The general consensus of opinion in unaffiliated circles seems to be that the National Prosecuting Authority (NPA) marginally demonstrated it was justified in withdrawing the charges against African National Congress (ANC) president Jacob Zuma.

But was it?

We must assume that the NPA presented the most telling evidence . The transcripts are short : over 30 conversations fill a few typed pages. They are edited extracts, many meandering and pretty meaningless.

But they are very embarrassing for former Scorpions boss Leonard McCarthy and former NPA head Bulelani Ngcuka.

For the head of the Scorpions to be discussing the timing of a court case with a political actor was horribly indiscreet. But indiscretion does not necessarily constitute manipulation.

NPA acting national director Mokotedi Mpshe clearly pins the blame on McCarthy. He says: “McCarthy, who was head of the DSO (Directorate of Special Operations), and was in charge of the matter at all times and managed it almost on a daily basis, manipulated the legal process for purposes outside and extraneous to the prosecution itself.”

Yet the conversations don’t reveal that McCarthy did anything of the sort ­ they could easily suggest the opposite. It was apparently Ngcuka’s argument that if the NPA brought the charges before Polokwane, it would play into the hands of Zuma’s supporters who would claim a conspiracy.

The charges were reinstated only after Polokwane, so it seems Ngcuka got his way. Ironically, in his judgment supporting the notion of political interference, Judge Chris Nicholson took an adverse implication from the decision to charge Zuma so soon after the ANC conference.

But the tapes do not suggest McCarthy was in favour of this strategy. Take this exchange for example:

LM: Up until Friday, I received a strong memorandum to say charge and charge now

BN: Friday

LM: No this Friday, the team says we have been f**king around with this thing, we are allowing ulterior considerations to come in, it will become an impossibility later ­ we now must take action and deal with “finish and klaar” as Jackie Selebi says, but we will talk when I see you.

It’s not impossible that McCarthy changed his mind and went along with Ngcuka’s plan. But delaying the decision to reinstate the charges was the more considerate thing to do. To reinstate so soon before a political vote would have been extremely crass.

If Nicholson could sense a conspiracy from the NPA’s decision to reinstate the charges just after Polokwane, imagine what he might have imputed if it had done so just before the conference?

Interestingly, the NPA interprets this passage completely differently. In the margins of the transcript the following is noted: “Appears as if BN requested that LM obtain the view of the team to bolster the argument that charges should be brought before Polokwane (in case it was needed)”.

This seems a massively extrapolated conclusion to draw from a snippet of conversation. The more obvious conclusion is that McCarthy was arguing against Ngcuka that the law should take its course unhindered. He accuses Ngcuka of “allowing ulterior considerations to come in”.

The tapes show McCarthy was a strong supporter of former president Thabo Mbeki, which is not ideal, although presumably not a crime. In his conversation with Mbeki, McCarthy says “you will always be my president”. But this was after Mbeki suggested that some described him after Polokwane as “former president”. McCarthy was simply being polite .

The decision to charge and when to charge was not McCarthy’s to take, and neither did he take it. McCarthy was an investigator, not a prosecutor. The prosecutor was Mpshe . But now Mpshe is effectively saying he was manipulated into doing the right thing.

The transcripts don’t say very much and suggest affiliations that are obvious. The conversations are like Rorschach blot pictures: they tend to reinforce preconceived ideas. For a humiliated and cornered prosecution service, the blot looked very much like a convenient way out of a tough spot.
 

With acknowledgements to Tim Cohen and Business Day.