300 pages of leaked documents reveal that Scorpions felt ‘blackmailed’ into dropping case

A decision not to prosecute . . . would be regarded by many as caving in to political pressure

SOUTH Africa’s top prosecutors were overwhelmingly in favour of pressing ahead with the corruption case against President Jacob Zuma and had dismissed the so-called “spy tapes” as irrelevant just days before the charges were sensationally dropped in April 2009.

This is revealed in more than 300 pages of explosive internal e-mails, memos and minutes of meetings leaked *1 to the Sunday Times.

The documents raise questions about why then prosecutions boss Mokotedi Mpshe ignored *2 all their advice and let Zuma off the hook, citing the spy tapes as evidence that Zuma was the victim of a plot. They also lift the lid on the high drama and intense internal wrangling that put the criminal justice system on trial in one of the most dramatic episodes of the country’s recent past.

The documents reveal for the first time that the Scorpions team prosecuting Zuma:

• Believed Zuma was trying to “blackmail” them into dropping the charges by threatening to release information on the tapes that would be embarrassing to the NPA;

• Urged Mpshe several times to proceed with the prosecution after being briefed about the spy tapes;

• Pointed out “fatal” legal flaws in Mpshe’s decision not to proceed; and

• Questioned former National Prosecuting Authority boss Bulelani Ngcuka twice about the spy tapes. Ngcuka told them that the people who had accused him of being an apartheid spy were also behind these tapes *3.

The documents include minutes of a briefing held in Mpshe’s boardroom on March 18 2009 by asset forfeiture unit head Willie Hofmeyr and Pretoria prosecutor Sibongile Mzinyathi ­ the only two NPA officials who listened to the tapes.

The minutes reveal that Zuma’s lawyer, Michael Hulley, approached Hofmeyr with “new evidence” that he said warranted dropping the charges against Zuma ­ phone taps of Scorpions boss Leonard McCarthy, which he asked Hofmeyr to listen to.

Hulley did not disclose evidence of these “spy tapes” in written representations he made to the NPA on Zuma’s behalf weeks earlier. The tapes “seemed to be” from the National Intelligence Agency and would be used by Hulley to argue for a permanent stay of prosecution, the minutes state.

According to notes made by Hofmeyr and Mzinyathi while they listened to the tapes, the recordings revealed McCarthy was “part of a campaign for Thabo Mbeki” to win the ANC elective conference in Polokwane in December 2007, which Zuma won. Hofmeyr and Mzinyathi’s notes also state that Mbeki had told McCarthy not to charge Zuma and former police commissioner Jackie Selebi before Polokwane.

Notes from the meeting say the team prosecuting Zuma “was not aware of this manipulation and conspiracies ­ they followed the evidence. Unfortunately I doubt if any will ever believe them. This is a sad, sad day in the history of SA!!!”

These new documents intensify the mystery of why Mpshe would take a decision diametrically opposed to the views of his senior prosecutors working on the case, and is likely to add weight to a case brought by the Democratic Alliance to have Mpshe’s decision reviewed.

They reveal that on at least two occasions after the spy tapes briefing ­ on March 20 and April 2 2009 ­ prosecutors sent a memo to Mpshe urging him to press ahead with the Zuma prosecution.

Attached to one of the memos was a letter that prosecutors expected Mpshe to sign and send to Hulley, rejecting the spy tapes as a reason for dropping the charges.

“A decision not to prosecute ... would undoubtedly be regarded by many as simply caving in to political pressure, ” says the letter, which was never signed by Mpshe. “After anxious consideration, I have concluded that my decision to indict your client in 2007 was not influenced, improperly or otherwise, by McCarthy.”

The letter also states that Hulley’s threat to include allegations of political interference based on the spy tapes in a court application, and his “observations that this would be a great embarrassment to the NPA and the persons concerned” amounted to “blackmail”.

The new documents unearthed this month show Zuma’s chief prosecutor, Billy Downer, former KwaZulu-Natal Scorpions boss Anton Steynberg and two top jurists they consulted ­ Wim Trengove and Andrew Breitenbach ­ were unanimous that the spy tapes should not give Zuma a free pass.

“We consider that the oral representations [from Hulley about the spy tapes] do not change our recommendation [to charge Zuma] and we stand by it,” Downer says in a memo on behalf of the prosecution team sent to Mpshe on March 20.

“To accede to [Zuma’s] representations, apart from being contrary to the merits and the interests of justice, would not be appropriate,” he adds. “Such a course of conduct . . . will forever leave the impression that the NPA has become a pawn of the political establishment and cause irrevocable damage to public confidence in the system of justice.”

Mzinyathi ­ who listened to the tapes with Hofmeyr ­ and Thanda Mngwengwe, the former Scorpions boss who charged Zuma in 2007, also reportedly wanted Zuma’s prosecution to go ahead.

