A triumphant Democratic Alliance has the infamous Jacob Zuma spy tapes, but can't share the contents with the general public.
The victorious exit was carefully planned. Just outside the gates of the high court in Pretoria a group of about 50 Democratic Alliance supporters had gathered, in their party T-shirts and brandishing placards. In front of them the media were waiting, cameras at the ready. The only missing element was Helen Zille and the infamous, much fought-over spy tapes.
“This is the shot,” DA communications director Jamie Turkington told Zille as he arranged the small DA group for what turned out to be only the first time on Thursday afternoon.
Less than half an hour before a forensic expert acting for the DA, tasked with ensuring an unbroken chain of evidence for the copy of the intercepted telephone recordings, had held in his hand an envelope containing that copy. After five years of legal battles, the “end of the beginning”, as Zille put it, of the process of challenging the dropping of corruption charges against President Jacob Zuma had seemingly ended.
But as Zille made her first exit and the small crowd of supporters roared, she frantically signalled for them to stop and be quiet. Two things had spoiled the made-for-media moment: judges complaining that the noise from the tiny sound truck and supporters was disrupting court hearings inside, and the absence of the tapes.
“I’m afraid to say we don’t have them quite yet,” Zille said, in one of many formulations she would repeat over the next 10 minutes, before begging for silence.
The National Prosecuting Authority had done its part and handed both a copy and the “original” of the intercepted phone calls to the registrar of the court. The registrar, in turn, after pictures were taken with Zille, had handed the copy to the DA. Zille had posed next to the small white envelope containing the memory stick with the recordings. All that was left was to complete the handover process by lodging the “original” with the office of the judge president for the region.
But Deputy Judge President Aubrey Ledwaba wanted to study the order of the Supreme Court of Appeal that was being executed with the handover, and sent Zille off, empty-handed.
A little over an hour later, the second exit went better. “Here we go,” Turkington told Zille, and she walked out to a storm of camera shutters – this time brandishing a photogenic “tamper-evident” package.
“This is a great day for democracy,” Zille said. Minutes later, to the relief of the judges in hearings, the entire event was rapidly winding down.
For all the manufactured drama, however, the tapes remain under that “tamper-evident” seal as far as the public is concerned. The DA could not make the tapes available to, say, journalists, Zille told the media scrum, without a specific order from the Supreme Court of Appeal.
This, the opposition leader said, because of the precedent set by another legal battle the DA is waging, and judgment in that case was delivered exactly a week before Zille showed off the tapes for the cameras.
In that judgment, in the high court in Cape Town, Judge Ashley Binns-Ward had ruled that the public does not have the right to see confidential information that the DA-led Cape Town city council had obtained from the South African National Roads Agency (Sanral) in a battle over toll roads – at least not until legal proceedings started, and perhaps not until they had ended.
The complex judgment cited cases from Britain, Australia and the United States (coincidentally, a 1978 case involving another president, Richard Nixon), and quoted various other judges at length.
Although Binns-Ward wrestled with issues of freedom of speech, and dismissed many arguments brought by Sanral, he ultimately said that “no person, including any recipient [of the evidence], shall be permitted, unless authorised thereto by Sanral or by the court, on application, to disseminate, publish or distribute any part of the administrative record, or any part of any affidavit in the supplementary founding papers, that quotes or substantively reproduces the content thereof, before the hearing of the aforementioned pending review application”.
If that ruling applies to the spy tapes, as the DA believes it does, it would render them secret until the party brings an application for judicial review of the decision to drop corruption charges against Zuma.
Although the party and its lawyers will be able to use the information to prepare arguments, so-called “strangers to the case” will not be privy to them.
The DA said it will still have to study the tapes, as well as other evidence on the decision to drop charges against Zuma that it has yet to receive, before making any decisions.
But Zille made no secret of the party’s intentions, saying its review application is now in the works, and that the party hopes “that President Zuma, who has always asked for his day in court, will now come and have his day in court”.