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Spy tape release may not end with Zuma in the dock

Phillip De Wet

Are there any remaining legal avenues left for President Jacob Zuma to prevent the release of the so-called spy tapes?

The release of the spy tapes may not end with President Jacob Zuma in the dock. (M&G, David Harrison)

The Supreme Court of Appeal has dismissed President Jacob Zuma’s application to prevent the release of the spy tapes and relevant related documents to the Democratic Alliance, in a judgment handed down in Bloemfontein on Thursday.

Most legal experts believe Zuma has reached the end of his legal battle to prevent the release of the tapes, which were cited as a reason to drop fraud and corruption charges against Zuma shortly before he was sworn in as president in 2009.

“If there is one [a way] it will take a cleverer lawyer than me to come up with it,” says constitutional expert Pierre de Vos.

“No,” says a senior advocate not involved in the matter.

“I’d be surprised,” says a lawyer who is a self-confessed “player” of the system when it comes to criminal charges, also not involved.

“The president has exhausted his options on delaying the provision of the record,” says a serving high court judge not involved in the matter.

After many years of sometimes highly imaginative resistance to the handing over of the tapes, Thursday’s order by the Supreme Court of Appeal – that the National Prosecuting Authority must give the DA the tapes – seems to represent the end of that particular road.

DA probe
The DA demanded the tapes as part of the record of the decision to drop corruption charges against Zuma. With that record the party can, depending on the contents, launch an application for a judicial review of the decision to drop the charges. If that review is successful, the charges may be brought again.

But although the DA on Thursday celebrated the order that it must get the tapes, its actual goal – having charges pressed against Zuma – may still be a long way off.

“The spy tapes were always just a red herring, preventing the courts from the considering the real issue,” says De Vos. “That fight has been lost, but in the Stalingrad strategy you say ‘this block has been lost, now we fight for the next block.’?”

“Stalingrad” has become shorthand for Zuma’s legal strategy of fighting every technicality in every available forum. It has been successful, and could well continue to be so.

“Once you have a review application then a whole lot of possible options open to the respondent [Zuma] to make technical points,” says the serving judge. “There’s probably still a good year or two ahead before the review would be heard, then the appeals all the way up ... It’ll be another five-year saga before there is an outcome.”

Laying hold 
As of Thursday, however, it was not yet clear whether the NPA would, or even could, comply with the court order. Because prosecutors may plausibly be able to argue that they simply do not have the tapes.

In April 2009, then acting national director of public prosecutions Moketedi Mpshe said the intercepted telephone calls on the tapes showed an abuse of process verging on a conspiracy against Zuma, and so he had decided to drop the case.

Although Mpshe released very limited excerpts of the recordings, the only parties known to have, or have had, copies of the actual recordings are Zuma’s legal team and the intelligence services.


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