proud to have President Zuma as its leader after the ruling.

ANC spokesperson and national executive committee member Zizi Kodwa was asked if the party was proud to have Zuma as its leader.

"President Zuma remains president of African National Congress."

At the same time, Democratic Alliance leader Mmusi Maimane said they're confident of victory if Zuma and the NPA appeal today's ruling.

"I think the Supreme Court of Appeal will support our view and I think the Constitutional Court will support our view."

The Presidency said Zuma is looking at which remedies may be available to him.

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Meanwhile, legal experts say what should happen next, is that Zuma should be called to court.

Former Wits law professor and practicing advocate James Grant says, "Ultimately the decision of Mpshe was set aside; that takes us back to the status quo at the moment that he made that decision to discontinue the prosecution. At that moment in time, there were charges pending against Mr Zuma."