President Jacob Zuma
Picture: Sunday Times

The acting national director of public prosecutions, Nomgcobo Jiba, says the courts must decide whether she should release electronic recordings and transcripts that former acting national director of public prosecutions Mokotedi Mpshe used in deciding to drop charges against President Jacob Zuma in 2009.

She said she would abide by the decision of the court and had not made submissions in relation to the merits of that issue.

The Democratic Alliance (DA) is fighting to gain access to the recordings of a series of phone conversations, known as "the spy tapes", used by Mr Mpshe to justify his decision to drop corruption charges against Mr Zuma in 2009.

In March last year, the Supreme Court of Appeal gave the National Prosecuting Authority (NPA) 14 days to produce all documents, recordings, materials and evidence that led to the withdrawal of criminal charges against Mr Zuma.

The DA went to the North Gauteng High Court in September last year to force Ms Jiba to deliver the reduced record, including the recordings, after the NPA failed to produce the recordings within 14 days. Mr Zuma’s legal team has argued that the transcripts of the tapes are not covered in this reduced record and are privileged.

The DA, in papers submitted earlier this month, argued that the recordings were not excluded from the reduced record because they were given to prosecutors by the National Intelligence Agency and not Mr Zuma’s legal team. They were therefore not part of his representations, the DA argued. Also, the NPA had already made parts of the recordings public, showing clearly that there was no breach of a confidentiality duty.

"The dispute as to whether this class of materials should be produced exists between the (DA ) and (Mr Zuma), which requires (it) to be determined by this court. If the court decides that these materials should be produced, the acting (national director of public prosecutions) will comply," counsel for Ms Jiba, Paul Kennedy SC, said in heads of argument submitted to the court on Friday.

However, Mr Kennedy said Ms Jiba should not be ordered to produce internal NPA memoranda, reports or minutes of meetings dealing with the contents of the recordings and transcripts, as she had sworn under oath that these internal memoranda referred to confidential communications made for Mr Zuma. This confidentiality between Mr Zuma and the NPA must be honoured, he argues.

Mr Kennedy said in relation to the recordings and transcripts, Ms Jiba had always adopted a neutral position.

"She has, from the outset, conveyed her position that she has no objection to handing over the electronic recordings and the transcripts thereof if there is no objection raised by (Mr Zuma), in whose favour the confidentiality undertaking operates."

Mr Kennedy said in the event of an objection being raised by Mr Zuma, and there being a dispute between the DA and Mr Zuma in that regard, " (it) could not be expected of the acting national director of public prosecutions to make a unilateral determination of the other parties’ dispute in that regard; it should be left to the court ," Mr Kennedy said.

He said it was significant that the Supreme Court of Appeal order expressly obliged the acting national director of public prosecutions to exclude material which, if produced, would breach confidentiality.

He said if the court were to rule in favour of Mr Zuma that the recordings and transcripts were covered by the confidentiality exclusion, it followed that the internal memoranda generated by the NPA must also not be produced.

However, if the court ruled in favour of the DA, it did not follow that NPA memoranda and minutes should then be produced.

Mr Kennedy said Ms Jiba had stated under oath that the internal memoranda, notes and minutes that were generated for purposes of the decision-making process involved reference to the other matters that were conveyed in strict confidence in terms of the undertaking provided to Mr Zuma’s legal team.

"There are compelling considerations of public interest in ensuring that when a party makes representations to the acting national director of public prosecutions on strict conditions of confidentiality, and an undertaking is (then) provided in that regard, this should be honoured," said Mr Kennedy.

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With Franny Rabkin

With acknowledgement to Ernest Mabuza and Business Day. 

This is quite astounding.

Previously only Zuma's representations were confidential.

Now suddenly the internal NPA memoranda and minutes that were used by the NPA to makes its decision to abandon the charges are also confidential.

What despicable nonsense?

What if the internal NPA memoranda say that Zuma's representations are nonsense and provide no basis for abandoning the charges?

Which is what I expect they contain.

Even if such internal NPA memoranda refer to the representations in any way that might be considered truly confidential, those references can be severed.

The NPA handed over nothing in the Reduced Record that contains anything circumscribing the decision it had to make.

That is extraordinary.

The NPA would have us believe that Cocky Mpshe made his decision based purely on nothing plus the unlawfully obtained transcripts and Zuma's representations.

They are lying.

Conversely the decision would be challengeable and overturnable because no mind had been applied properly to it.

So this is desperate Dan stuff.

The gold is in them memoranda.

Zuma's and Thales' recharging lies in those memoranda.