‘Spy tapes are like a French girl’

2014-05-25 15:00

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Lawyers of President Jacob Zuma say the “spy tapes” should remain secret because they’re a bit like a photograph that shows a supposedly dead person still alive and well in Paris.

This is an example Zuma’s lawyers have employed to show why they think the so-called spy tapes – which got Zuma off the hook on fraud and corruption charges in 2009 – should be kept secret.

The DA’s court battle to reverse former national director of public prosecutions Mokotedi Mpshe’s decision to drop the criminal charges against Zuma is ready to return to the Supreme Court of Appeal (SCA) for the second time.

In heads of argument filed by Zuma’s lawyer, Kemp J Kemp, he argues that the spy tapes should remain secret because they’re the evidence at the centre of confidential representations Zuma made to the National Prosecuting Authority (NPA).

“Representations must often have at [their] core ‘real’ evidence,” argues Kemp.

He uses the example of a person accused of murder showing the prosecution a photograph of his supposed victim “alive and well, and living in Paris”.

The fact that the prosecution then independently gets a copy of the photograph from the person who took it does not mean the photograph (or tapes) aren’t still part of the confidential representations, Kemp argues.

This argument is an answer to one of the DA’s central contentions in the case: that Zuma can’t claim the tapes are part of his representations because he never actually handed them to the NPA.

When Zuma brought the tapes to the attention of the NPA, his lawyer, Michael Hulley, only made them available for senior NPA officials to listen to.

The NPA then independently obtained the tapes from the National Intelligence Agency, which declassified them.

The DA has argued that Mpshe, in his announcement of the decision to drop corruption charges against Zuma, made it “perfectly clear” that the transcripts were not part of the confidential representations.

The DA has also taken a swipe at the president and former acting national director of public prosecutions Nomgcobo Jiba, for having “locked the DA into interlocutory [interim] disputes which have delayed and frustrated the review” for five years, Zuma’s entire first term of office.

An interlocutory dispute is an argument between parties that deals with preliminary questions not related to the main court case, such as whether a particular piece of evidence will be allowed in court.

Last year, the high court in Pretoria found against Zuma, ruling that the NPA must file transcriptions and copies of the tape.

“It is opportunistic for [Zuma] to now contend that there was a breach of confidentiality when he benefited from the alleged disclosure,” ruled Judge Rammaka Mathopo at the time.

It is this order Zuma is now appealing against.

The case already made legal history once, when the SCA ruled in 2012 that a court could review a decision to drop corruption charges.

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