In the president’s answering affidavit submitted to the court on Thursday, his lawyer Michael Hulley said the primary defect in the DA’s case was its reliance on the so-called spy tapes.
Hulley said acting director of public prosecutions Mkotedi Mpshe specifically stated on April 6, 2009 that he was basing his decision on representations Zuma had made and which to this day remain secret. Unlike with the wire-tapped conversations between Scorpions boss Leonard McCarthy and former national director of public prosecutions Bulelani Ngcuka, the opposition never applied to have these records released.
“The DA’s lack of challenge to Zuma’s claim of confidentiality was the result of their own election,” Hulley wrote.
“They recognised the general confidentiality of such representations and elected not to challenge that in seeking reproduction of the record.”
When he announced the decision to drop corruption, fraud and racketeering charges against Zuma, Mpshe also cited the tapes and quoted lines from conversations between McCarthy and Ngcuka. He said they could be construed as proof of political meddling that would undo the state’s case, though it seemed otherwise sound.
Democratic Alliance federal executive chairman James Selfe commented that he believed the contents of the representations by Zuma and his legal team were irrelevant.
“Whatever these representations may contain is irrelevant because for six years the NPA and Mr Zuma himself clung to the argument that the prosecution against him was a conspiracy. Now their entire affidavit is hung on these supposed confidential representations made back in 2009.”
“This is completely misleading given that Mr Mpshe, on 6 April 2009, announced that he was to decide on the case based on allegations of a conspiracy to unfairly prosecute Mr Zuma and would make a determination on that basis. To suggest that this decision was based on other reasons ex post facto is manifestly irrational.
“President Zuma, no doubt on the advice of Mr Hulley, is trying to run two defences for the price of one.”
Two weeks ago, the court received an affidavit from Willie Hofmeyr, a deputy director of national prosecutions, that said the Mbeki administration had shamelessly manipulated the National Prosecuting Authority to undermine Zuma’s political ambitions.