IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE NO: 19577/2009
Inthe matter between:
DEMOCRATIC ALLIANCE- Applicant
and
THE ACTING NATIONAL DIRECTOR OF PUBLIC PROSECUTION - First Respondent
THE HEAD OF THE DIRECTORATE OF SPECIAL OPERATIONS - Second Respondent
JACOB GEDLEYIHLEKISA ZUMA - Third Respondent
and
RICHARD MICHAEL MOBERLY YOUNG - First Intervening Party
CCLL SYSTEMS (PROPRIETARY) LIMITED - Second Intervening Party
SUPPLEMENTARY CONFIRMATORY AFFIDAVIT
I, the undersigned,
MOKOTEDI JOSHEPH MPSHE
state the following under oath -
1. I am an acting judge in the Land Claims Court and a former Deputy National Director of Public Prosecutions ("Deputy NDPP) in the National Prosecuting Authority ("NPA"). Iwas the Acting NDPP from late September 2007 to late November 2009.
2. The facts contained in this affidavit fall within my personal knowledge. To the best of my knowledge and belief they are both true and correct.
3. I deposed to a confirmatory affidavit in this matter. I confirmed in general terms that the facts contained in William Hofmeyr's affidavit, in so far as they related to me, were true. My confirmatory affidavit was filed together with Hofmeyr's answering affidavit.
4. In their reply, the applicant invited me to provide details of Leonard McCarthy's attempts to persuade me that Zuma's prosecution should be delayed until after the Polokwane conference. It also asked me to explain the circumstances under which I signed a confirmatory affidavit confirming that I gave instructions for Zuma to be prosecuted.
McCarthy's attempts to persuade me that the prosecution should be delayed
5. I do not remember the exact date on which McCarthy spoke to me about delaying the announcement of the NPA's decision to prosecute Zuma. I do recall, however, that it was shortly after the Deputies meeting that took place on 29 November 2007, either on Monday 3 December 2007 (the date on which I received the s33 report) or the following day.
6. Although McCarthy was on leave for much of the period, he did come to Pretoria for various meetings. He was in Pretoria during the period 30 November to 6 December.
7. Marnus Steyn, a Senior State Advocate in the Pretoria office of the Asset Forfeiture Unit (AFU), was given a copy of the memory stick that contained the recordings of conversations between McCarthy and various others. It contained recordings and data records of interceptions of cellular phone calls and SMS messages of McCarthy's mobile number. The applicant also has a copy of a memory stick with all of this data on it. It includes all the technical information required to determine where McCarthy was when the calls were made.
8. Sleyn was asked to examine the data to establish McCarthy's whereabouts during 30 November 2007 and 6 December 2007. The applicant contends that McCarthy was in Cape Town during that period. For this reason, it maintains that McCarthy could not have spoken to me about postponing the Zuma prosecution.
9. Steyn's examination proved otherwise. It showed that McCarthy was not in Cape Town, but was in Pretoria during this time, or at least on a number of occasions. A copy of his affidavit is attached. He explains what calls he examined and the methodology he followed to establish McCarthy's location when he made or received various calls or text messages.
10. McCarthy had a habit of just coming into my office if he wanted to discuss something with me. He did not wait to make a formal meeting. He came to my office and told me that he wanted to talk to me about postponing the Zuma prosecution.
11. I did not initially support McCarthy's view that it was necessary to postpone the Zuma prosecution. I was aware of the prosecution team's views. I knew that they were anxious for the prosecution to commence as soon as possible. In the criminal trial, both Zuma and the presiding judge (Msimang J) had criticised the NPA's for delays in finalising the investigation. We anticipated that once Zuma was charged, he would launch a stay application. The delays in finalising the prosecution were bound to be an issue, as they had been in the past. We knew that any further delays in finalising the prosecution would count against us in the stay application. I knew that the prosecution team felt strongly that any delay in announcing or commencing with the prosecution was likely to have serious consequences in future proceedings, and would be portrayed as an attempt by the NPA to manipulate the case.
12. The decision to prosecute had already been made. It was made on 29 November 2007. On that day, the prosecution team made a presentation to the Deputies meeting in which they recommended that the charges against Zuma include a charge of racketeering. The recommendation was accepted. I asked the prosecution team to prepare the s33 report to Minister on my behalf. They sent me the report on Monday 3 December. It recorded that the decision to prosecute Zuma had been taken, and that the prosecution would be instituted as soon as possible because there was no legitimate reason to delay it - i.e. no reason related to the prosecution itself.
