Clamour grows as NPA weighs whether to drop charges

As the nation waits for news on whether the National Prosecuting Authority (NPA) will drop the charges against ANC president Jacob Zuma, pressure is mounting for the alleged spy tapes which form part of his representations to be investigated and made public.

In addition, serious questions have been raised about the legality and admissibility of such evidence.

The NPA is expected to make an announcement on the charges against Zuma on Friday.

The Office of the Inspector-General of Intelligence has said it will not investigate the tapes.

They are reportedly of tapped conversations involving former president Thabo Mbeki, former Scorpions boss Leonard McCarthy and former national director of public prosecutions Bulelani Ngcuka, which support Zuma's contention that his prosecution was politically driven.

Today DA leader Helen Zille called the situation a "massive multiple cover-up *1", and warned that the NPA was also being compromised by the ANC's internal battles. The DA would "take immediate further action" if the charges against Zuma were dropped.

Zille added that it was imperative that all the information presented to the NPA be made public.

"We want everything; we want to hear those tapes (and see) the secret documents," she said.

International security studies scholar Laurie Nathan has also echoed calls for the Inspector-General of Intelligence, Zolile Ngcakani, to investigate the Zuma spy-tape saga.

Nathan, who was a member of the 2006 Review Commission on Intelligence, said it was "inappropriate" for the IG to refuse to investigate allegations of illegal interception of communication on the grounds that it had not received evidence.

"The inspector-general is an investigative body," Nathan told the Cape Argus. When complaints of malfeasance were made, "the office of the inspector-general must undertake an investigation to determine whether there is evidence of illegality".

"It cannot simply wait for evidence to be presented to it."

Nathan acknowledged that it would be difficult to determine whether the recordings had been made legally or illegally, or in bad faith, unless further information was made available.

How the tapes landed in the hands of Zuma's legal team also needed answering.

"Information obtained as a result of an interception may not be disclosed unless this is required for the performance of functions under the legislation, or is required in terms of any law or as evidence in court, or is required by a competent authority for criminal proceedings," Nathan said.

"How dare you share this information with a defence team? This is confidential information and I don't see on what basis you could pass this on to private individuals."

Constitutional expert Professor Pierre de Vos agreed with Nathan's position on his blog, Constitutionally Speaking, saying that Zuma and his lawyer might have exposed themselves to criminal prosecution by accepting the tapes.

De Vos said he would be "surprised" if a judge had granted permission for the alleged eavesdropping, because such a judge would have had to believe that the subjects of the phone-taps were threatening the security of the State, or that Mbeki, for example, was planning a coup.

There was, therefore, "the very real possibility that the eavesdropping was in contravention of the (Interception of Communications) Act", De Vos said.

And even if the information was obtained legally, it would be a criminal offence to hand over such information to private individuals. Those receiving it would also be complicit in the crime.

De Vos added that it also seemed "pretty clear" that such evidence would not be admissible in Zuma's criminal trial.

Nathan said there were several weaknesses and omissions in existing intelligence and interception legislation.

At stake was not only whether a legal warrant was obtained to tap the conversations, but what happened to information that investigators inadvertently stumbled on while legally intercepting conversations - as appears to be the case with the spy tapes.

"The law is silent on it. The intelligence services refer to this as incidental information and there ought to be rules for the discarding of incidental information," he said.