Zuma lawyer avoiding prosecution on 'spy tapes'
Publish date: 17 October 2017
Issue Number: 4328
Diary: Legalbrief Today
Category: General
President Jacob Zuma’s attorney, Michael Hulley, may avoid prosecution for being in possession of the so-called spy tapes as no one has challenged the legality of the recordings, says a Business Day report. It notes the tapes are recordings of telephone conversations between the boss of the now defunct Scorpions, Leonard McCarthy, and the former NPA head, Bulelani Ngcuka. The conversations were perceived to have reflected political interference in the timing of the serving of an indictment on Zuma, who was facing corruption charges. The issue of the spy tapes was again under the spotlight in the SCA last week. How or from whom Hulley obtained the recordings has never been revealed. The legality of the spy tapes has also never been challenged in a court. Constitutional law expert Pierre de Vos said Hulley should be prosecuted, but a certificate proving the validity of the recordings was required. If the recordings were valid, it would have been illegal for anyone to pass them on to Hulley and illegal for the attorney to accept them. In his SCA judgment, Judge Mahomed Navsa said there were ‘heavy penalties’ for contravention of the Regulation of Interception of Communications and Provision of Communication-Related Information Act, including those related to prohibition of disclosure. Navsa said that a judge’s certificate – which would have indicated the breadth of the authorisation to record telephone conversations – was not made available to the Appeal Court or the High Court. The NPA would not comment on whether Hulley could face prosecution, notes the report.
Minister of Finance Malusi Gigaba tip-toed around the Zuma saga in Washington yesterday, saying, on the one hand, that it's ‘quite concerning’ for the economy – because it ‘raises the political risks’ – that corruption charges against the President have been reinstated, but quickly adding the decision ‘affirms the independence of our courts, the supremacy of the rule of law and the Constitution as the supreme law of the land’. The Minister, who is in Washington as part of a delegation representing SA at the 2017 annual meetings of the International Monetary Fund and World Bank Group, made the comments during an interview with CNN’s Richard Quest, says a Fin24 report. Gigaba added: ‘It (the judgment) says that South African courts and South African judges are independent enough to take decisions about whomsoever, regardless of their social or political standings.’ The Minister noted the fact that SA had an independent judiciary must ‘raise the confidence of investors’.
The media continued to examine Zuma’s options yesterday. In his assessment of the way forward, constitutional law expert Pierre de Vos, on The Conversation site, says the judgment pointed out that Zuma and his lawyers have done everything in their power to prevent a situation where the President would have his day in court and would have to answer to the charges levelled against him. This, he suggests, is why the President and his lawyers will continue to try to stop the prosecution by submitting new arguments to the NPA on why the charges should be dropped. ‘And, if that does not work, to try to convince the court that his prosecution must be stopped permanently because for some or other reason he could not receive a fair trial.’
Why the ANC should force Zuma to resign is argued by Marianne Thamm in a Daily Maverick commentary. She writes: ‘If the ANC’s Integrity Commission had any lingering doubts, Friday’s SCA judgment should have cleared it all up.’ Thamm points out that precedents have been set. ‘Former Minister of Communications Dina Pule resigned in 2013 after an investigation by Parliament’s Ethics Committee; in 2014 the Integrity Commission asked Northern Cape ANC Chair John Block – later sentenced (in 2016) to a 15-year jail term – to resign, and in 2016 Western Cape chair Marius Fransman was asked to step away pending charges of sexual assault.’ Thamm says Friday’s reinstatement of the charges should give the Integrity Commission the impetus and momentum to again – for the third time – ask Zuma to step down.
Former ‘financial adviser’ Schabir Shaik could have a lot to say about Zuma if he turned state witness in a corruption trial against the President as he has suggested he is willing to do. A TimesLIVE report says Shaik ran almost every aspect of Zuma’s financial affairs for almost a decade – paying hospital bills‚ debts‚ rent‚ vehicles‚ bonds‚ traffic fines‚ wives‚ school fees‚ children's pocket money and ANC membership. Even a R10 car wash and vacuum – according to a forensic audit done by KPMG. Shaik‚ who was controversially released on parole after being diagnosed with a ‘terminal illness’‚ is nearing the end of his 15-year sentence for bribery and corruption involving Zuma. The financial hold Shaik had over Zuma is detailed in the KPMG forensic audit report, which formed a cornerstone of the state’s case against Zuma when he was facing charges of fraud‚ corruption‚ racketeering and money-laundering‚ for allegedly using his position in government to further the business interests of Shaik and French arms firm Thint – in exchange for money. As has been noted in previous reports, Zuma is likely to challenge the integrity of KPMG’s audit report as it was done by the same person who compiled the allegedly suspect report on the so-called rogue unit at the SARS.
