'If You Shoot at the King, Don't Miss'
Mail and Guardian
Director of Public Prosecutions Bulelani Ngcuka is reaping the whirlwind of an equivocal investigation into Jacob Zuma as the deputy president now moves to exploit the "deference" granted to his status during the conduct of the investigation.
Ngcuka's head of Special Operations (the Scorpions) advocate Leonard McCarthy told his investigators — "if you shoot at the king, make sure you don't miss" — but it seems as if he and Ngcuka are guilty of not following their own advice.
The Mail and Guardian has been told that during the investigation they overruled investigators' requests to raid Zuma's various residences, to subpoena documents from him, particularly his diaries, and to subpoena him for questioning under oath.
The decision not to tackle the deputy president head-on was justified on the grounds of respect for his high office, but at least one investigator has claimed that key strategic decisions regarding the investigation were taken without due consultation with the operational team.
Now Zuma is wounded but not dead, and the Scorpions are facing a dirty war — including a smear campaign against Ngcuka — without all the evidentiary weapons they might have had.
Zuma mocks this caution in an affidavit submitted last week in the Pretoria High Court in a bid to neutralise a key piece of evidence against him.
"Such deference was clearly misplaced," he states. "The respondents [the Scorpions] are under a constitutional duty to act without fear, favour or prejudice."
In the court application Zuma is demanding access to the handwritten original of a fax that purports to confirm that he asked French defence company Thales for a R500 000 bribe. It is clear that Zuma suspects the Scorpions do not have the original, or that it was written on behalf of, rather than by the Thales executive, Alain Thetard, in whose name it was sent. In either case the evidentiary value of the fax would be compromised.
However, even more serious for the investigation has been Ngcuka's apparent attempt to marry incompatible legal and political objectives in the Zuma case, presumably in a bid to find a politically "clean" solution that would force Zuma to "go quietly" and avoid the damaging battle that has now burst into the open.
This can be the only explanation for two extraordinary overtures from Ngcuka that Zuma alleges in his affidavit.
Zuma states: "Senior counsel, who had acted for me in certain unrelated matters, interviewed the first respondent [Ngcuka] on behalf of other clients in the first part of 2003.
"Senior counsel reported to me that [Ngcuka] had asked him to convey to me that the investigations being conducted could be made to go away against all concerned, subject to the following: I should answer a set of innocuous questions compiled by [Ngcuka]; my answers to [Ngcuka's] questions would remain confidential and not be disclosed to other members of the respondents [the National Prosecuting Authority and the Scorpions]."
The senior counsel referred to is understood to be advocate Kessie Naidu.
Ngcuka will no doubt contest Zuma's interpretation of these events when Zuma's application is heard on September 15, but it appears that, much earlier, Zuma had already wanted to use these "informal" overtures to challenge Ngcuka's fitness to make the decision about whether or not to prosecute him and his financial adviser, Schabir Shaik.
Zuma's affidavit confirms that his attorneys addressed a letter in this regard to the justice minister on August 21. Zuma's attorney, Russell MacDonald, confirmed to the M&G that legal steps had also been considered.
An application to interdict Ngcuka from making or announcing his decision on prosecuting Zuma, based on alleged bias or misdirection, would have cast the investigation into disarray. It is understood that such a strategy had been discussed with very senior Zuma supporters in the ANC. ANC secretary general Kgalema Motlanthe this week denied any knowledge of such a discussion.
Yet it appears that Ngcuka got wind of the possibility of an interdict and as a result was forced to bring forward his announcement on Zuma and Shaik at a hastily convened press conference on August 23.
Ngcuka then made another strategic mistake by lashing out at the French government for not delivering Thetard and other Thales executives as witnesses — presumably in a bid to justify his decision not to prosecute Zuma.
The M&G understands, however, that negotiations with the French authorities were then at a delicate stage. French law does not allow the extradition of its citizens, but it is understood the French were still considering a South African proposal that would have offered French witnesses dual indemnity — in South Africa and France — in return for their testimony.
Ngcuka's outburst could have scuttled any chance of agreement, but this week the French authorities indicated they would take steps to assist the South African prosecution.
Before August 23, Ngcuka was also under intense pressure to announce his decision before the allegations that he was suspected of being an apartheid spy became public.
He was aware that the media had been sitting on the story for a month after it had been leaked to confidants of the Zuma camp. But he had also become aware that e.tv had, on August 18, conducted a three-hour interview with Mac Maharaj, who confirmed the allegations on camera.
This sequence of events gives the lie to claims from sources within the Zuma/Shaik camp that the spy smear was only brought into the open in response to Ngcuka's August 21 announcement, when he stated there was a prima facie case against Zuma, but he would not be prosecuted — thereby supposedly depriving Zuma of the opportunity to challenge the allegation in court.
In fact, the M&G is aware that persons close to Shaik attempted to peddle the spy story and other allegations against Ngcuka as early as last year.
Ngcuka — or perhaps his advisers — appear also to have underestimated the political fallout from his decision to tar Zuma but not to prosecute him.
Zuma's close advisers believe that, in pursuing the investigation against Zuma, Ngcuka was acting to destroy him as a potential successor to President Thabo Mbeki.
Ngcuka's decision not to prosecute, despite having a "prima facie" case against Zuma, has fed into attempts to portray the investigation as politically motivated. Even Motlanthe was driven to publicly voicing suspicions about dark political forces being behind the Zuma investigation.
This week the Congress of South African Trade Unions raised the same concerns, stating that the allegations against Zuma "fit into the pattern of being raised in the run up to important political events and as a result ... raise the spectre of political manipulation".
The decision not to charge Zuma has freed his supporters from the need to hold back out of respect for the legal process. As a result the Zuma camp has been able to convincingly portray the investigation as an attack on democracy in the ANC and to mobilise considerable support for the deputy president.
Ngcuka, who is now isolated, appears to have anticipated that he might end up with egg on his face. Earlier this year, when rumours emerged that he was to leave the National Prosecuting Authority, he dismissed the claim as misinformation spread by "comrade criminals".
That is likely, but two Scorpions sources have confirmed that Ngcuka indeed wished to leave, but when confronted by Mbeki, committed himself to finish his 10-year term.Now — with the battle in the ANC over Zuma breaking into the open — such a tenure looks increasingly unlikely.
With acknowledgements to Sam Sole and the Mail & Guardian.