Why would the tapes save Zuma?

Paragraph 37 of the Supreme Court of Appeals judgement handed down by Judge Harms in the matter of the NDPP versus Jacob Zuma — an appeal against the decision by Judge Nicholson in Pietermaritzburg which occasioned ANC president Jacob Zuma’s charges being withdrawn — sets out the following:

“[37] The court dealt at length with the non-contentious principle that the NPA must not be led by political considerations and that ministerial responsibility over the NPA does not imply a right to interfere with a decision to prosecute (para 88 et seq). This, however, does need some contextualisation. A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal. The same applies to prosecutions.” (Judge Harms)

In other words regardless of the motives behind the case — political conspiracy included — if a case exists then the motive for bringing it becomes irrelevant. Yet everywhere I look the headlines are reading tapes will save Zuma. You’ve got me beat please explain why. A useful link for those interested in the tapes and their value is, as always, Professor Pierre de Vos.

As set out in this previous article there are basically three grounds upon which the NPA could consider dropping the charges:

1. After Zuma’s representations they consider the case unwinnable ; or
2. It is not in the public interest to proceed ; or
3. Zuma could not be given a fair trial as guaranteed in terms of the Constitution.

The tapes themselves are inadmissible in respect of the trial itself but may be handed in with the representation. HOWEVER, as we have seen above this will not assist Zuma in respect of his case but rather implicate others who should be charged with a whole smorgasbord of criminal acts if the information leaking out is correct. Moreover the obtaining of the tapes and handing over to individuals should be — I don’t say will be — of interest to the authorities. As should the failure to report the criminal acts, surrounding the obtaining of the tapes or conduct described therein, for what appears to be a considerable length of time.

The question is: Why sit on the tapes?

I can only come up with one answer failing full disclosure by the Zuma team.

The basis for dropping the charges is clear what is less so is the basis for tapping the phones of certain individuals. We need to know exactly what was done, to whom and why there was authority for doing so. Needless to say recording parties at this level comes under the heading of national security and in the event that they were unauthorised the most stringent measures must be taken to avoid a repeat thereof.

Accordingly let’s seek clarity on the NPA dropping the charges in terms of recognised grounds, or refusal thereof, as opposed to a full disclosure on the phone tapes, which needs to be thoroughly investigated.