President Jacob Zuma.
Transcripts of telephone conversations acquired by the National Prosecuting Authority (NPA) in connection with the so-called Zuma spy tapes saga are not confidential and should be released, the North Gauteng High Court heard on Wednesday.
The Democratic Alliance (DA) brought its court application to a full bench of the court in an attempt to force the National Prosecuting Authority (NPA) to comply with a court order that states that it must hand over the reduced court record that eventually led to the dropping of fraud and corruption charges against President Jacob Zuma.
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Sean Rosenberg, SC, for the DA, said it would be inappropriate to withhold the records on the basis of a privilege of confidentiality.
"The contention on this matter is that the confidentiality cannot attach to documents which are the subject of a decision to discontinue with the prosecution [of Zuma].
"The privilege doesn't arise. The third respondent [Zuma] cannot claim in any court any privilege to the transcripts of the recorded conversation," he said.
The NPA acquired the transcripts from the National Intelligence Agency.
"It is those transcripts that are the subject of our application. Those transcripts are not privileged for confidentiality in themselves, the first respondent [the NPA] appears to recognise that."
He told the court earlier that the NPA was in contempt of court for not complying with a Supreme Court of Appeal order to release the documents. Rosenberg said the DA sought the court's intervention for the release of the documents.
"There are two elements to this case. The first is an application to compel the production of the record [the documents and tapes].
"The second is to seek relief with regards to a contempt of the court. Both applications are strong," he told the court.
Zuma did not explain confidentiality
Rosenburg argued that Zuma had not submitted an affidavit stating why transcripts of the tapes were confidential.
"The question is … does the production of the transcripts serve in any way to undermine the confidentiality of the representations [for Zuma during his case]?" asked Rosenberg.
He said it was claimed the representations were confidential.
"No case has been put up as to how the transcripts in any way breached the confidentiality of the representations."
Judge Rami Mathopo asked how it would be possible to separate the transcripts and other documents, including memoranda describing what the tapes contained, from the representations.
The DA wants access to the so-called Zuma spy tapes, recordings of intercepted phone conversations, which the party believes will shed light on the dropped fraud and corruption charges against Zuma.
The recordings formed the basis for a decision in 2009 by then acting NPA head Mokotedi Mpshe to drop the charges.
Spy tape history
In June 2005, then-NPA head Vusi Pikoli announced his decision to charge Zuma, who was deputy president at the time, 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 overturned Nicholson’s ruling.
Later that year, however, acting national director of public prosecutions Mpshe discontinued the prosecution of Zuma, citing as his reason the secret recordings – or spy tapes.
Thee spy tapes are recordings of intercepted phone conversations between former NPA head Bulelani Ngcuka and then boss of the now extinguished Scorpions, Leonard McCarthy.
'A serious abuse of process'
In his legal justification Mpshe 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 a 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. – Sapa, additional reporting by Sarah Evans