In a fascinating and strangely under-reported address delivered at an international law conference a year later, Advocate Billy Downer, who headed the prosecutions of Shaik and Zuma, hit out at three consecutive heads of the NPA for the fact that Zuma’s case never came to court. Downer, a Deputy Director of Public Prosecutions in the Western Cape, was part of the original Arms Deal team assembled by Ngcuka. He was specifically responsible for the Thales/Zuma leg of the investigation and worked closely with Scorpions investigators as part of the unit’s prosecutor-led investigation style. When Advocate Gerda Ferreira resigned from the Scorpions, Downer took charge of the entire Arms Deal probe. In a speech to the Middle Temple conference in October 2010, Downer revealed that he and his team had been overruled three times, by Ngcuka, Pikoli and Mpshe. * * * In 2003, Ngcuka announced at a public press conference that, although there was a prima facie case against Zuma, he would not be prosecuted. The case was not winnable, Ngcuka controversially said. But he made this decision against the advice of Downer and Ferreira. ‘Mr Ngcuka announced publicly that the investigating and prosecuting team, of which I was a part, had recommended that Mr Zuma should be prosecuted. The national director of public prosecutions [Ngcuka] therefore took an original decision not to prosecute, against the advice of the two line prosecutors and, indeed, the other members of the investigating team,’ Downer said. According to him, Ngcuka’s decision not to prosecute Zuma was constitutionally significant for three reasons: 1. It was a decision taken by the national head of the NPA, not a Director of Public Prosecutions responsible for a specific province. Downer said: ‘It is debatable whether the framers of the Constitution ever intended the NDPP to have any original powers of decision at all.’ 2. Ngcuka disagreed with Downer and Ferreira’s decision that Zuma should be prosecuted with Shaik: ‘With hindsight, Mr Ngcuka might wish that he had followed our advice,’ he said. Downer juxtaposed Ngcuka’s decision with the independence afforded by the Italian prosecution authority to Milan regional prosecutor Fabio de Pasquale, who had ‘waged a valiant campaign over years against Prime Minister of Italy Mr Silvio Berlusconi, with some remarkable successes. Mr de Pasquale has been able to implement his own decisions in the less hierarchical Italian system.’ 3. Ngcuka’s motives were criticised by the political and legal community for years. Zuma accused Ngcuka of taking a deliberate decision to smear him by announcing publicly there was a case against him, but not having the guts to take him to court. This, Downer said, ‘fuelled the debate some years later about the succeeding NDPPs’ motives for deciding to prosecute Mr Zuma after the Shaik trial. Mr Ngcuka and the NPA (including me), in all the court papers where this issue has been raised, have vigorously and in depth denied any improper motive. Nevertheless, the negative public spin accorded to the Ngcuka decision not to prosecute, which was said to have poisoned the later decisions to prosecute Mr Zuma, tended to add some public force to the calls to drop the Zuma charges entirely, and even to abolish the Scorpions, which agency Mr Ngcuka famously founded and headed.’ A number of sources inside and outside the ANC told me over the years that Ngcuka’s decision was abused by Zuma to garner sympathy for his cause – that he was the victim of a political conspiracy. Ngcuka, they said, honestly thought he was protecting the ANC and Zuma when he decided not to prosecute him but rather to go for Shaik. But Zuma needed a villain for his conspiracy to succeed, I was told, and Ngcuka was the perfect candidate: the man who told the world there was a prima facie case against him and briefed newspaper editors about the allegations against Zuma, although he might have saved him from imprisonment. * * * According to Downer, the prosecution of Zuma was a ‘legal inevitability’ after Judge Squires’ judgment in the Shaik matter. ‘One could not possibly, in the face of that judgment, do nothing. It was clear as daylight that a prosecution had to follow. It does not mean that Mr Zuma is guilty, but the judgment just made it clear that there was such a strong case against him, it would be quite improper not to prosecute.’ The Scorpions proceeded to search the properties of Zuma, his lawyer and his associates, and seized more evidence. In his address, Downer reveals that Pikoli, then the National Director of Public Prosecutions (NDPP), acted against Downer’s advice that the legal challenges to the raids should be dealt with first before Zuma’s prosecution started. A number of individuals raided by the Scorpions, including Zuma himself, his lawyers Michael Hulley and Julekha Mahomed and businessman Jurgen Kögl, brought legal challenges against the raids in court. This meant that the state couldn’t use the documents seized in the raids in its case against Zuma until the courts had declared the raids lawful. Downer and his team argued that Zuma should not be recharged before these legal challenges had been dealt with, but was overruled by Pikoli. This meant that the state had to argue for a postponement of the trial when it came to the Pietermaritzburg High Court on 20 September 2006. Judge Msimang lashed the state for not being prepared to proceed and threw out the case. ‘Yet again, the NDPP chose not to follow our advice, this time to delay Mr Zuma’s prosecution until we had gathered all the new evidence that we had set about obtaining,’ said Downer. * * * After the legal challenges to the raids were finally dealt with by the Supreme Court of Appeal (SCA) – in the state’s favour – Downer and his team finalised the draft indictment against Zuma. The SCA delivered its judgment on 8 November 2007. Two months earlier, Mbeki had suspended Pikoli for an alleged ‘breakdown of trust’ between him and then Justice minister Brigitte Mabandla. In early December 2007, Downer and his team were ready to move against Zuma. They recommended to Advocate Mokotedi Mpshe, a deputy NDPP who was acting as head of the NPA, that they were ready to prosecute Zuma. But this time politics came into play. It was a few days before the ANC’s Polokwane conference was due to start, and Mpshe and his colleagues decided it was a bigger risk to charge Zuma before than after the Polokwane conference. Said Downer: ‘Our plea was, as usual, to leave politics out of it and make the correct prosecution decision. So, once again, the decision to delay the announcement of the decision until after the Polokwane conference was one taken against the advice of the line prosecutors.’ The timing of Zuma’s charges became very significant a few months later when Mpshe released transcripts of conversations between Ngcuka and former Scorpions boss Leonard McCarthy. Downer ended his address by posing four questions, which he said remained: 1. Is Zuma guilty? 2. Did the intelligence agencies act irregularly when they released confidential recordings to Zuma? 3. Did someone in Zuma’s team illegally receive the recordings from the intelligence agencies? 4. What are the prospects of prosecuting someone in high office in future? These are valid questions, which cannot stay unanswered forever. The evidence I have gathered over the years may shed light on some of Downer’s questions. And more evidence will emerge in future, especially as Zuma loses popular support. As the Maasai saying goes: truth is like fire – it cannot be hidden under dry leaves
Sent via my BlackBerry from Vodacom - let your email find you! -- You are subscribed. This footer can help you. Please POST your comments to [email protected] or reply to this message. You can visit the group WEB SITE at http://groups.google.com/group/yclsa-eom-forum for different delivery options, pages, files and membership. To UNSUBSCRIBE, please email [email protected] . You don't have to put anything in the "Subject:" field. You don't have to put anything in the message part. All you have to do is to send an e-mail to this address (repeat): [email protected] .