But on April 6 2009, Mpshe announced that charges against Zuma would be withdrawn because, he said, the spy tapes contained evidence that McCarthy and Ngcuka had conspired to remove Zuma from office.

Only Hofmeyr apparently believed *4 McCarthy’s “alleged prosecutorial misbehaviour” warranted dropping the charges, according to one memo.

After Mpshe made his bombshell announcement, a flurry of e-mails and memos reveal how unhappy other top prosecutors were with his decision.

In one sent to Mpshe on April 14 2009, Downer says the “legal motivation ” for the decision is “questionable and may be vulnerable on review*5”.

He criticises the prosecution boss for relying “heavily ” on the “abuse of process *6” doctrine in UK and Canadian law, without any reference to whether this was applicable under South African law.

The key issue, whether the abuse of process would have prevented Zuma from having a fair trial, “was not even addressed”, the memo states. Moreover, two key questions ­ whether McCarthy’s manipulation of the prosecution *7 improperly influenced Mpshe’s decision to charge Zuma after Polokwane in December 2007, and whether he still considered that the decision to prosecute was correct ­ were not answered. “This failure appears to us to be fatal to the correctness of the decision,” the memo states.

The documents also reveal detail, never before published, about McCarthy’s role in manipulating Zuma’s prosecution for political ends.

One memo, entitled “Combined team synopsis of the November/December 2007 decision to prosecute”, states that Scorpions investigator Johan du Plooy objected to McCarthy’s plans to serve summons on Zuma at Nkandla on December 26 2007. Du Plooy considered this “outrageous and unsafe”, and the plan was shelved. Two days later Du Plooy joined the sheriff in serving the summons on Zuma at his Johannesburg home.

E-mails also reveal that, after being briefed about the contents of the spy tapes, Mpshe repeatedly tried to reach McCarthy at the World Bank, where he now works as vice-president of integrity, to get him to answer the charges of being part of a political conspiracy.

“It would appear, on the face of it, that the recorded conversations may damage your integrity, ” Mpshe wrote in one e-mail. “They include that you may have been party to a conspiracy to use the NPA’s prosecution process irregularly to attempt to influence politics.*8”

McCarthy eventually replied that he deemed Mpshe’s questions “irrelevant” and declined to answer them.

DA chairman James Selfe, said this week the NPA was clearly in contempt of court by continuing to refuse to hand over the spy tapes. “We’ll go to the Constitutional Court if we have to. We’ll go to the gates of hell to get them,” said Selfe.

Hofmeyr and Downer referred all questions to the NPA, which declined to answer them.

Asked if it had caved in to blackmail by dropping charges against Zuma, NPA spokesman Bulelwa Makeke said: “This is a sideshow *9 that the NPA would rather not be part of at this point, as it is still awaiting a court ruling on this matter.”

Ngcuka failed to answer questions that he asked to have sent to him. McCarthy and Hulley did not reply to e-mails and messages left for them.

With acknowledgement to Mzilikazi Wa Afrika, Rob Rose, Stephan Hofstatter and Sunday Times.

*1       Pre Bloemfontein leakage?


*2      Mokotedi Mpshe lied.

He must also go to jail.


*3      The people who had accused him of being an apartheid spy were also behind these tapes.

The people who accused him of being an apartheid spy were Mac Maharaj and Moe Shaik.

Moe Shaik is behind these tapes.

One of their mates paid millions of Rands to get these intercepts.

In order to effect the mandate "do whatever it takes to get him free". **


*4      Of course only Hofmeyr believed.

He believed indeed.

Hofmeyr is a party hack.

Hofmeyr is a simpleton.

Or is that the other way round?


*5      The decision is questionable and will be vulnerable on review.

It is being reviewed.

It's just a very slow and tedious process.


*6      Wrong - there was no abuse of process.

That is the process of investigation and indictment.

Discussing the exact timing of arrest or serving the summons is not part of the process.


*7      Wrong - McCarthy did not manipulate the prosecution.

Maybe McCarthy was manipulated to make the calls when the NIA had its tapes running.


*8      Truth be told, it was Mpshe's abuse of the NPA’s prosecution process to successfully influence politics.

Mpshe's and Hofmery's abuse of the NPA’s prosecution process set back the trial of Zuma and The Two Thints (represented by the happy Frenchman on the entire planet, Pierre Robert Jean-Marie Moynot) by between 5 and 10 years.

Mpshe's and Hofmery's abuse of the NPA’s prosecution process set back the NPA's integrity and destroyed its credibility for 100 years.


*9      A sideshow indeed.

Better than SA vs Scotland.

Buya Bheki, sidla izindlovu izbili *10.

**      Quiz of the Week

Who paid these millions to get the intercepts?

This is a very large one, so it's 120 kWh this time.

This is also a special week, so just this once, instead of a donation to an animal charity of your choice, I will make the donation to the Investigative Journalism Team of the Year Bail Fund.

Who's for the dupla?


*10     50% bonus for the correct translation.