It is clear President Jacob Zuma's lawyers know the so-called spy tapes could be damaging and do not want them to get out, says the DA.
"If this is correct, it will prove our contention that the decision to drop the charges against Mr Zuma was irrational and unlawful," Democratic Alliance MP James Selfe said on Wednesday.
Tuesday was the deadline for responses to the DA's heads of argument on January 21, compelling the National Prosecuting Authority (NPA) to hand over the reduced record.
The NPA and Zuma's lawyers failed to submit heads of argument by the close of business on Tuesday.
Selfe said the DA was informed by the office of the state attorney late on Tuesday that it was unable to meet the deadline.
"This has further delayed the DA's quest to discover the truth about this case," he said.
The NPA could not be reached for comment on Wednesday.
The DA rejected the argument by Zuma's lawyer Michael Hulley that submissions made by Zuma were confidential.
Selfe said: "Our heads of argument make it clear that the tapes were given to the NPA by the National Intelligence Agency and not by Mr Zuma's legal team, and that they cannot, therefore, be privileged."
In March, the Supreme Court of Appeal gave the NPA 14 days to produce the documents which were before the then prosecutions head Mokotedi Mpshe.
He decided to drop corruption charges against Zuma in 2009, claiming the case was politically motivated.
This decision was based on recordings of intercepted phone conversations – the so-called spy tapes.
Instead of producing the transcripts in April last year, the NPA handed them to Hulley.
Selfe said the NPA should be found in contempt of court because it had failed to comply with the court order.
Spy tape history
In June 2005 then-NPA head Vusi Pikoli announced his decision to charge then-deputy president Zuma with corruption related to the arms deal scandal.
In September 2006 the Zuma case was struck from the role when the NPA stated they were not ready to proceed, given disputes about validity of raids on Zuma.
In 2008 the Constitutional Court ruled that raids on Zuma were valid. Later that year, however, Pietermaritzburg Judge Chris Nicholson held that Zuma’s corruption charges were unlawful on procedural grounds.
In January 12 2009 the Supreme Court of Appeal overturns Nicholson’s ruling.
Later that year, however, acting national director of public prosecutions Moketedi Mpshe discontinued the prosecution of Zuma, citing as his reason the secret recordings – or spy tapes.
In his legal justification he described McCarthy’s conduct as “a serious abuse of process”, but emphasised there had been a valid case against Zuma. Mpshe released excerpted transcripts of the tapes.
In 2009 the DA went to court to have Mpshe’s decision set aside, but the North Gauteng High Court dismissed the application.
In March 2012 the Supreme Court of Appeal overturned the high court ruling and ordered that the national director of public prosecutions produce the record of decision on which Mpshe based his decision to drop the case.
The prosecuting authorities refused to deliver the record on the basis that it contained the representations, which had been made on a confidential basis.
The DA then applied to receive what was termed the "reduced record" – the material on which Mpshe relied, minus the written representations from Zuma.
The North Gauteng High Court ruled that the party did not have sufficient direct interest or "standing" to bring the case and dismissed the DA's application for the record.
The DA took this ruling to the Supreme Court of Appeal. In March 2012 the appeal court ruled in the DA's favour, making an important determination on the rights of political parties to go to court in the public interest. – Additional reporting by Sapa