Daily Maverick 12 February 2019
After giving blistering testimony about Nomgcobo Jiba and Lawrence Mrwebi going after corruption-busters in the NPA, Willie Hofmeyr had to address his own actions at the time of the Spy Tapes debacle, where the Supreme Court of Appeal found that his advice not to prosecute then-president Jacob Zuma was based on conjecture rather than actual evidence.
“I accept that I made a mistake by attaching so much value to the integrity of the NPA and not sufficient weight to the evidence on the criminal case. I will live with that regret for a very long time,” said Willie Hofmeyr, Deputy National Director of Public Prosecutions (DNDPP).
This was in regard to his decision to advise then acting National Director of Public Prosecutions Mokotedi Mpshe to drop the 783 charges of corruption against former president Jacob Zuma just before the ANC Polokwane conference — where Zuma was elected president of the ANC and later became president of the country.
According to Norman Arendse, counsel for Jiba, there is no other rational reason for the decision that Hofmeyr was a part of — to hold off on the prosecution of Zuma — other than political motivation after Hofmeyr had heard the contents of the “Spy Tapes”.
According to Hofmeyr, the Spy Tapes implicated former National Director of Public Prosecutions Bulelani Ngcuka and former Scorpions boss Leonard McCarthy in discussing the timing for prosecuting Zuma in order to boost the chances of Thabo Mbeki winning re-election.
“What concerned us was the political motivations. The debate between McCarthy, Ngcuka and others on when to execute the charges to have the maximum benefit to Mbeki,” said Hofmeyr.
On acquiring the Spy Tapes, Zuma’s lawyers made representations to the NPA that there was a conspiracy by prosecutors to “get” him politically.
The prosecution team, led by advocate Billy Downer, was convinced that the evidence on which the charges were based was untainted and that the charges against Zuma should stand.
However, Hofmeyr and Mpshe held a different view. They said the charges should be dropped immediately because the case would cast aspersions on the integrity of the NPA.
When Downer’s team maintained its view that there were strong prospects of a successful prosecution, Hofmeyr and Mpshe were unmoved.
Hofmeyr conceded that after the Jackie Selebi case, where there had been political interference in the NPA, he overreacted. He heard the discussions on the tape and did not judge the case on the evidence before him, but rather on the conspiracy he believed was brewing to support Mbeki by using the NPA.
Arendse asked Hofmeyr if there had been a justifiable criminal charge against Zuma when he made the decision not to prosecute.
Hofmeyr replied that the Supreme Court of Appeal’s decision to prosecute had been correct and confessed that, initially, he gave undue importance to what was being said on the recording. It was clear that there had been attempts by Ngcuka and McCarthy to make sure that Mbeki was elected.
“I accept that I was incorrect in my feelings at that time and I did overreact,” said Hofmeyr.
“I put it to you that the decision not to prosecute the former president amounted to political interference in the decision-making process of the National Prosecuting Authority,” said Arendse.
“I accept that even senior prosecutors get it badly wrong, but I think after the Supreme Court of Appeal judgment was delivered in the case there were no more grounds to getting it wrong in the future,” replied Hofmeyr.
Arendse then went on the offensive, comparing Hofmeyr’s actions with that of his client, Jiba, whose fitness to hold office is in question. He said if Hofmeyr conceded that sometimes prosecutors get it wrong, surely that shouldn’t mean that they are not fit to hold office?
Hofmeyr said that to make a good judgment on that question there needed to be consideration of the merits on a case-by-case basis. He said he did not weigh up political issues when deciding not to prosecute. What concerned him was the new culture of interference in the NPA which became more apparent with Jiba and Mrwebi later on.