And even if it was a crime, Zuma’s lawyers apparently argued, it was a crime where there are “no victims”.
These startling insights into Zuma’s 2009 written representations to the National Prosecuting Authority (NPA) are contained in a detailed NPA analysis document, which City Press has obtained.
This synopsis is attached to a memorandum dated 3 March 2009 and drawn up by Advocate Billy Downer, the senior state prosecutor who was seconded to the now defunct Directorate of Special Operations (DSO, also known as the Scorpions) for the Zuma investigation.
The document indicates that page 22 of Zuma’s 88-page written submission deals with one of Zuma’s arguments, which the prosecutors restate as follows: “Western paradigm brands this criminal.”
“This” is probably a reference to the types of loans Zuma’s ex-financial adviser, Schabir Shaik, claimed to have innocently given him. Shaik was eventually convicted.
In their scathing response to this point, the prosecutors write: “The law prescribes that it is criminal. Until the law is amended to provide that institutionalised cronyism is not criminal, the ‘Western paradigm’ will have to be accepted.”
The response to the argument that there are no victims to the crime is similarly dismissive: “There are victims. The general public.”
Based on this synopsis, Downer’s memorandum emphatically recommends that the NPA rejects Zuma’s representations.
“Our conclusion is that even in respect of those issues regarding the merits that Zuma does address, there is no adequate answer to the state’s allegations.
“If anything, Zuma’s representations confirm the structure of the general corruption.”
The document also reveals that Hulley apparently argued that one of the considerations that militated against Zuma’s prosecution was that it would cause “general unrest through dissatisfaction with the NPA”.
Downer and the other prosecutors labelled this “blackmail”. “The argument is just as much that not prosecuting will lead to mass dissatisfaction.”
Downer makes a similar point about the so-called spy tapes – intercepted recordings of telephone conversations between the ex-head of the DSO, Leonard McCarthy, and former NPA head Bulelani Ngcuka – saying they amounted “to little more than blackmail”.
“They should be reduced to writing under oath and presented in the normal course, if Zuma wishes to continue to rely on them.”
This week, City Press was granted access by the court to various documents that have been handed to the DA in its court application to have acting NPA head Mokotedi Mpshe’s decision to drop corruption charges against Zuma overturned.
Included among them is the memorandum referred to by Ngcuka in the Sunday Times last week, which he used to accuse Mpshe of misleading the public about the reasons the charges were dropped.
The Scorpions memorandum Ngcuka referred to, dated 6 December 2007, makes it clear that Mpshe had already made a “final decision” that Zuma would not be charged until after the ANC’s 2007 elective conference in Polokwane.
This appears to contradict what Mpshe told South Africans when he announced that charges had been dropped.
In his statement announcing the decision, Mpshe argued the timing of charges against Zuma was manipulated by McCarthy for an illegitimate purpose, namely to influence the Polokwane conference.
Mpshe used the spy tapes, in which they discussed the timing, as a justification for this.
But Mpshe’s “final decision” appears to have been made at least a week before one of the more pertinent discussions between McCarthy and Ngcuka regarding the supposed timing of the matter.
Scorpions team contemplated resigning
In the memo, Downer expresses the bitter unhappiness of the Scorpions team following Mpshe’s decision, revealing that the team had even contemplated resigning.
“We have repeatedly motivated in the strongest possible terms why it is particularly important in the instant case that the prosecutorial decisions must be made purely for prosecutorial reasons,” he writes.
“The team feels so strongly about these principles that we have given serious consideration to terminating our involvement in this investigation.”
In this memo, Downer notes that Mpshe had already approved an application for Zuma to be charged with racketeering.
This application, also among the documents obtained by City Press, contained a prescient appraisal by the prosecuting team of what was to come.
The NPA advocates predict it is unlikely that Zuma would fight the case against him on the merits, which had proven “disastrous” for his former financial adviser Schabir Shaik.
“It is anticipated that they will continue to use every legal device and stratagem to prevent the matter coming to trial.
“These will include an application for a permanent stay of prosecution [and consequent appeals], attacks on the bona fides and integrity of the prosecution team, the DSO and the NPA, [and] the use of the media to ramp up popular and political opposition to the prosecution.”
Lawson Naidoo, the executive secretary for the Council for the Advancement of the South African Constitution, said the statement was “quite shocking”.
He pointed out that South Africa was a signatory to the UN Convention against Corruption, the African Union (AU) Convention on Preventing and Combating Corruption, as well as the Protocol Against Corruption of the Southern African Development Community (SADC).
“So are you saying that the AU and SADC are now following something that is Western?”
On Friday, the ANC said it was “unfazed” and there was nothing new about the story. The party’s spokesperson, Zizi Kodwa, said: “People peddle lies in the public to drive vindictive agendas against President Jacob Zuma. Nothing of credible note has been presented so far.”
Zuma’s spokesperson, Mac Maharaj, did not respond to questions on the president’s views on corruption by the time of going to press.
By: Charl du Plessis and Carien du Plessis, City Press