Pretoria, 2007
AFTER THE SCORPIONS SERVED their indictment on the newly elected ANC president on 28 December 2007, Jacob Zuma’s legal team used every trick in the book to prevent their man from facing the corruption charges. They employed the term ‘Stalingrad defence’, denoting that they would fight every inch of the way to keep him from facing trial, just as the Russians had fought street by street, house by house, in that city against the invading German forces during World War Two.
The delaying tactics began from the time of the conviction of Schabir Shaik on charges of fraud and corruption linked in part to Zuma. The drama then continued with the indictment served on Zuma in December 2007, his reprieve as a result of the Nicholson judgment, and then the overturning of that judgment by the Supreme Court of Appeal (SCA) in January 2009. At successive high points of the legal saga, boisterous crowds of Zuma supporters demonstrated in the streets in solidarity with him – foremost among them Zwelinzima Vavi and Blade Nzimande.
Then in early April 2009, a few months after the SCA’s ruling, which opened the way for Zuma to be charged, he received a remarkable helping hand, just weeks prior to the general election. The director of the National Prosecuting Authority (NPA), Mokotedi Mpshe, sensationally announced that all charges against Zuma were being dropped. The reason given was abuse of process, as revealed in intercepted phone conversations which had mysteriously come to light. These were electronic intercepts, not actual recorded tapes of a previous era, but they came to be referred to as the ‘Spy Tapes’. Only a few select excerpts from them were released in April 2009 to coincide with the reprieve for Zuma.
It was claimed that political interference had been uncovered emanating from the activities of the previous head of the Scorpions, Leonard McCarthy (who had left the country for a post at the World Bank), in association with the former head of the NPA, Bulelani Ngcuka. This made it look as though Ngcuka was interfering unduly with the process – ruling from the grave, as it were. Proof was allegedly contained in intercepted mobile phone conversations between the two, and several other high-profile individuals, from November 2007 (preceding the ANC’s Polokwane conference that December) to April 2008. The NPA under Mpshe had been handed the tapes by Zuma’s legal representative and adviser, Michael Hulley. The question of how the intercepted conversations were obtained and how they came illegally into the hands of Zuma’s legal team was overshadowed by the sensational nature of the conversations.
Initially only a portion of the intercepts were provided to the media to justify Mpshe’s dramatic decision to drop charges against Zuma. The main opposition party, the Democratic Alliance (DA), approached the courts to obtain a full set of the transcribed copies of the intercepts. Given the Stalingrad defence of Zuma’s legal team, it took the DA six years (until March 2015) to succeed. When their case was finally heard by the Supreme Court of Appeal, it ruled in their favour – although Zuma continued to use delaying tactics to avoid his day in court.
It emerged that the Spy Tapes consisted of sixty-three pages of thirty-five illegally intercepted phone conversations between November 2007 and April 2008, running into about ten hours of conversation. Approximately half of these were between Leonard McCarthy and Bulelani Ngcuka. The rest were between McCarthy and such individuals as the minister of justice, Brigitte Mabandla (there were just three calls but they were fairly long conversations about legal matters), McCarthy’s subordinate and close friend, Faiek Davids (Willie Hofmeyr’s deputy in the Special Investigating Unit – SIU of the NPA), the businessman Mzi Khumalo (who was socially close to Ngcuka and his wife, Phumzile), and an initially unidentified man called ‘Luciano’, later revealed to be André Pienaar (a publicity-shy South African running a private intelligence company based in London).
Most of these were rambling conversations, interspersed with small talk and occasional expletives, but all essentially focused on the Scorpions’ pending charges against Zuma and the question of their timing – when to act. This topic was the subject of McCarthy’s conversations with Ngcuka and Khumalo, and it is clear they were earnestly hoping that Mbeki would be the victor at the Polokwane conference. Calls between McCarthy and ‘Luciano’ were brief. And so were five calls between McCarthy and me (none more than half a minute), which were not included in the thirty-five-page transcripts.1 Since I had noted media speculation concerning a discussion between McCarthy and Ngcuka (on 7 November 2007) in the 2009 leaked intercepts, I publicly identified myself then as having interacted with McCarthy on the issue of the timing of the charges.
