Former acting National Prosecuting Authority (NPA) head Mokotedi Mpshe made the decision to drop 783 corruption charges against President Jacob Zuma out of anger and outrage.
This was the contention of lawyers for the DA in the Pretoria High Court on Tuesday, who insisted there was no sound, legal basis for the charges to be dropped.
The party is making an application for the court to review Mpshe’s decision in the hope it can get the charges against Zuma reinstated.
Mpshe and former Scorpions boss Leonard McCarthy were in the spotlight on Tuesday as lawyers sparred over the process that led to corruption charges being dropped against Zuma, paving the way for him to become president in 2009.
At the centre of the legal brawl are the spy tapes that were provided to Mpshe by Zuma’s legal team, which they insist are proof that McCarthy and former NPA boss Bulelani Ngcuka were involved in a political conspiracy to prevent Zuma being elected ANC president in Polokwane in 2007.
Transcripts of the conversations show the two having numerous conversations over whether to charge Zuma before or after the ANC’s 2007 Polokwane conference, where he was set to challenge former president Thabo Mbeki for the presidency of the ANC.
The DA has claimed in its submission that even though the two had discussed the timing of when Zuma should be served with an indictment, those discussions did not contaminate the actual evidence in the case against Zuma.
Legal counsel for the DA, Sean Rosenberg, told the court that Mpshe was outraged when he discovered, through the tapes, that McCarthy and Ngcuka had been discussing the timing of when Zuma had to be served with an indictment.
As such, he had not applied any sound, legal basis for his decision.
“The decision by Mpshe was an impulsive decision, it was not a rational decision. It was reflective of his own sense of betrayal, anger and outrage at McCarthy’s conversations with Ngcuka.
“The emphasis was on Mpshe’s personal sense of outrage at what had transpired, and to him this conduct amounted to an abuse of process. That was not sufficient for him to arrive at the decision that he did,” said Rosenberg.
He added there was no suggestion that McCarthy’s actions had in any way contaminated the corruption case against Zuma.
Legal counsel for the NPA also faced a grilling from the full bench of judges over whether McCarthy and Ngcuka’s actions had any significance on the charges against Zuma.
Rosenberg was at pains to explain to the court that “timing is everything”, and that Mpshe had applied himself before making the decision, eventually describing it as the “toughest decision he had ever made”.
Hilton Epstein SC, arguing for the NPA, said the DA was in its application attempting to minimise the unlawful actions of McCarthy.
“If somebody is prosecuted they must know that they are being prosecuted without any other interference,” said Epstein.
He said McCarthy had interfered with Zuma’s prosecution because he had a political agenda to support former president Thabo Mbeki’s bid to be re-elected ANC president in Polokwane.
“From 2006, McCarthy had an agenda to prevent Zuma from taking over from Mbeki,” he told the court.
Epstein is expected to continue with his submission on Thursday, to be followed by Kemp J Kemp for Zuma.