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The matter of the spy tapes involving President Jacob Zuma is far from over. It is in fact headed for the Supreme Court of Appeal (SCA) in Bloemfontein, thanks to the National Prosecuting Authority (NPA). Zuma’s lawyers filed his answering affidavit to the SCA at the end of August, effectively challenging the North Gauteng High Court ruling that he should face corruption charges.

The high court had dismissed an application for leave to appeal in June. Judge President Aubrey Ledwaba ruled that the appeal was not based on merit and did not have reasonable prospects of success.

The NPA, meanwhile, has indicated that it would approach the Constitutional Court separately.

In its official announcement – in appealing Ledwaba’s original April judgment that the authority’s setting aside of the case in 2009 was irrational – the NPA stated that its Constitutional Court case was based on several points:

  • That the court erred in finding that Mpshe had acted irrationally by not referring the complaint of abuse of process and the related allegations against McCarthy to court;
  • There was a transgression of the separation of powers;
  • That Mpshe did consider the merits of the case;
  • The NPA process was abused for political reasons;
  • That Mpshe, as acting head of the NPA, had the power to discontinue the prosecution;
  • And that the court failed to appreciate the true reason for McCarthy and former NPA head Bulelani Ngcuka delaying serving the indictment on Zuma.

The never-ending story

The DA had brought the case against three respondents, namely the former acting head of the NPA Mokotedi Mpshe; Leonard McCarthy, head of the Directorate of Special Operations (Scorpions), which was disbanded in 2009; and Zuma, who was not president at the time the charges were withdrawn.

Mpshe’s decision to withdraw the charges was based on an alleged political plot against Zuma by McCarthy and others, but his unilateral decision to do so was deemed irrational by the Pretoria High Court.

The NPA first brought corruption charges against Zuma in 2007, but these were dismissed in September 2008 in the Pietermaritzburg High Court. The judgment was appealed and overturned in January 2009.

The NPA was thus about to go ahead with its case against Zuma. However, on 31 March 2009,Mpshe listened for the first time to the spy tapes and was so disturbed by what he said he heard – evidence of the McCarthy plot – that he withdrew the charges against Zuma. Mpshe’s action triggered the DA’s case, launched a week later.

The 2016 judgment, setting aside Mpshe’s decision, was handed down in the collective name of the court, and was not attached to any of the three judges.