In meeting McCarthy in 2005 in connection with my support for retaining the Scorpions as an independent investigating unit, then the subject of the inquiry by the Khampepe Commission, and later when he approached me to seek my political counsel in the run-up to Polokwane, I had made one condition: I never discussed business on the phone: ‘Not since I became involved in politics in 1960. Mr McCarthy, the first thing I was instructed then was don’t trust the telephone. And I have remained true to that ever since. Only fools believe that they are not being overheard.’ While he abided by my proviso in talking to me, he threw all caution to the wind in calls between himself and Ngcuka.
When I first read the leaked Spy Tape transcripts in 2009, and later the full sixty-three pages in 2015, I could scarcely believe that two experienced legal people like McCarthy and Ngcuka could have been so cavalier in their telephone discussions, although the exchanges need to be seen as taking place between a subordinate and his former chief whose advice he sought.
The McCarthy–Ngcuka telephone intercepts, unlike the 2005 Masetlha emails, certainly took place, but views on what they amounted to could differ. The NPA’s top team of Mpshe and Willie Hofmeyr – who appears to have been tasked with evaluating the intercepts – interpreted them as clear evidence of conspiracy against Zuma on behalf of, and allegedly acting on the orders of, Mbeki. For their part, the courts would have their say on the matter for when they threw out the NPA’s and Zuma’s attempts to prevent the DA from getting hold of the tapes.
There undoubtedly is conspiracy in the world of politics, in business, in all manner of human affairs. My understanding of a conspiracy is that it involves an act of plotting between two or more persons to do something unlawful or harmful. In our benighted country the term has become a fit-for-purpose explanation twisted to conveniently suit any particular agenda or perverse imagination. It has become a favourite device of Jacob Zuma’s. In May 2017, for example, the ANC’s Integrity Commission suggested Zuma step down for the good of the movement, but received this reply from him, which it noted: ‘The essence of the president’s refusal to resign is his belief that there exists a conspiracy by Western governments to oust him as president of the ANC and of the country. Their objective is to replace him in order to capture the ANC.’2
The intercepts commenced with a banal conversation between the businessman Mzi Khumalo and McCarthy on 4 November 2007 and ended with a discussion between Bulelani Ngcuka and McCarthy on 7 April 2008. The first intercept concerned a long-winded arrangement about a dinner meeting with Mzi Khumalo, a member of the circle of Mbeki supporters. In the last intercept McCarthy sought a meeting with Mbeki. I happened to know that this had to do with McCarthy’s plan to take up a top security post at the World Bank, for which he sought Mbeki’s approval. Several intercepts involved four to eight pages of conversation, a duration of 30–45 minutes each. The average conversations, including chit-chat, amounted to 10–15 minutes.
What appeared to be at issue were discussions about the presidential election, both pre- and post-Polokwane: they revealed how hopeful McCarthy, Ngcuka and Mzi Khumalo were about Mbeki winning. There was nothing illegal in this. Ngcuka and Khumalo were ordinary citizens, but McCarthy, as an employee of the state, certainly was placing his reputation at risk for the perceptions that could be created. There were no conversations with others involving discussion about political factors other than the timing of the charges against Zuma. By way of insight into the intercepts I present a few samples, which I have greatly abbreviated for the convenience of the reader. The Sunday Times has posted the entire transcripts on its online website.3
Mzi Khumalo (MK) to Leonard McCarthy (LM), 4 November 2007:
MK: Howzit, I have just arrived … You said you would be going to Cape Town today …
LM: I must just see Rev. Chikane first, then I will go …
MK: We can meet on Wednesday …
LM: We can have dinner or early drinks, pick a place, just let me know …
Bulelani Ngcuka (BN) to Leonard McCarthy (LM), 7 November 2007:
[Initially the discussion was about LM’s request that BN assist in getting a job for his personal assistant – since LM was planning to take a job abroad with the World Bank – and references were made to a current Supreme Court of Appeal hearing into a High Court order that set aside search warrants in the Zuma case.]
