The DA has moved a step closer to getting its hands on the spy tapes that cleared President Jacob Zuma of serious corruption charges.
Judge Rammaka Mathopo this afternoon appeared to be leaning towards giving an order compelling the National Prosecuting Authority (NPA) to hand over transcripts of the tapes when he asked parties if the spy tapes could be “excised” from other material the DA wanted.
The court had nearly completed hearing DA Advocate Sean Rosenberg’s final arguments when Mathopo interrupted proceedings to address Zuma’s advocate, Kemp J Kemp.
“I realise that what I’m doing is unorthodox, Mr Kemp, but is it possible to grant the order in respect of the (spy) tapes and not the notes (internal NPA memoranda)?
“Can I excise one from the other and if I do, assuming I’m inclined to, what hardship would it cause (Zuma)?”
Mathopo was referring to the fact that the DA has asked the North Gauteng High Court to compel the NPA to release transcripts of the spy tapes, which led to the dropping of corruption charges against Zuma in 2009, as well as internal NPA memoranda that dealt with the decision.
This was after the Supreme Court of Appeal last year ordered the NPA to file all the records related to the decision to drop corruption charges against Zuma, but excluding the confidential representations Zuma had made to the NPA.
Kemp today argued that it was not possible to excise the spy tapes and internal memos from Zuma’s confidential disclosures.
Kemp said the transcriptions of the spy tapes, were “part and parcel” of the protected, confidential disclosures that Zuma had made to the NPA when he was facing corruption charges.
He said the fact that the NPA had independently obtained transcripts of the tapes from the National Intelligence Agency (NIA) did not change the fact that the NPA would never have known about the tapes had it not been for Zuma’s legal team.
“If anybody had asked us on that day: ‘Were the facts and information and content of these (intercepted) telephone conversations part of your representation?’, the answer could only have been ‘Yes’.”
Kemp argued that it was irrelevant that Zuma had never complained that parts of the transcripts were released by acting prosecutions head Mokotedi Mpshe when he announced charges against Zuma had been dropped.
“What was there the third respondent (Zuma) could have done? The announcement was made on national TV. You can’t make people unhear or unsee the things they’ve seen,” argued Kemp.
He was also opposed to the idea that any of the NPA’s internal memoranda in which Zuma’s case was discussed could be disclosed to the DA, because he said they would reveal the contents of the spy tapes, thereby also violating Zuma’s confidential disclosures to the NPA.
Rosenberg, for the DA, argued that disclosures to the NPA were confidential to protect an accused from having his or her disclosures used against him, which was distinct from this case.
Rosenberg said that the DA had never specifically asked for the spy tapes because they’d naturally assumed they would form part of the court record.
“There was such a clear distinction between confidential representations and this other material (spy tapes), which had already been extensively quoted from (by Mpshe), anybody would assume it was going to form part of the record (the NPA) had to file.
“There could have been no basis in believing they were confidential,” argued Rosenberg.
Read more on the case here.
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