Mokotedi Mpshe's Zuma tapes affidavit: It's all about Leonard McCarthy

On Tuesday, several days late, former Acting NPA Head Mokotedi Mpshe – who shouldn’t be confused with all the other former acting NPA heads – finally filed a supplementary affidavit in response to claims made by the DA in its submission. We would try to list all the legal papers lodged as part of this case, but there simply isn’t enough server capacity in the whole of Utah to manage it.

Mpshe’s papers begin to explain, in more detail, exactly what happened when the decision to charge Zuma was made. Mpshe’s version really matters, not just because he was in charge of the NPA overall at the time (albeit only in the way that someone who is not the president could be) but because he took the formal decision in the end to withdraw the charges.

At this point it’s pertinent to back up a bit. In 2007, before the ANC’s Polokwane Conference, there was a great deal of speculation about how and when the NPA would charge Zuma. That he would be charged was more or less a foregone conclusion; the conviction of Schabir Shaik for paying him money corruptly compelled Zuma to be charged for receiving that money. What was not known was the timing: would it happen before Polokwane, at a time when the NPA appeared to be firmly under the grip of then-President Thabo Mbeki, who was running against Zuma for the ANC leadership?

What has been apparent since 2009 is that the Scorpions head at the time, Leonard McCarthy, was the main player in the manipulation of the timing of the charges – the ‘Zuma Spy Tapes’, which revealed he had been discussing the timing with former NPA Head Bulelani Ngcuka, told us that.

Now, Mpshe goes into far more detail about what he knew, and what McCarthy actually did.

Perhaps most importantly, he says he had no idea that McCarthy had been talking to Ngcuka about all of this. He also didn’t know that McCarthy was having similar discussions with then-Intelligence Minister Ronnie Kasrils as well. Both Ngcuka and Kasrils were surely allies of Mbeki at the time. Mpshe appears to be suggesting that he was blindsided, or undermined by McCarthy.

Mpshe goes into detail about McCarthy saying to him that he wanted to delay the charging of Zuma until after Polokwane, because “[h]e believed that if Zuma were to be charged before the Polokwane Conference, it would destabilise the DSO (the Scorpions), the NPA and the country”. But, despite that dark warning, Mpshe still believed the charges should be lodged, for the simple reason that the prosecution team was ready.

However, he states quite categorically that McCarthy had the legal authority to lodge the charges, and yet he did not (at one point, there was significant legal debate about the actual powers of the National Director of Public Prosecutions, and about whether the NDPP can actually institute charges, or only review charges lodged by their deputies). Mpshe goes on to say that “[b]ecause it was his decision to make, I felt it was important for me to support his decisions”. In other words, he was the boss, but couldn’t make the decision himself; however, being a good boss, decided to back McCarthy in public anyway.

Nonetheless, two paragraphs later, Mpshe’s frustration with McCarthy is laid bare. “Had I known what McCarthy’s true motivation was, I would never have supported his decision to postpone the prosecution,” he writes. Clearly, there is a sense of betrayal that remains. The anger Mpshe felt towards McCarthy when he made the announcement that he was dropping the charges; that "my sense of justice has been offended" back in 2009, still rankles.

Mpshe also points out that in the end, Zuma was charged without his input. It may be a fine legal point, but he maintains that "[w]hen it came to the actual decision to prosecute Zuma, McCarthy did not consult me." He adds: "When McCarthy phoned to tell me that he was moving on finalising the prosecution, he did not do so to obtain my permission."

Certainly one gets the feeling that Mpshe had very little control. Perhaps nursing this particular grievance for so long has helped him sleep at night, between jobs as a peripatetic acting judge, which is surely the most he can hope for now. (The appointment of acting judges is in the gift of the Justice Minister; a permanent appointment requires a public hearing, and it’s fairly easy to predict how that would go.)

Mpshe also says that at one point he met with then-Justice Minister Brigitte Mabandla, who agreed with McCarthy, as "[s]he was convinced that the NPA would be perceived as targeting Zuma ahead of the Polokwane Conference". But, he says, he wasn't going to be seen to be acting at her behest, as this decision was not up to her (interestingly, this point became vital during the Ginwala Inquiry into the fitness for office of Vusi Pikoli, where Mabandla tried to stop Pikoli from charging Jackie Selebi).

Mpshe's papers make for interesting reading, and do shed some light on what exactly happened. Even if parts of them may well prove to be contradictory, and don't actually do anything to help his legacy.

That said, like all the other papers lodged by the NPA, these don't address what is surely the central issue: was there enough evidence against Zuma to go to court? It's a point the DA is currently hammering home.

A lawyer could easily argue that the NPA, and Mpshe, have to stick to the issue at hand, which is the DA contention that it was wrong to withdraw the charges simply because there was manipulation in the timing of when Zuma was charged. It may be viewed as such a weak point on which to drop the charges that it is unlikely to stick.

And that takes us back to the original decision to withdraw the charges in the first place.

Ask yourself: What would have happened to the Zuma case if Zuma had not won at Polokwane, and had not been able to use the might of the ANC to force Mpshe to do what he did? Even if Mbeki had somehow been removed from the picture, would he have faced those corruption charges? After a High Court, the Supreme Court of Appeal and the Constitutional Court all said that Shaik had paid him the money corruptly?

And if the answer to that is yes, what does that tell us about Mpshe's decision? DM

Photo: Mokotedi Mpshe (Daily Dispatch)