LM: And then … I met with the guy I mentioned, and you know his line is almost like that of Sam … he says he will speak to the man … he feels very strongly that I should not see the guy directly …4 [The ‘guy’ was in fact me and I had previously volunteered that information to the media.]
Bulelani Ngcuka (BN) to Leonard McCarthy (LM), 26 November 2007:
[BN informing LM of the results of the ANC provincial nomination conferences]
BN: … I have just been shocked, shocked, shocked …
LM: Hm.
BN: … I don’t understand it, you know, I just don’t understand it.
LM: Ja.
BN: I can’t find that there are only nine people in the whole province of Natal [who voted for Mbeki] … Twenty-six in Mpumalanga, it does not make sense …
LM: Gauteng?
BN: Well, the Gauteng is fine … Northern Cape we would have won, but those guys cheated …
LM: Hm.
Bulelani Ngcuka (BN) to Leonard McCarthy (LM), 6 December 2007:
[BN called to congratulate LM about the prosecution of the gangster Glenn Agliotti before turning to the election of ANC delegates.]
BN: You know we were very complacent, Leonard.
LM: Hm.
BN: We did not understand the inroads the fool [Zuma] has made. He has just about bought everybody.
LM: With money from whom?
BN: Hey man, from everywhere, boet …
LM: Hm.
Leonard McCarthy (LM) to Bulelani Ngcuka (BN), 12 December 2007:
[A discussion of the NPA’s filing of court papers concerning Zuma’s appeal to the Constitutional Court about the legality of the search warrant used against him.]
BN: … It can be a devastating one for them and it will cause people to wake up [if the papers are filed] … without you making any arrests … people will wake up and say, Look, let us think what are we doing …
LM: Ja, I think, you know, by Friday, by Friday people are packing their bags [for Polokwane], they won’t even read the fucking newspapers …
BN: That is the thing … that is why it would have been good if it could come out today [i.e. Wednesday].
LM: Today it is difficult … we finalise this tomorrow morning, and file by lunchtime and give it to the media …
Brigitte Mabandla (BM) to Leonard McCarthy (LM), 14 December 2007:
BM: Oo, there is so much panic … that you are about to arrest the old man …?
LM: The old man as in JS or JZ [Jackie Selebi or Jacob Zuma]?
BM: Zuma.
LM: No, no, all that is happening is … we have to file today our opposition at the Constitutional Court to his application for a review of the search warrants …
[BM expressed unhappiness about rumours of an imminent arrest or any action that might even fan such fears.]
LM: Well, I was completely unaware of that … minister … I won’t send affidavit then. I will wait to hear from you when you are back [in Pretoria] next week …
BM: Yes, but I think dispel all these rumours, please.
LM: We will do that …
Leonard McCarthy (LM) to Faiek Davids (FD), 16 December 2007:
[FD, Willie Hofmeyr’s deputy in the NPA, recounts a chat with him at an airport lounge and his disgust with Hofmeyr for gossiping with another person about Mbeki’s alleged protection of Jackie Selebi.]
FD: Willie sê to this other person: Wat is verkeerd met die president? Hoekom staan hy in onse pad as ons vir Selebi will prosecute?
[FD goes on to recount to LM how he remonstrated with Hofmeyr.]
FD: Ek sê, Willie, waar kan jy soos ’n poes wees om die man [the other man] daai te vra? Hy sê, Ja, hy het a mistake gemaak.
LM: Hy praat met die verkeerde mense en hy praat uit sy beurt uit.
FD: Kyk, ek en hy het ’n weddenskap … ek het gesê Thabo gaan wen. Hy was so confident, hy gee vir die ander kant … odds van 20 to 1 … maar daai is nou tussen kollegas in lighter way … En hy praat al klaar van hoe Zuma dinge bymekaar sit. En hoe Zuma dinge gaan doen.
Bulelani Ngcuka (BN) to Leonard McCarthy (LM), 16 December 2007:
[The two discuss the start of the ANC’s Polokwane conference.]