13. Initially, I did not agree with McCarthy that the prosecution should be postponed. His suggestion came out of the blue as it had never been mentioned to me. At the time I was not aware that McCarthy had spoken to Downer and Hofmeyr about delaying the prosecution.
14.Nevertheless, I accepted that McCarthy had the authority to make the decision. He felt strongly about the issue. I did not see the point of engaging in any serious debate with him. McCarthy was in charge of the investigation and prosecution. I did not have the authority to instruct him otherwise. That meant that he could decide when to institute the prosecution.
15. I had made it clear on more than one occasion that all decisions related to the Zuma prosecution would be left lo McCarthy and his team, and that I and the other Deputies would only give input and indicate our views. This was because McCarthy was under no legal obligation to consult with me or take account of my or our views.
16.McCarthy told me that it would be harmful to the NPA, particularly the DSO which was under severe attack at the time, if Zuma was prosecuted before the Polokwane conference. He believed that if Zuma were to be charged before the Polokwane conference, it would destabilise the DSO, the NPA and the country.
17. Because it was his decision to make, I fell that it was important for me to support his decisions. I needed to respect his views as the person in charge of the Zuma prosecution.
18. When McCarthy spoke to me about postponing the prosecution, I was unaware that he had also attempted to persuade Hofmeyr. I only learned about this when Hofmeyr questioned me about this, after the decision to postpone the prosecution had already been made.
19. I also did not know about McCarthy's discussions with Ngcuka, Mzi Khumalo or Ronnie Kasrils in the run up to the ANC's Polokwane conference. I became aware of this only during Zuma's representations. Although I gained the strong impression from listening to the recordings that McCarthy never agreed with Ngcuka, he nevertheless did as he was asked. Had I known what McCarthy's true motivation was, Iwould never have supported his decision to postpone the prosecution.
20. On 4 December 2007, I had a discussion with Downer about the section 33 report that he had prepared for the Minister of Justice and Constitutional Development (Minister). In the course of that discussion, I alerted him to the possibility of delaying the announcement of the decision to prosecute. As recorded in Hofmeyr's answering affidavit, Downer was not happy about this.
21. Downer did not disclose to me that McCarthy had also discussed the option of postponing the prosecution with him almost a month before, on 12 November 2007. I do not know why he did not tell me about this conversation when I spoke to him. I only learnt about it when Downer's notes were disclosed as part of the record of these proceedings.
22. I was due to meet with the Minister to brief her on the status of the prosecution. Ihad already considered the s33 report, prepared by the prosecution team, for the attention of the Minister. The report recorded that the NPA was ready to proceed with the prosecution. It also advised against delaying the prosecution for any reason. The report was sent to the Minister purely for information purposes. It did not seek her approval because the Minister's approval was not required.
23. I was aware that McCarthy was in contact with the Minister and regular contact with the Deputy Minister. I did not want it to appear that the NPA was divided on this issue.
24. I met with the Minister during the evening of 5 December 2007. I raised with her the issue that the announcement would possibly be delayed. It was clear to me that she agreed that the prosecution should be delayed. She was concerned that the NPA would be perceived as targeting Zuma ahead of the Polokwane conference.
25. The following day (6 December 2007) I telephoned phoned Downer to inform him of the decision to delay the Zuma prosecution. I told Downer that I had taken the decision to postpone the prosecution independently. I told him that it was my decision and my decision alone. I did so because Downer was aware that I had met the Minister the previous day. I did not want him to think that the Minister had interfered or that the Minister had unduly influenced me.
26. I did not tell Downer that it was McCarthy who had persuaded me that it was necessary and that delaying the prosecution was the better option for the NPA. I knew that the decision to delay the prosecution was likely to be unpopular. I knew that Downer would be unhappy with that decision.
27. As the head of the NPA, I felt that I had to support the decision. McCarthy had already made the decision. I did not want to blame it on others when I knew it was likely to be unpopular. As expected, Downer was angry about the decision to postpone the prosecution.
28. Soon after my conversation with Downer, I went on leave. My last day was on 14 December 2007. I was due back at work early the following year. When I went on leave I was under the impression that Zuma would be prosecuted in the new year.
29. On 19 December 2007, following Mbeki's defeat to Zuma, McCarthy decided to institute the prosecution. We know this because, on 19 December, he told Ngcuka that he hoped to be able to "move by Friday" - i.e. by 21 December 2007. On 21 December 2007 McCarthy told Downer to finalise the indictment. He did not consult me. He made the decision independently. He knew that he had the power to do so and he did.
30. I recount this event because it illustrates the way that McCarthy interacted with me and with the NPA's top management. McCarty and the prosecution team briefed us regularly. This collaborative approach to decision making in the NPA developed as a result o the policy requirement which required the NDPP to be kept informed when dealing with sensitive cases.
