AmaBhungane co-managing partner Sam Sole made the front page of today’s Daily News in Durban – his photograph sandwiched between Jacob Zuma and prosecutor Billy Downer above the headline “Transcripts reveal Downer’s dodgy dealings. Zuma camp in bid for trial prosecutor’s recusal”.

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The report, a version of which later appeared on IOL, said the defence in the Zuma trial “was believed to be armed with damning phone transcripts between state prosecutor Billy Downer and controversial amaBhungane investigative journalist Sam Sole as their basis for a recusal application against Downer.”

In the article, adorned by a red flash “HOT OFF THE PRESS”, reporter William Phungula said that the transcripts record a 2008 conversation in which “Downer shares what seems to be highly sensitive information pertaining to the arms deal investigation and coaches Sole on what direction his story and narrative should take.”

Further on, the report quoted one of the two – “while it was unclear who between the two said this” – as saying, “Listen we must sit down, quite a lot of stuff that I can share with you, where you are… There’s quite a lot on Geargiadus that I can share with you.”

Political analyst Professor Sipho Seepe was asked for an expert’s comment, and he called upon the National Prosecuting Authority to “remove Downer as a prosecutor in the case, citing the prejudice against Zuma.

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“Seepe told the Daily News yesterday that if there was ever any prejudice against Zuma by the NPA, the transcripts were clear evidence that the NPA always had a vendetta against him.”

The transcript at the heart of the dispute has been in the public domain for six years. Sole and amaBhunhgane have used it in a successful court case in which they accused the state of illegally bugging him.

The Constitutional Court ruled in Sole and amaBhungane’s favour three months ago, declaring that unregulated bulk interception and aspects of Rica, the law that regulates interception, were unconstitutional.

The document is a strange choice for Zuma’s defence, because the conversations are largely about political obtacles being placed in the way of investigators who were pursuing German and UK strands of the arms deal, and in which former President Thabo Mbeki’s camp rather than Zuma was perceived to be vulnerable.

Even stranger, Zuma’s instructing attorney Mondli Thusini is quoted refusing to discuss the transcripts with the Daily News, saying “I can’t comment on the transcripts, because I have not seen them.”

Background to the affidavit

The Daily News reporter, Phungula, contacted Sole on Tuesday morning to ask for comment. What follows below is the email from Phungula and Sole’s full response.

Email from Willem Phungula, received 11.36 am

Morning Sole this is Willem Phungula from Independent media in KZN. We saw kind of transcript docs purportedly your discussion with Adv. Billy Downer back in 2008. According to the transcript your discussion was about arms deal case. Can you confirm that transcript are genuine and true reflection of your discussion. It looks like former president Jacob Zuma’s defence will use that in their recusal application against Downer.

Thanks

Response from Sam Sole, sent fifty minutes later

Dear Mr Phungula,

Thanks for making contact. This is nothing new and nothing more than the latest round of deflection by Team Zuma.

They appear to be the same 2008 conversations that amaBhungane used to launch a successful constitutional challenge of interception legislation.

They come from the “Spy Tapes” and were first disclosed by Mr Zuma’s former attorney Michael Hulley in 2015, in an affidavit that tried unsuccessfully to achieve a similar thing to what Mr Zuma’s current lawyers are trying – to discredit the prosecution.

The 2008 article concerned had very little to do with Zuma, but rather with how the Mbeki administration was blocking NPA co-operation with German and UK investigators to probe aspects of the fighter-jet, ship and submarine procurement.

It is notable that Advocate Downer gave mostly technical explanations of the process. To the best of our knowledge he was never found guilty of any misconduct in relation to these conversations.

We reported on these conversations in 2015 in this story here.

The relevant section of the article reads as follows:

“How spooks spied on Sam

President Jacob Zuma’s high court answer appears to confirm what we have long suspected: that the state spied on amaBhungane managing partner Sam Sole.

In his affidavit on behalf of Zuma, attorney Michael Hulley makes much of alleged National Prosecuting Authority and Scorpions leaks to journalists.

He rounds on advocate Billy Downer, who headed the Scorpions team investigating Zuma. “In this regard I also mention the interchanges between Downer and Sole,” which, he states, were referred to in some of the so-called spy tapes records already before court. Zuma, he says, “requested and obtained copies” of the transcripts.

The transcripts, attached to Hulley’s affidavit, are of eight phone conversations between Sole and Downer in 2008, all initiated by Sole.

Only one conversation touches on the Zuma prosecution, with Downer explaining the legal framework to Sole without giving inside information.

The rest are largely about hurdles the justice department placed in the way of information exchanges between the Scorpions and their counterparts in the German and British legs of the arms deal investigation.

The information Downer gave was about interference with the investigations and not the investigations themselves. Clearly, either or both of Sole’s and Downer’s phones or offices were bugged.

It appears their emails were also intercepted as one of the transcripts has this footnote: “Sam sends Billy a copy of this article before it is released for publication.”

Around this time, Sole’s rental car was stolen from the Mail & Guardian parking lot.

Notes and documents relevant to the arms deal probe were in the boot.”

I attach the story referred to in the conversation.

Best
Sam Sole
Co-managing partner
amaBhungane

Get the Mail & Guardian article here.