Zuma spy tapes: 'State must lead by example'

Pretoria - The pursuit of one individual, President Jacob Zuma, could not trump the NPA’s independence, the High Court in Pretoria heard on Wednesday.

The National Prosecuting Authority’s senior advocate Hilton Epstein argued that former acting National Director of Public Prosecutions Mokotedi Mpshe had exercised his discretion, in line with powers given to him by the Constitution and the NPA Act, when he decided to drop corruption charges against Zuma in April 2009.

The court could only interfere in such decisions in exceptional circumstances.

The DA wanted the court to set aside Mpshe's decision to drop corruption charges against Zuma as irrational and unlawful. The NPA was defending the decision.

The decision was partially based on the contents of taped conversations between Leonard McCarthy, then head of the Scorpions, and former NPA head Bulelani Ngcuka, about whether to serve the indictment on Zuma before or after the ANC's Polokwane conference in December 2007.

These recordings became known as the spy tapes.

At the conference, Zuma replaced former president Thabo Mbeki as ANC president. He was sworn in as the country’s president in May 2009, shortly after the charges against him were dropped.

Epstein said South Africa was a young democracy and it was important that the state led by example.

"If government becomes the law breaker it breeds contempt for the law," he said.

He argued that even if Mpshe's decision might have been unreasonable, this did not make it irrational.

"Maybe the majority of people would not have taken the decision, but it was his discretion. Unless there is an application that he was mala fide (bad faith) or did not apply his mind, the decision stands," he said.

Epstein said it was clear that McCarthy was in charge of the whole prosecution, had approached individuals to delay it and manipulated it to favour Mbeki.

"McCarthy was pursuing his own political agenda and using the NPA as an instrument to achieve his agenda," he said.

Epstein argued that McCarthy was also the man behind the Browse Mole report, which implicated Zuma in an alleged plot to overthrow the government, and which had as it sole purpose to discredit him.

In a special intelligence report it was later recommended that action should be taken against McCarthy.

"McCarthy was not some maverick outsider to the NPA. He was for all purposes the NPA," he said.

Epstein argued that the contents of the spy tapes were so shocking that they reduced the lead prosecutor Billy Downer to tears and filled Mpshe with a sense of betrayal.

Judges Aubrey Ledwaba, Cynthia Pretorius and Billy Mothle asked Epstein why Mpshe took his decision to drop the charges against Zuma on 1 April, and not earlier, when he was briefed about the spy tapes.

Epstein said although Mpshe was briefed, the contents might have taken on a different meaning and he realised the extent of what was going on behind the scenes when he listened to them himself.

"It was not only Mpshe who was shocked when he listened to tapes. It was also Downer. He says he was reduced to tears," Epstein argued.

The application continues.

This article first appeared on News24 – see here.