The Democratic Alliance (DA) welcomes the decision of the Office of the Inspector-General of Intelligence (OIGI) to probe how Jacob Zuma's lawyer, Michael Hulley, obtained tape recorded conversations involving former Scorpions boss Leonard McCarthy and former National Director of Public Prosecutions Bulelani Ngcuka.
We would now call on the OIGI to consider whether Mr Hulley can be charged in terms of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 with illegally receiving or procuring communication in the course of its transmission. In terms of sections 49(1) and 51(1)(b)(i) of this Act, such an offence is extremely serious - carrying with it the possibility of imprisonment for a period of up to 10 years.
The Acting NDPP, Adv Mpshe, has admitted that "it was not clear whether the recordings had been intercepted legally or were legally in the possession of the defence". In addition, Adv Mpshe said that the National Intelligence Agency confirmed that it had recorded a portion of the conversations legally, and these could be shared legally with the NPA. The obvious implication is that the legality of the rest of the recordings is dubious. As such, the OIGI must also investigate the legality of the recordings in Mr Hulley's possession. Legislation only allows for phone tapping to be carried out within very strict parameters, and if Mr Hulley is in possession of illegally recorded material then he and the others involved in this must be prosecuted.
In addition, we must establish whether the tape recordings obtained from the NIA were themselves legally recorded. If so, which judge gave permission for the phone tapping to take place, and under what circumstances?
Since these tape recordings point only to political motivation in the timing of the NPA's charging of Mr Zuma, and not to any actual tampering with evidence, their use by the NPA as a basis for dismissing the charges is highly dubious. In addition to this, the fact that some or all of the tapes may have been illegally recorded, and that their possession by Mr Zuma's legal team remains unexplained, clearly requires an urgent and thorough investigation.
We would urge the OIGI to ensure that this investigation is carried out in the most transparent manner possible, so that the public see justice is done.
Finally, though we welcome the OIGI's decision to investigate this matter, we find it extraordinary that the DA's request for precisely the same investigation to take place was turned down. We were told that the tapes were of a "speculative nature" and OIGI chief director Imtiaz Fazel even stated that "no evidence of these allegations has been made available to the office of the Inspector General". Now Mr Fazel says "I would say since the matter broke in the media we started to look into it". This is clearly contradictory, and requires an explanation.
In addition, the DA was told by the OIGI that it would not investigate the matter because it was not mandated to carry out such an investigation without approval from Parliament. The fact that the NPA's request for precisely the same investigation to be carried out has been acceded to proves that the OIGI ought not to have rejected our request in the first place.
Statement issued by Democratic Alliance chip whip, Ian Davidson, April 8 2009
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