An application by the Democratic Alliance (DA) to the North Gauteng High Court to compel President Jacob Zuma’s attorney, Michael Hulley, to release the "Zuma spy tapes" is becoming one of the most eagerly awaited cases since Zuma took office.
At stake appears to be the entire process of how Zuma became president.
At the same time, there are many critics of Zuma who believe this issue could turn out to be the final determination of whether the legal system is living up to the constitutional guarantee that "all are equal before the law".
The tapes were accepted by then acting National Prosecuting Authority (NPA) head Mokotedi Mpshe in 2009 as proof that there had been a political motive in the decision to charge Zuma with corruption stemming from the conviction of Schabir Shaik, immediately after the African National Congress’s (ANC’s) Polokwane conference. The NPA said the recordings featured then Scorpions head Leonard McCarthy and former NPA head Bulelani Ngcuka discussing when to charge Zuma.
The DA has since lodged an application for a judicial review of that decision, and has won a Supreme Court of Appeal order compelling the NPA to release the record of its decision so that the DA can mount its case. As the tapes appear to be part of that record, the party contends it must now have access to the tapes. But Hulley has refused to hand them over, saying he made those submissions to the NPA under a promise of confidentiality.
It is for this reason that the DA is now going back to court, claiming Hulley is now in contempt. Virtually every legal academic who has spoken publicly on this issue appears to disagree with Hulley.
Perhaps David Unterhalter, a constitutional law professor at the University of the Witwatersrand, explained it best when he said "production" and "confidentiality" were two separate issues.
In his view, Hulley would have to "produce" the tapes for the DA, but he could then request, legally, that their contents be kept confidential.
One could imagine how the public perception of our justice system could be affected if someone were to be publicly accused of a crime and then made secret submissions to prosecutors, who then withdrew the charges and refused to explain why.
This is exactly what appears to have happened in this case.
Considering that the constitution specifically calls for transparency in the legal process, it would appear that Hulley will have a difficult case to make when the DA’s application is heard.
It has been claimed that Hulley might be playing a delaying game and that he is merely waiting for the ANC’s Mangaung conference to be over before making the tapes public.
However, it would appear unlikely that the content of these tapes would make much difference to the internal political mathematics of the ANC.
Zuma could merely claim the tapes were extensive proof that he has been mistreated.
The fact that he was elected head of the ANC long before the taped conversations were made would militate against any claim that they could damage him.
While Hulley has a copy of the recordings, the other organisation which has them, the National Intelligence Agency (NIA), is refusing to comment, saying it is between the courts and Hulley. This could be seen as an indication that the NIA is firmly under Zuma’s control through his close ally, State Security Minister Siyabonga Cwele. Given the above and that Zuma is Hulley’s client, it seems the DA’s sole option here is to approach the judiciary.
However, the real test could come if a court rules Hulley is in contempt. Whether he would be willing to go to jail to keep the tapes secret remains to be seen.
This column appeared in The Business Day.