Spy Tapes: Contradictions in Mpshe's reasoning

Pretoria – The High Court in Pretoria on Friday highlighted three contradictory versions it picked up in former acting national director of public prosecutions Mokotedi Mpshe's decision not to prosecute President Jacob Zuma in 2009.

The court heard that:

- Mpshe's first version was that he independently made the decision;

- The second was that he was influenced by then-Scorpions boss, Leonard McCarthy; and

- The third was that he was simply supporting a decision made by McCarthy. 

Delivering his judgment, Deputy Judge President Aubrey Ledwaba said former president Thabo Mbeki's speech following Mpshe's decision not to prosecute Zuma suggested that Mpshe had arrived at the decision on his own. 

"The first version is that Mr Mpshe took the decision, which was his and his alone. The reason being in consideration of the speech of the then-president Mbeki, calling for calm ahead of the ANC election in Polokwane," Ledwaba said. 

"The second version is that he took the decision after being influenced by Mr McCarthy. He does not indicate when this alleged influence occurred and why he allowed himself to be influenced, while knowing of Mr McCarthy's participation in the Browse Mole matter since 2007."  

The court heard that Mpshe had written a letter to Zuma's lawyer, Michael Hulley, in which he claimed that McCarthy had had no influence on his decision. 

In the letter, Mpshe said that after "anxious consideration", he concluded that his decision to indict Zuma was not influenced improperly or otherwise by McCarthy. 

"This is not withstanding the fact that we both agreed on the decision. Even in the event that I am wrong in this conclusion, having now again reconsidered the decision, even taking into account your representations, I remain convinced that it was and is a correct decision," Ledwaba read from Mpshe's letter.

The third version was that McCarthy had made the decision and Mpshe had felt he had to support it.

"If this was indeed so, why did he have a difficulty in disclosing this unpopular decision that was not his to [the National Prosecuting Authority's] Mr [Billy] Downer who at the time was reporting to Mr McCarthy," Ledwaba asked.  

'Full confidence in our legal system'

He found that Mpshe had acted irrationally when he decided to drop the almost 800 charges against Zuma. 

In September 2008, Pietermaritzburg High Court Judge Chris Nicholson dismissed criminal charges against Zuma, citing a political conspiracy to influence the case by Mbeki and others.

Nicholson's decision was taken to the Supreme Court of Appeal and overturned. Zuma subsequently appealed to the Constitutional Court, setting in motion a direct approach to the NPA to make written and oral representations on why the case should be dropped.

On April 6 2009, then-NPA head Mpshe said recordings of telephone conversations between McCarthy and former NPA boss Bulelani Ngcuka showed political interference in the decision to charge Zuma.

The two were recorded discussing the timing of bringing charges against Zuma. The charges related to his alleged involvement in the country’s multibillion-rand arms deal.

Zuma’s former financial advisor Schabir Schaik was found guilty of fraud and corruption by the Durban High Court in June 2005. He tried to solicit a bribe for Zuma from a French arms company involved in the deal.

On April 7 2009, the charges against Zuma were withdrawn in the High Court in Durban.

Zuma was sworn in for his first term as president in May that year, following general elections.

ANC national spokesperson Zizi Kodwa said that the ANC had consistently supported the legal maxim that justice delayed is justice denied. 

"This matter has dragged on for close to a decade and the ANC is pleased, therefore, that it now appears closer to resolution, seven years since the NPA decision," he said. 

"We once again reaffirm our full confidence in our legal system, with its adequate and extensive checks and balances designed to protect and promote accountability and transparency."