The Democratic Alliance has accused the National Prosecuting Authority of protecting President Jacob Zuma from prosecution and subverting the criminal justice system to keep him out of jail.
This comes days after the NPA opposed a new application by the DA in the North Gauteng High Court in Pretoria to obtain the spy tapes and written statements that formed the basis of the 2009 decision to withdraw racketeering, fraud and corruption charges against Zuma.
DA federal executive chairperson James Selfe said: "It is outrageous that a key component of the justice and constitutional development department disregards the order of the Supreme Court of Appeal [in defence of Zuma].
"They are nine months behind the deadline and we still have not received anything, as ordered by the Supreme Court of Appeal. What the DA has done now is file an application in terms of rule 6(11) of the court rules in order to compel the NPA to hand over the documents and to declare them in contempt of court."
The DA's lawyer, Samantha Solomons, confirmed this week that the NPA had given the party notice that it would be opposing its latest court application.
In March, the appeal court in Bloemfontein ordered the NPA to hand over relevant documents to the DA's lawyers, giving it 14 days to comply with the court order. The judgment was handed down after the DA went to court to establish whether the decision by Mokotedi Mpshe, then the acting NPA head, to withdraw charges against Zuma was rational and legal.
But the documents that the DA has received so far from the NPA apparently bear no relation to the evidence that might have led to the NPA withdrawing charges against Zuma.
According to court papers seen by the Mail & Guardian, Zuma's lawyers have refused to consent to the release of the spy tapes, claiming they are confidential.
The tapes were crucial to the NPA's decision and contained intercepted telephone conversations between former Scorpions boss Leonard McCarthy and former NPA chief Bulelani Ngcuka. Mpshe said at the time that the secret connivance between McCarthy and Ngcuka in relation to the Zuma case amounted to an "intolerable abuse".
But in its new high court application the DA argued that the recordings could not possibly have been given in confidence to Mpshe, because he quoted extensively from them when announcing his decision to discontinue the prosecution of Zuma on April 6 2009.
The case against Zuma, if reinstated, could complicate matters for the president as the ANC's Mangaung conference approaches in December.
Zuma was this week nominated by several provinces – including KwaZulu-Natal and the North West – for a second term in office. But Zuma's challengers in the ANC say that if the matter is set aside and graft charges are reinstated, they will call for him to step down. They argue that the country cannot afford to have a president who is facing corruption charges.
Every trick in the book
A senior ANC leader told the M&G this week that Zuma was a worried man and trying "every trick in the book" to stay out of jail.
"It is clear they [the NPA] are going to lose the review," the leader said.
Shadrack Gutto, constitutional law expert and professor at Unisa's Institute for African Renaissance Studies, slammed the NPA's decision to defy the appeal court's order and said it was "shameful".
"Defying a court order amounts to contempt of court … It is unfortunate, because all organs of state are enjoined by the Constitution to give the courts their full support and to ensure that there is a strong judiciary and that there is a rule of law in the country. It is lawlessness to defy a court order," said Gutto.
"He [Zuma] is clearly fighting like hell, but that really doesn't stop the wheels of justice from moving forward."
ANC Youth League acting president Ronald Lamola said: "The NPA's failure to comply with the court order does not send a good message at all. They must respect the court order. Even if we differ [politically] with the DA, we think that they [the NPA] should respect the court order in order to send a clear message to all that nobody is above the law."
The NPA's spokesperson, advocate Vuyisile Calaza, said: "The matter is already before the court and we will not comment."
Comment had not been received from presidential spokesperson Mac Maharaj at the time of going to press.