After a 10-year legal war, President Jacob Zuma is trying to prevent the tapes that got him off the hook from being made public.
It is almost 10 years since the Mail & Guardian first revealed that the Scorpions were investigating then-deputy president Jacob Zuma – on November 29 2002.
Since then Zuma's decade-long battle to avoid prosecution on corruption charges has been the real political tsunami, ripping through institutions and careers.
It has led to the recall of a president, the factionalisation of the ruling party and its government, the destruction of the Scorpions, the departure of three national directors of public prosecutions and the tainting of the reputation of the National Prosecuting Authority (NPA).
Now Zuma's bid to avoid his day of reckoning – including accounting for the seed money that first funded what has become the Nkandla monstrosity – has entered a bitter new phase following the NPA's refusal to hand over copies of the so-called spy tapes.
The Zuma tapes
The tapes – secret recordings by the intelligence services of discussions between members of the Scorpions, the NPA and prominent political figures – were leaked to Zuma's lawyer, Michael Hulley, and used as the basis of the claim that the Zuma prosecution had been tainted by an "abuse of process".
Then-acting national director of public prosecutions Moketedi Mpshe cited intercepted conversations of former Scorpions boss Leonard McCarthy as central to his decision, in April 2009, to discontinue the prosecution.
In excerpted transcripts released by Mpshe, McCarthy appeared to have a number of discussions in late 2007 with people outside the NPA – including then-former national director of public prosecutions Bulelani Ngcuka – about the timing of charges being reintroduced.
Read More: The spy tapes timeline
Of concern was the looming Polokwane conference of the ANC – and the impact that recharging Zuma might have on the outcome.
McCarthy also appeared to make a special effort – with Ngcuka's assistance – to have the NPA's court papers in the Constitutional Court filed and made public on their due date, Friday December 14.
The papers – in reply to Zuma's constitutional challenge to the search and seizure operations carried out against him – set out the case against the man challenging Mbeki for the ANC presidency.
The intention appears to have been that delegates gathering in Polokwane that weekend would, in Ngcuka's intercepted phrase: "Wake up, think: What are we doing?"
In justifying his decision, Mpshe emphasised there had been a valid case against Zuma. He also noted that the prosecution team itself believed the case should continue and that it should be left to a court to decide whether to stop the prosecution.
But Mpshe argued: "Mr McCarthy used the legal process for a purpose other than for which the process was designed to serve, that is, for collateral and illicit purposes. It does not matter that the team acted properly, honestly, fairly and justly throughout. Mr McCarthy's conduct amounts to a serious abuse of process and offends one's sense of justice." It later emerged that part of Mpshe's legal justification appeared to have been lifted from a Hong Kong judgment that was later overturned on appeal.
McCarthy, who by then had left to join the World Bank, has never given his version of events.
The DA steps in
In 2009 the Democratic Alliance went to court to try to have Mpshe's decision reviewed and set aside.
A preliminary point was the right of the DA as part of the review process to have access to the "record of decision" – the documentary evidence on which Mpshe relied when deciding to terminate the case, which included representations made by Zuma's lawyers.
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 in Pretoria 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 appeal court ruling
The DA took this ruling to the Supreme Court of Appeal.
In March this year 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. On the record of decision, Judge Navsa made the following key finding: "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 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."
Navsa ordered that within 14 days – by early April – the national director of public prosecutions produce the record, with the following caveat: "Such record shall exclude the written representations made on behalf of [Zuma] and any consequent memorandum or report prepared in response thereto, or oral representations if the production thereof, would breach any confidentiality attaching to the representations."
The judgment also made reference to concerns expressed by Zuma's lawyers that there might be material in the record of decision that might adversely affect his rights and to which he might justifiably object.
To meet this concern, acting national director of public prosecutions Nomgcobo Jiba gave an undertaking that her office would inform Zuma of the contents of the documents to be released so that his lawyers could raise any objections.
It is this loophole that Jiba and Hulley have used to block the release of the spy tapes.
Return to Stalingrad
In the drawn-out litigation with the Scorpions, Zuma's lawyers became notorious for what was termed the Stalingrad approach – fighting off the prosecution street by legal street by taking technical and preliminary points.
The response to Navsa's ruling carries the same hallmarks. Two days after the expiry of the appeal court's deadline, the state attorney wrote to the DA saying the NPA was still compiling the record. In addition, there were "certain tape recordings" that were still in the process of being transcribed.