31. But, when it came to the actual decision about when to prosecute Zuma, McCarthy did not consult me. As stated in Hofmeyr's answering affidavit, I went on leave as from 14 December 2007. I was due back at work only in January the following year. When McCarthy phoned me to tell me that he was moving on finalising the prosecution, he did not do so to obtain my permission (Hofmeyr par 217).
The confirmatory I signed in July 2008
32. In July 2008 I signed a confirmatory affidavit that was filed together with the affidavit of special investigator in the DSO, Johan du Plooy. Du Plooy's affidavit is found at pages 0226 - 0362 of the Rule 53 record.
33. The applicant relies on the fact that I deposed to this confirmatory affidavit in support of their contention that I took the decision to prosecute Zuma and furthermore, that I made the decision to delay the prosecution. Du Plooy's affidavit does not deal with the decision to delay the prosecution until after the ANC's Polokwane conference. It is limited to dealing with the decision to prosecute.
34. In Du Plooy's affidavit, filed in the High Court of the Natal Provincial Division under case number CC 273/07 (8652/08), the decision to prosecute Zuma is described as follows:
34.1 In paragraph 91 (pp301 - 302) he records that the "process of drafting, consultation and assessment was completed by 11 December 2007 whereupon Mr Mpshe and Mr McCarthy considered the matter as a whole with a view to taking a decision on prosecution."
34.2 In paragraph 93 (p302) he records: 'The NPA was also satisfied that the prosecution team's theory and the manner in which the offences were committed amounted to racketeering in contravention of section 2(1)(e) of POCA was justified by the available evidence. Mr Mpshe accordingly issued the instruction to the prosecution team to reinstitute the charges without delay."
34.3 As far as I am concerned, this refers to my decision to approve the prosecution team's recommendation to include racketeering charges in the final indictment. Itook that decision. I am required to do so under s2(1)(e) of POCA. It is a decision related to the prosecution. It is not a decision to institute a prosecution.
34.4 In paragraph 94 (pp302 - 303) he records: "On Friday 28 December 2007 the NPA instituted a prosecution of the applicant and the Thint companies by serving on them a summons, an indictment and certain ancillary documents".
35 Prior to the 2007 decision, many in the NPA believed that the NDPP had the authority to institute decisions to prosecute, and there was much confusion about the issue as the NPA leadership and I sought to clarify this issue from November 2007.
36 In paragraphs 19 - 20 the s33 report, drafted by the prosecution team for Mpshe's signature, dated 3 December 2007, at 0364 - 0370 of the Rule 53 record, the decision making process is described in the following:
"The prosecution team gave a final briefing to the Acting OPP and the Deputy and Acting Deputy NDPPs during a meeting on 29 November 2007. They confirmed their earlier recommendations concerning the prosecution of Zuma and the two Thint companies.
In accordance with all of the above, the Investigating Director, Directorate of Special Operations, in consultation with the Head: DSO, me and the other Deputy and Acting Deputy NDPPs and the prosecuting and investigating team, has decided to institute prosecutions against Zuma and the two Thint companies on the charges indicated in the attached indictment."
37 Downer describes this process in his confirmatory affidavit as a "corporate decision". That terminology is internal to the NPA and was used by the team to describe the practice:
"Previous NDPP's had made decisions to institute prosecutions, including a decision to prosecute Zuma. In practice previous NDPPs had made the decisions to prosecute corporatively. By this I mean that the Investigating Director had made the formal decisions and signed the indictments in his name, in consultation and with the concurrence of the Head of the DSO and the NDPP, after a process that always included extensive consultations with the prosecuting team."
38 Downer further confirms that the prosecution team reported to McCarthy and that it took its instructions from him. He states that the role of the Investigating Director, Mngwengwe, was to make the formal decision by signing the indictments. However, he would only do so with the concurrence of the NDPP and McCarthy.
39 The NPA leadership at the time agreed that McCarthy, as the Head of the DSO, had full prosecutorial powers as he was deemed to be an Investigating Director himself, and had the power to overrule Mngwengwe as he was his superior. McCarthy was also the manager who was actually in charge of that investigation and prosecution, who guided the team when required, and who took all final decisions. This is demonstrated, for example, in the process during November and December 2007 where he met with the team, and participated in the drafting of the Constitutional Court application. He gave instructions to the team about what to put in the NPA's court papers. While he discussed possible changes with the prosecuting team, where there was not agreement, they correctly accepted his instructions as final.
