When the history of our democracy is written, Friday 16 August 2013 will be an important date.
The public focus on that day was, understandably, the first anniversary of the Marikana massacre.
As a result, many people may have missed the news that the North Gauteng High Court ordered the National Prosecuting Authority (NPA) to hand over the transcripts of the so-called “spy tapes” and related memoranda to the Democratic Alliance within five days.
This was a decisive moment in a case that has dragged on for four years, through 3 hearings (so far) and has cost the DA millions. We are committed to seeing this through to the end because the future of our democracy hinges on it.
When this case is stripped down to its essentials, it is about the core principle of any constitutional democracy: that no-one (not even the most powerful person in the land) is above the law. The outcome of this case will determine whether the politically powerful in South Africa can manipulate the institutions of democracy in their own interests; or whether these institutions have the strength and independence to hold us all, even the President, to account.
The “spy tapes” are important because the NPA used them as the main reason for its decision, just before the 2009 general election, to drop over 700 counts of corruption, fraud, money laundering and racketeering against President Jacob Zuma.
The tapes are secret recordings, made in 2007, of conversations between the head of the now disbanded Scorpions, Leonard McCarthy, and the then National Director of Public Prosecutions Bulelani Ngcuka.
We have never been told who authorised their phones to be tapped, or why. Nor do we know how the tapes of their conversations landed in the hands of Jacob Zuma’s legal team. Neither has the NPA given reasons to support its assertion that the tapes reveal a “political conspiracy” against Zuma. Or why this should nullify the charges against him.
The NPA simply discontinued the prosecution.
The Democratic Alliance decided to seek a judicial review of this decision. We did so because we believe that it is essential for the National Prosecuting Authority to give credible and rational reasons for dropping charges against politically powerful people. Otherwise the possibility exists that charges against powerful individuals could be withdrawn for political, and not legal, reasons. We have to ensure that the institutions of our criminal justice system remain independent. If they become tools in the hands of powerful people to protect themselves and their allies and persecute their opponents – it will be end of the rule of law and the death of our democracy.
So, on Friday 23rd August 2013, those tapes and other documents must be handed over to the DA’s lawyers. But we are not holding our breath. We expect the President’s lawyers to find yet another way to drag this case out. After all, they have managed to use every legal mechanism available, over ten years, to keep their client from ever having to go to court to answer the manifold charges against him. And if the case ever gets to court, they will no doubt find ways of dragging the trial out for another decade.
Very few other people would ever be able to do this because of the prohibitive legal costs involved. But President Zuma’s marathon legal diversion has been financed, from the start, by taxpayers’ money. His costs in this case will undoubtedly exceed the R206-million spent on upgrading his private residence in Nkandla.
There is something particularly ironic and tragic about public money being used to subvert the very democracy for which so many struggled for so long.
So finances won’t prevent the President from appealing the High Court’s order on Friday. The more interesting question is this: will the Supreme Court of Appeal agree to hear the case? After all, a full bench of that court already ruled, early in 2012, that the relevant documents and tapes must be handed to the DA’s lawyers within 14 days.
The NPA passed the buck to Zuma’s lawyers who said that all the documents were privileged and confidential and could not be handed over. So they simply ignored the order.
That little delaying tactic required us to go back to the High Court seeking an order to compel the NPA to execute an order already handed down by the Appeal Court 18 months earlier – an unprecedented situation in a democracy.
So now we wait to hear what Zuma’s lawyers will think up next to prevent the truth from emerging. And we wait with particular interest to see whether the NPA will abide by the latest court order, or effectively assist President Zuma in his delaying tactics. This, on its own, suggests that the NPA’s decision to drop the charges was neither rational nor legally based.
But there is more.
The current National Director of Public Prosecutions Nomgcobo Jiba serves in an “acting” capacity. The position has been vacant since the Democratic Alliance successfully petitioned the court to pronounce the previous incumbent, Menzi Simelane, unfit to hold that office, and nullified President Zuma’s appointment of him in 2011. According to the constitution the President appoints the National Director of Public Prosecutions.
Now we have the bizarre and unprecedented situation where an Acting NDPP has to determine the fate of the man who has the power to appoint her (or anyone else) to the position permanently.
The question arises: does the President delay the appointment of suitably qualified, “fit and proper” people to such positions to serve his own interests?
Our constitution writers did not anticipate this conflict of interests, because they did not anticipate that voters would overwhelmingly elect a Presidential candidate who refused to go to court to answer charges of corruption, fraud, money laundering and racketeering.
But that is what happened in the general election of 2009.
And in the end, the future of democracy lies in the hands of the voters.
That is where the DA comes in. We were also elected by millions of voters and we will execute their mandate to defend the constitution and the rule of law. We know that the future of every single South African (whatever their political affiliation) depends on it.
And we will defend these principles for however long it takes and however much it costs.