President Jacob Zuma
The High Court in Pretoria will hear the Democratic Alliance's case for being granted access to transcripts of the so-called spy tapes on April 30.
According to City Press, in heads of argument, Zuma's lawyers claim the tapes form part of Zuma’s confidential representations. Zuma, however, never gave copies of the tapes to the National Prosecuting Authority (NPA).
In 2009, when dropping the charges, then acting NPA boss Mokotedi Mpshe said Zuma’s lawyer Michael Hulley had only allowed prosecutors Sibongile Mzinyathi and Willie Hofmeyr to listen to recordings of the tapes.
After Zuma’s representations, the NPA independently obtained recordings from the National Intelligence Agency (NIA) of the same telephone intercepts between former NPA head Bulelani Ngcuka and then Scorpions boss Leonard McCarthy.
“The NPA is thus confident that its decision is based on information that was intercepted legally and obtained legally by the NPA,” Mpshe said at the time. Mpshe made four-and-a-half pages of transcripts of the tapes available to the media to show that there was political interference in the timing of the corruption charges against Zuma. But Zuma’s advocate, Kemp J Kemp, argues that the fact the tapes were obtained from the NIA – which the DA is relying on in order to get its hands on the full transcripts – was irrelevant.
“(If it were not for Zuma’s) disclosure of the transcripts to the NPA in its written representations, the (NPA) would not have accessed such transcripts and recordings with the NIA,” Kemp told City Press.
According to Kemp, “the fact that the transcript was disclosed, in small part, by the (NPA) in its written submissions (press statement) dated April 6 2009 does not detract from the nature or extent of the representations made to the (NPA) by (Zuma)”.
Last month the DA claimed Zuma's lawyers know the spy tapes could be damaging and do not want them to get out.
"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.
The NPA initially missed the deadline for responses to the DA's heads of argument, compelling the NPA to hand over the reduced record.
"This has further delayed the DA's quest to discover the truth about this case," Selfe said.
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 2012, 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.
NPA spokesperson Bulelwa Makeke could not immediately confirm the court date.
Spy tapes 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