40 I did not agree with what had appeared to become the view of the team, namely that the NDPP had the actual power to overrule the Head of the DSO, the Investigating Director and the team, and to make the prosecution decisions himself. Nor did my other senior managers. We believed that the NDPP did not have the power to do so. We also did not agree with the "softer" formulation that was sometimes used, namely that no decision would be taken unless the NDPP agreed.
41 We were particularly uncomfortable that in several affidavits in the past, decisions had been described as that of the NDPP without any qualification.
42 An example is the 2003 decision where the NDPP indicated that he had decided not to prosecute against the recommendation of the team. He had no such powers, and could not do so. However, in this case, McCarthy concurred with him, and in law McCarthy had the authority to make the decision.
43 Downer states this more strongly in his talk to Middle Temple on p16 where he makes it very clear that Ngcuka took an original prosecution decision. He continues to say that "it is debatable whether the framers of the Constitution ever intended the NDPP to have original powers of decision at all."
44 He also indicates in par 2 that Pikoli made an original prosecution decision in 2006.
45 We believed that it was important to implement the correct practice, namely that in terms of NPA policy, the Head of the DSO and the prosecution team had to brief the NDPP on sensitive cases. As part of this process, they may take the views of the NDPP into account, or even be persuaded, to change their decision. But we wanted to make it clear that the decision to prosecute Zuma was and remained that of McCarthy, in his capacity as head of the DSO with the powers of an Investigating Director.
46 Even if our view that the NDPP does not have original powers was not correct, I believed that it was not desirable for me to take the actual prosecution decisions as that would make it very difficult for the NDPP to exercise the review powers in terms of section 179(5) of the Constitution fairly and meaningfully. This was argued in the SCA in the 2008 stay litigation, where it was held that it made no sense for the NDPP to have a formal review of his own decisions.
47 Thus, by the time that the 2007 decision was imminent, any confusion as to the correct legal position had been resolved in the mind of top leadership of the NPA. That is why, in all my interactions with McCarthy and with the prosecution team, I made it clear that the management of the Zuma prosecution would be left to them. The record bears this out.
48 However, the lack of clarity continued after the meeting of 29 November. For example, as reflected in the review record at 057/12, the first draft of the s33 report prepared by the team reflected that I, ie the NDPP, had taken the decision. Hofmeyr, who was involved in the matter at the time, pointed out to Downer and counsel that the s33 report should reflect the legal position as agreed at the meeting of 29 November - i.e. that the Investigating Director took the decision "in consultation" with the NDPP and the Deputy NDPPs. I must stress that we did not use that formulation in the strict legal sense of the NDPP having a veto right. This is clear from the fact that it stated it was "in consultation" with the other Deputy NDPPs who had no legal powers in relation to the decision.
49 It appears that this issue was either not fully understood by the team, or perhaps they had become so invested in the previous formulations that it was difficult to change. This can be seen in some of their formulations in their notes in December 2007, and was clear in the draft papers prepared for the stay application in July 2008.
50 This issue came to the fore again during the drafting of papers in the 2008 stay application where the team did not accept the above view. Thus the NPA sought an opinion from Wim Trengove SC. He advised that although it was arguable that the NDPP may have the authority to institute proceedings, the most likely interpretation of s179(3)(b) was that the power of prosecution vested in the hands of the DPPs. Although the NDPP could interfere in a prosecution, the basis on which he could do so was limited by s179(5). He recommended that all references to the NDPP making decisions should be removed. A copy of the opinion will be made available at the hearing of the matter.
51 Although the papers were accordingly amended to do so, this was unfortunately not done in all instances. This was due to time pressure as the opinion was only provided 2 days before the filing date, after all the drafts had been already been prepared and considered.
52 After having read the affidavits again, it is apparent that the imprecise manner in which the decision making process has been described in Du Plooy's affidavit has resulted in the decision making process being unintentionally mischaracterised.
48 I wish to reaffirm that as far as I was concerned, I did not have the legal authority to institute proceedings against Zuma. Consequently, I did not take the decision to charge Zuma, nor did I take the decision to delay the prosecution.
49 I should point out that the Third Respondent supported and continues to support this interpretation that the NDPP has original prosecution powers, which is partly why the stay application continued to be argued on that basis.
50 I should point out that, as a result of the views of the Third Respondent, the appeals to the SCA and CC was essentially argued on the basis the NDPP indeed had to power to institute prosecutions,. The result is that the process was described inaccurately in the papers. Neither Hofmeyr nor I were involved in overseeing that litigation. Nor were we required to sign confirmatory affidavits. We were therefore unaware of the incorrect formulations until much later.
Signed
MOKOTEDI JOSHEPH MPSHE
30 June 2015
