In all likelihood, North Gauteng High Court judge Rammaka Mathopo will spend Thursday morning reading draft and hypothetical court orders prepared by lawyers representing the parties involved in the DA's spy tapes court application. The case could potentially order the NPA to strip the record from internal NPA memoranda and notes about them and hand these over to the Democratic Alliance (DA).
On Wednesday, the DA brought an application, asking the court to firstly compel the acting national prosecutions boss, Nomgcobo Jiba, and President Jacob Zuma to comply with a Supreme Court of Appeal judgment that says they must hand over the record that led to acting Jiba's predecessor, Moketedi Mpshe, dropping fraud and corruption charges against Zuma in 2009.
Secondly, the DA wants the court to find Jiba in contempt of court for ignoring that court order: the record and the tapes is in the custody of Zuma's lawyer, Michael Hulley.
Mathopo did not indicate when he would make the order – either advancing the DA's cause or nipping it in the bud – but he indicated that draft orders should be sent to him on Wednesday night and early on Thursday morning for his consideration.
Mathopo asked what the consequences would be if the tapes were handed over to the DA but not the internal memoranda and other NPA documents around the tapes, which might form part of Zuma's off-the-record representations that are confidential.
Zuma's advocate, Kemp J Kemp was adamant that the tapes could not be divorced from the confidential record and vice-versa, and that the tapes could therefore not form part of the reduced record.
Reduced record
But Sean Rosenberg SC, representing the DA, disagreed because the basis of the dropping of the charges against Zuma was mainly due to the recordings. In any event, the DA said, the Supreme Court of Appeal could not logically have envisaged a reduced court record that excluded the tapes.
The NPA gave the reduced record to Hulley after the appeal court's decision, apparently to grant Zuma the opportunity to make any objections. This is because of Zuma's long-standing argument against the release of the tapes and record – that it contains his confidential representations to the NPA.
The appeals court ruled that these representations should be excluded from the record, but it did not specifically rule that the tapes were part of the record. The tapes apparently contain conversations between former NPA boss Bulelani Ngcuka and former Scorpions boss Leonard McCarthy, during which the two allegedly discussed the timing of charging Zuma in the context of the ANC's 2007 Polokwane conference.
In that appeal court ruling, Judge Navsa said: "Without the record, a court cannot perform its constitutionally entrenched review function … The DA … has merely asked for an order directing the office of the national director of public prosecutions (NDPP) to dispatch … the record of proceedings relating to the decision to discontinue the prosecution, excluding the written representations made on behalf of Mr Zuma … I can see no bar to such an order being made."
The reduced record was to be handed over within 14 days. Acting NPA head Jiba felt that Zuma's lawyers needed to see the record to give them an opportunity to raise objections. And they did, as the NPA led the court to believe on Wednesday.
Hulley still has the tapes and refuses to give them to the NPA, ostensibly because its contents cannot be divorced from Zuma's confidential representations.
'Reckless'
Kemp argued in court on Wednesday that the tapes were also part of Zuma's private representations because they were presented to Mpshe as part of Zuma's bid to have the charges against him dropped.
The NPA said it could not merely comply with the appeal court order without infringing on Zuma's right to have those representations – whether including or excluding the tapes.
As Paul Kennedy SC, for the NPA, told the court on Wednesday: "To sommer just hand over the tapes as the DA suggests is reckless".
But the DA argued that the NPA should be held in contempt of court because not only did it allegedly breach the court order which compelled it to hand over the reduced record, but it did not take any steps at all to attempt to do so.
In making this point, Rosenberg said Jiba "has to take steps to file the record".
He said it was up to the first respondent – Jiba – to decide what constitutes the record (taking into consideration factors such as the relevancy of the material, and what the SCA judgment ruled should be included), and to then file that record.
The NPA could not reasonably have taken these steps because, as Kennedy pointed out to the court on Wednesday, because the NPA itself is not really sure if the tapes form part of the reduced record at all.
Further evidence
Kennedy said the NPA took a view on whether or not the tapes should be included, but that it would not reveal this because expressing that view would impact its independence.
But Rosenberg, in furthering his argument that the NDPP should be held in contempt of court, said this was "further evidence" that the NPA had not applied its mind.
And, he said, the party "under attack" – Jacob Zuma – could not be the final arbiter of whether or not the tapes should be included in the record.
As Mathopo noted during the proceedings, the NPA "seemed almost offended" that the DA felt it should be held in contempt of court for not handing over the tapes, and said the authority acted completely impartially throughout the process. It was an act of maintaining its independence that led it to this point, Kennedy argued.
In fact, the NDPP is "stuck in the middle" of a tug-of-war over the spy tapes between Zuma and the DA, Kennedy insisted.
No objection
The NPA had no objection to handing over the record and the tapes, Kennedy said, but again leaned on the caveat that has been the bone of contention all along: that the NPA owes Zuma the right to look at the record first and to give him a chance to decide whether or not its release will harm him.
Mathopo appeared almost exasperated when he asked if the contentious bits in the record could not be "blotted out". Kennedy said they could not, as they were "inextricably linked" to the rest of the material. He added that the sentences would not make sense.
But "if the third respondent [Zuma] changes his mind" and waives his right to have his representations considered private, "the problem of confidentiality goes away", Kennedy added.
The NPA said that in that event it would then hand over the record without question.
Mathopo reserved judgment, but on Wednesday afternoon indicated that he would consider granting an order that stripped the tapes, and the transcripts thereof, from any other internal NPA notes around them.