But the state claimed it was obliged to give Zuma's legal team an opportunity to consider whether there was any objection to the disclosure of the recordings.
The completed transcript was delivered to Hulley by April 25, to which he responded in a manner that suggested he believed he had been given a veto right, something not suggested by the appeal court judgment.
Asking for more time to consider the matter, Hulley noted: "We are presently not disposed to consenting to the release of any further information to the DA …"
No further response was received from Hulley until after the DA launched a new North Gauteng High Court application on September 18 to compel the NPA to comply with the appeal court order.
Since then, Jiba has argued in court papers that the recordings or transcripts are "inextricably linked" with Zuma's representations and therefore cannot be disclosed without Zuma's consent. Such objections, she argues, will have to be referred back to court for adjudication.
Hulley has merely indicated – without providing any argument – that at the hearing Zuma's lawyers will argue that the transcripts do not fall within the ambit of the appeal court order.
This leaves the DA in the absurd position that none of the material on which Mpshe publicly based his decision forms part of the "official" record.
Any adverse ruling in Gauteng is sure to be appealed.
What are they hiding?
The reluctance to deal with the tapes is both substantive and procedural.
All indications are that Mpshe took his decision under enormous pressure.
The political atmosphere in the run-up to the withdrawal of charges was extremely heated. Mbeki had been recalled in September 2008. Zuma was the ANC presidential candidate for the national elections just more than two weeks away.
Key Zuma allies made it clear to the M&G at the time that the lobbying was intense (although not necessarily communicated directly to Mpshe) and included implied threats of wider disclosure of surveillance material that might be personally, politically or professionally embarrassing to members of the NPA or Scorpions.
Mpshe's apparent reference to an obscure Hong Kong judgment might suggest that a decision was taken –and then legal reasons dug up to justify it.
Now, given that the prosecution team disagreed with the decision –and Wim Trengove, a senior advocate with deep knowledge of the case, had publicly lambasted it – there must be real concern in the Zuma camp that Mpshe's decision might not stand up to court scrutiny.
By blocking access to the transcripts, claimed as the very foundation of Mpshe's decision, Zuma's lawyers are preventing any meaningful review at all.
What else are they hiding?
So far, the only transcripts provided are small snatches of what intelligence sources have conceded was very extensive surveillance.
One intelligence source claimed to the M&G that the high-security conference room at NPA headquarters itself was bugged.
Justice would demand that the full context of the exchanges be disclosed.
It is possible that counterveiling interpretations and events might emerge from the full record that were not given due weight in the fevered atmosphere of April 2009. More likely, however, is that the full recordings – and the circumstances of their capture and delivery, both to Hulley and to the NPA – might disclose details that are embarrassing, if not illegal.
Certainly, the legality of the initial recordings, never mind the legality of their disclosure to Hulley, may well be called into question.
This is so, despite the inspector general of intelligence concluding that taps by both the National Intelligence Agency and police crime intelligence were legally authorised by the designated judge.
Former acting head of crime intelligence Mulangi Mphego revealed in court papers that the initial judicial approval for the surveillance of McCarthy was sought on the basis that he was suspected of links to a drugs cartel.
Now Judge Willie Seriti, who granted the application for the wiretap, would have us believe that he applied his mind to this application but does not remember coming across this extraordinary allegation about the man who was head of the Scorpions at the time.
And former intelligence minister Ronnie Kasrils has said publicly that he was bypassed by the National Intelligence Agency (NIA) – contrary to instructions he had issued after the hoax email debacle – when the agency applied for its own interception order.
It was the agency tapes, which covered most of the material disclosed by Hulley, on which the NPA relied for its decision.
As Mpshe explained at the time: "Although [Hulley's] recordings sounded authentic, the NPA decided to approach agencies that have a legal mandate to intercept telephone calls with a view to ascertaining whether they may have legally obtained recordings of the same conversations.
"The NIA confirmed to the NPA that it indeed had legally obtained recordings of many of the same conversations that were obtained during the course of its investigation into the circumstances surrounding the production and leaking of the Browse Mole report.
"The NIA indicated that it was able to share these legally with the NPA for the purposes of the investigation and for reaching a decision in this matter."
So it is clear that Mpshe based his decision on material he obtained from his own resources, although he was alerted to its existence by Hulley.
How the NPA will now argue that this material is governed by the confidentiality of Zuma's representations awaits illumination in the North Gauteng High Court. Do not expect enlightenment anytime soon.