Curiouser & curiouser: What's on the spy tapes?
Up to the point Helen Zille marched out of the North Gauteng High Court carrying a package marked "tamper evident security bag", there was no certainty that the Democratic Alliance (DA) would actually get their hands on the 'spy tapes'. There was always the risk that a last-minute hitch would deny them access. It's almost too good to be true that after a five-year battle with the National Prosecuting Authority (NPA) and President Jacob Zuma's lawyers, the recordings and transcripts were finally handed over. On Thursday, both the president's office and the ANC welcomed the handing over of the spy tapes. It all seems a little fishy, doesn't it?
A media statement issued by the ANC headquarters at around 11:30 on Thursday was the first real signal that the NPA would in fact comply with the order of the Supreme Court of Appeal (SCA) and hand over the spy tapes to the DA. The 'spy tapes', as they are colloquially called, are the recordings and documents the NPA used to justify the dropping of corruption charges against Zuma in 2009. Of particular interest was the recording of alleged conversations between people involved in Zuma's prosecution, which showed a political conspiracy against him.
The DA fought a long legal battle to gain access to the records, and was finally victorious last week when the SCA dismissed Zuma's application to prevent their release. The NPA had a week to comply with the order.
The statement from Albert Luthuli House was curt: "The African National Congress appeals to the National Prosecuting Authority to comply with the judgment of the Supreme Court of Appeal on the so-called spy tapes as delivered last week. The judgment calls for the NPA to hand over the digital recording of conversations by the deadline of today. It is our hope that compliance with this ruling will bring this matter closer to finality."
There is no possible way the ANC would have issued the statement if there was going to be a spectacular backpedal by the NPA. There is also no way the already unstable NPA would risk the wrath of Gwede Mantashe by withholding the documents. There was obviously some indication given to the ANC that there would be a handover.
The DA, understandably, milked the occasion for all it was worth. They had spent about R10 million in legal fees to get access to the documents, in order to review whether the dropping of the charges against Zuma was justifiable. After evaluating the material for confidential information relating to Zuma's submissions to the NPA, retired judge Noel Hurt gave permission for the tapes to be released to the DA.
DA leader Helen Zille addressed about 150 supporters waving "give us the tapes" placards outside the North Gauteng High Court. She painted the DA as the vanguard of the new struggle, linking her party's five-year fight for access to the spy tapes to the battle for a better South Africa.
Zille said safeguarding democracy required eternal vigilance. She called Thursday a historic day and said everyone could tell their children about when the DA stood up for a judicial system free from political interference. To drum up the patriotism, she rounded up her speech by singing the national anthem, and then marched into the building to get the tapes.
Zille posed for pictures with NPA representatives handing her an envelope containing a memory stick, on which the recordings are apparently saved. But then, just before she could march out of court triumphantly, North Gauteng High Court deputy judge president Aubrey Ledwaba paused proceedings so he could study the ruling giving the DA access to the evidence. While Ledwaba's intervention was unexpected, the DA said it did not suspect any foul play and that the judge simply wanted to be clear of what the ruling allowed.
Zille was eventually able to have her moment of triumph, standing outside the court holding an evidence bag aloft. "They are giving us transcripts of tapes and copies of tapes that they have tried to prevent from us from happening for five years through six court cases. I believe we can now proceed with our review application," said Zille.
The DA strongly believes former NPA acting head Mokotedi Mpshe was under political influence when he decided to drop charges of fraud, corruption and racketeering against Zuma. Mpshe said at the time that the spy tapes revealed political interference in Zuma's prosecution, which meant that the NPA was unable to proceed with the case. At the time, he made public transcripts of alleged conversations between former Scorpions boss Leonard McCarthy and the former head of the NPA Bulelani Ngcuka, showing that there was political manipulation of Zuma's prosecution.