BN: The conference is very bad, hey, it is extremely divisive. The people [Zuma] have bused thugs and hooligans.
LM: I saw this morning [on television at home] and switched off.
Mzi Khumalo (MK) to Leonard McCarthy (LM), 18 December 2007:
[The two discuss Zuma’s election victory at Polokwane.]
MK: It is a bad day for the whole country, but we should all just … sit and reflect on what next?
LM: I am shocked …
MK: … the level of hatred against Bulelani and the whole newer establishment [Mbeki and company] …
MK: I went and told Phumzile [Bulelani Ngcuka’s wife and the country’s deputy president], I said, You know, my sister, I love you so much … but this Thabo camp has a big liability. It is you and Terror Lekota. With you two we are going to lose … I told the president, you know, having Phumzile in the top list, people believed it was because Thabo Mbeki wanted her to be the next president.
LM: Yeah.
MK: And they just said we will show him.
LM: Yeah.
MK: It’s never going to happen …
LM: What happens next?
MK: … first Kgalema [Motlanthe], who is a guy really they claim is not Zuma … has always accepted that Zuma is going to be charged and convicted … so he has positioned this thing and used Zuma as a Trojan horse … so then Kgalema will step onto the podium and become the next president … the question is does Kgalema try and stay a middle line or … continue on this Zuma ticket … surrounding himself with thugs or … be a reasonable person … and stay in the middle line … I think Kgalema will dump Zuma but remain with those guys who put him in power … He may even say that Zuma would be tried, convicted and he will then pardon him …
LM: Are you serious?
MK: Everyone expects that Zuma will be charged …
[They discuss plans for the festive season.]
LM: Ja no, enjoy it as you say. Let’s be merry and festive and regroup another day. Let’s wipe the blood off our faces. Hey, I feel bad about it. My wife says to me you look like you lost your mother …
Bulelani Ngcuka (BN) to Leonard McCarthy (LM), 19 December 2007:
[BN declares that he is not afraid of threats or action against him by the new grouping.]
BN: … [because they believe] there was a conspiracy hatched by Mbeki and he used me to implement that for which he compensated me by giving … my wife Zuma’s job. They needed that, and the masses, the poor gullible masses, believed that … so that’s where we are … it is important that you sort out where you are going immediately. [about taking a job at the World Bank]
LM: Ja.
BN: And I think that the sooner you get out of that place [his current job] the better for you.
LM: Um.
BN: Let them sort out their mess, this is not your responsibility … there is nobody out there who is going to be out there covering your back …
LM: Yeah, OK …
Leonard McCarthy (LM) to Bulelani Ngcuka (BN), 19 December 2007:
LM: We want to move on Friday, man [intending to serve a summons on Zuma].
BN: OK.
LM: I don’t know whether that other call you referred to will ever come. I think these guys feel humiliated, and the longer we delay, the worse it becomes, we make it impossible for ourselves to act, if the guy wants us to meet and um … just do it.
BN: Hm, ja.
Brigitte Mabandla (BM) to Leonard McCarthy (LM), 19 December 2007
[BM discusses some business issues with LM and then hands the phone to President Mbeki, who had just lost the Polokwane election.]
Mbeki: Advocate, how are you?
LM: I am well, I am well, thank you.
Mbeki: Do you know who is speaking?
LM: It sounds like the president?
Mbeki: Yes.
LM: How are you, president?
Mbeki: OK, thanks … you have to choose, Leonard, whether you say president or former president.
LM: (laughs) You will always be my president …
Mbeki: The minister told me some time back that you had asked to see me.
[They make arrangements to meet.]
McCarthy had wished to inform Mbeki that he would be departing to take up a post at the World Bank. I had advised him that he needed to formally take his leave of the president. The fact that McCarthy declared Mbeki would always be his president was considered as sinister, by some, although it was quite an innocent declaration. In fact, Mbeki was still the president of South Africa. It is also possible, judging by the previous discussion with Ngcuka, that McCarthy wanted to inform Mbeki formally that the Scorpions were proceeding to charge Zuma.