“Give us the tapes, give us the tapes, give us the tapes,” chanted Democratic Alliance Leader, Helen Zille and her counterparts outside the Bloemfontein Supreme Court of Appeal on Thursday.
The past few days have seen the “spy tapes saga,” as it is popularly referred to, dominate front pages alongside sensational headlines like “Is this the beginning of the end for Zuma?” On 28 August 2014, after a five-year-long battle, the Supreme Court of Appeal (SCA) ruled that the National Prosecuting Authority (NPA) must hand over the surveillance recordings that resulted in the NPA’s decision to drop fraud and corruption charges against Jacob Zuma in 2009, to the Democratic Alliance (DA).
What are these so-called Spy Tapes that the DA seems to be so passionate about? Why are they so significant? The best way to answer these questions would be to go back to where it all started.
The case of the Spy Tapes ultimately ties back to the controversial Arms Deal scandal of 1999 when our government acquired arms for billions of rands amid rumors and allegations of bribes, kickbacks and other irregularities.
After being arrested in 2001 for the possession of classified documents documents pertaining to the Arms Deal, investigators found that Zuma’s former financial advisor Shabir Shaik was involved in corrupt dealings with Zuma as well as fraud.
In 2002, the Mail & Guardian broke the story that the Scorpions were investigating then Deputy President Jacob Zuma for allegedly attempting to secure a R 500 000-a-year bribe from French defense contractor Thompson-CSF. Thompson-CSF formed part of the consortium which successfully bid for the R6 billion contract to supply the South African Navy with new corvette warships during the arms deal of 1999.
Shaik was brought to trial in October 2004 and pleaded not guilty. In May 2005, Shaik was convicted on all counts for his fraudulent and corrupt relationship with Zuma, which also included bribery.
On 30 May 2005, Shaik was found guilty by the Durban High Court for paying Zuma R1.2 million to further their relationship and for soliciting a bribe from Thompson-CSF. After his attempt at a petition to appeal the Supreme Court of Appeal failed, Shaik started serving his 15 year sentence on 9 November 2006.
Following the conviction of Shaik, in June 2005, then NPA head Bulelani Nqcuka’s predecessor Vusi Pikoli announced the decision to charge Zuma. Zuma was later sacked by then-President Thabo Mbeki as his deputy president.
The crime intelligence operation began to secretly tap conversations between Nqcuka and former Scorpions boss Leonard McCarthy about the timing of the charges against Zuma. The charges were brought in the lead up to the 52nd National Conference of the African National Congress, held in Polokwane between 16 December and 20 December 2007. The reintroduction of the charges against Zuma posed a threat to his campaign of becoming ANC president. Zuma was later elected president, ousting Thabo Mbeki as president of the party.
On the 28th December 2007, a week after Zuma was elected president of the ANC, the Scorpions served him with an indictment to stand trial in the High Court.
On 15 August the Scorpions raided Zuma’s houses in pursuit of any material relating to the corruption charges against Zuma. On July 2008, the Constitutional Court ruled that the raids were valid. However, on 5 September 2008, in a water watershed moment for Zuma’s now revived career, the Pietermaritzburg High Court ruled that the decision to prosecute Zuma on fraud and corruption charges was rendered invalid due to undue political interference and that Zuma should’ve been given an opportunity to make a representation as to why he should not have been charged. “I believe the National Directorate of Public Prosecutions ought to have heard the applicant’s representation,” said Judge Chris Nicholson.
Following a unanimous decision by the Supreme Court of Appeal bench, led by Judge Louis Harms, Chris Nicholson’s ruling that Zuma’s prosecution was invalid was overturned on 12 January 2009.
Five Supreme Court of Appeal judges overturned Nicholson’s ruling that Zuma’s prosecution was invalid because the National Prosecuting Authority had failed to invite the ANC leader to make representations about the criminal allegations against him before charging him.
Later in April, then acting National Director of Public Prosecutions Mokotedi Mpshe discontinued the prosecution of Zuma. Mpshe cited a political conspiracy against Zuma between Nqcuka and Mccarthy based on the secret recordings between the two which are now known as the “Spy Tapes”. After releasing excerpted transcripts of the tapes, Mpshe described McCarthy’s conduct as a “serious abuse of processes”. The NPA got hold of the recordings from Zuma’s legal team.
Read the NPA’s full statement on the Zuma case from 2009 here.
Mpshe’s decision to discontinue the fraud and corruption charges against Zuma prompted the DA to go to court to have this decision reviewed. The DA tried to gain access to the recording cited by Mpshe but prosecuting authorities refused to deliver the tapes on the grounds that it contained representations made on a confidential basis.
During March 2012, the Supreme Court of Appeal ruled that the National Director of Public Prosecutions produce the record cited by Mpshe to discontinue the charges against Zuma.
The NPA failed to comply with the order to hand over the reduced record of its decision to drop charges against Zuma in 2009, including the spy tapes to the DA. Despite the State Attorney saying it was contingent on Zuma’s lawyers not objecting on the grounds of confidentiality, Zuma’s legal team did object and thus did not hand over the record.
The NPA failed to hand over the tapes after the State Attorney said that it was contingent on Zuma’s lawyers not objecting on the grounds of confidentiality.
Zuma’s lawyers did object, so the NPA did not hand over the record.
The battle over the spy tapes then dragged on throughout 2012 and 2013 as the DA refused to back down, lodging numerous applications in a quest to force the NPA to hand over the tapes. Zuma’s legal team also refused to give up and continued to lodge further appeals.
Fast forward to August 28 2014 and the NPA have been ordered by the Supreme Court of Appeal to hand over the tapes within five working days. “We have complied and we did come to lodge the documents,” said NPA spokesman Nathi Mncube outside the Pretoria High Court on Thursday, where DA members and supporters gathered to collect the recordings.
The DA appears to have half-won the battle in their quest to have Zuma’s corruption charges reinstated now that the Spy Tapes have been handed over. It is still a mystery what those tapes will reveal, but the party’s lawyers now have access to the evidence cited to drop the charges against Zuma. If it doesn’t hold up, they’ll want the corruption charges reinstated.
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