Since then there has been speculation and conflicting reports about whether the tapes belonged to the National Intelligence Agency or Crime Intelligence, about how they landed in the possession of Zuma's lawyer Michael Hulley and whether they still existed. There has also been doubt cast on whether the recordings contain the conversations Mpshe cited when he announced the scrapping of the case against Zuma.
The DA's best bet to have the case reviewed is if those conversations are not on the tapes. But whatever is on them, and the record of evidence, the DA will make a bid to have Zuma recharged. This process could take years and Zille told supporters the battle had just begun.
Curious though was that after a monumental legal battle to keep the tapes concealed, the presidency issued a statement saying Zuma welcomed the release. "The record which is being filed was after consultation and verification by the NPA, the Democratic Alliance and lawyers representing the president. Judge Hurt will today also be furnished with separate internal documentation which he will consider in light of whether it reveals President Zuma's confidential representations to the NPA or not," the statement read.
"All of this emanated from the agreement which the parties reached and which was presented to the SCA for incorporation into the order of court. This process is designed to determine what constitutes the record upon which the NPA decision was based.
"The president is happy with the process thus far," the statement concluded.
It raises the question that if the president is "happy", why he fought so tenaciously to make sure the tapes remained secret. From the concessions made by Zuma's advocate Kemp J Kemp in the SCA that there was no justification for withholding the tapes, to the president "welcoming" the handover to the DA, there appears to be either a change of strategy or some certainty that the tapes will validate Mpshe's decision. But if the tapes do in fact contain what Mpshe says they do, why the titanic battle not to have them released?
There is now speculation that evidence may have been tampered with, but that is perhaps the riskiest thing that could ever be done. With all the skullduggery going on the NPA, it would be most foolhardy for anyone there to be involved in such an act. They would in all likelihood get caught, probably by someone else at the NPA.
Then again, this is the fate of the president of South Africa. With all the resources of the state at his disposal, could extraordinary measures not be employed to protect him? It is almost too horrifying to consider that evidence could be tampered with to prevent the head of state from being prosecuted.
So was it that Zuma's legal team just followed their standard "Stalingrad" strategy until all options were exhausted, not because they feared the contents of the tapes, or that something else is going on that we do not quite understand?
To add to the strangeness around the matter, Zuma held a meeting with the National Director of Public Prosecutions (NDPP) Mxolisi Nxasana on Thursday. A statement from the presidency was only two sentences long, saying they "held further discussions on matters relating to the recent announcement by the president of the intention to hold an inquiry into the NDPP's fitness to hold office."
"The president will meet the NDPP soon again," the statement concluded.
Did the spy tapes come up at all? We will never know. And it might be a while before the contents of the tapes are revealed.
When Zille came out of court, she said "a forensic computing expert will take the bag from me", meaning the tapes will be examined by experts first. The DA has also said they would not make the evidence public.
DA spokesperson Phumzile van Damme said the court order limited the information to the DA and the NPA and if the media wanted access, it would have to apply to the courts. While the DA had positioned itself as able to deliver the tapes to all South Africans, a judgment by Judge Ashley Binns-Ward in the Western Cape High Court found in a similar case of revision that court files could only be shared between the parties involved.
"The DA is therefore prevented, by law, from releasing the contents of the spy tapes to the public until the stage when, and if, the Zuma matter is before a court of law," said van Damme. "The DA will be reviewing the contents of the spy tapes carefully and will make an announcement in due course about the way forward. We would welcome the media applying to the SCA to gain access to the spy tapes as the contents thereof are in the public interest."
So until then, the guessing game about the spy tapes continues. If the conversations in question are not on the tapes, surely the DA will be dying to say so.
In the meantime, Zuma's troubles continue to mount. What will come to a head first - him being forced to pay back the money for the Nkandla upgrades, or facing the possibility of being recharged through a court application by the DA?
It seems the president is running out of room to manoeuvre. Or perhaps he is way ahead of the game and we just do not know it yet.
Time will tell.
This column first appeared on Daily Maverick.