Dear Gill Moodie,

Re – the N.D.P.P. and Jacob Zuma

I am sorry this is probably now too late for you though sometimes controversies of this nature ‘run and run’. Shortly after your last e-mail my colleagues in Hong Kong sent me some downloaded material. One of them, a former lawyer in South Africa, had sent me a copy of Karyn Maughan’s article in the Natal Mercury. Although I do not have a copy of my judgment I can recall enough about it to make the following comments.

1) My judgement had been overruled by the Hong Kong Court of Final Appeal. In the light of this Mpshe should not only have given proper attribution to the passages in my judgement upon which he obviously relied, but should have explained why he relied upon them in preference to the H.K.C.F.A’s decision. There was certainly room for him to do so.

2) His own statement is so limited and sketchy that I find it impossible to identify why he was relying on my judgement. In the Hong Kong case the behaviour of the prosecution which I criticised was its failure to disclose material evidence in relation to an expert witness upon whom it relied as pivotal to its case. The first“whiff” of such evidence did not emerge until the jury were considering their verdicts and I had to stop the trial at that stage – a very rare event. The C.F.A. did not disagree with that decision; in effect they approved it.

3) What Mpshe seems to have taken as the justification for his decision was not a material aspect of the trial procedure but a decision made by some branch of the investigative process as to when and where Jacob Zuma should be charged on the basis of political considerations. That is an entirely different scenario. Many might argue that motivation in relation to timing of a charge is very different from manipulation of the evidence available.

4) It is very strongly arguable that he should have let the trial process begin before a judge, leaving the aspect which seems to have dominated his proper role as the prosecutor (the old adage being a ‘prosecutors’ job is to prosecute) to be determined by the judge with the N.D.P.P. being entirely candid (as he should be) as to the conduct of the investigative and prosecuting agencies. It is easy from my position in the U.K. (or Hong Kong) to be critical of Mpshe’s statement but being as objective as I can, he really did not get to grips with the situation and seems to have made selective use of my judgement to try and put some beef into a statement which is rather short on substance. I hope this is helpful and seems reasonable. I have been away in France and so was not aware of your e-mail of 29th April until today.

Regards Conrad Seagroatt

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