THE vicious legal battle involving the "spy tapes", recordings of phone calls that ostensibly got President Jacob Zuma off corruption charges, has dragged on for so long it raises questions about what is really motivating the players.

The court case, which is now in its fifth year but is barely off the ground because of the tapes, is not even supposed to be about the recordings in the first place.

The real case is about the decision by Mokotedi Mpshe, who was acting national director of public prosecutions at the time, to drop corruption charges against Mr Zuma in 2009, thereby clearing the way for him to become the country’s president.

It is an important case because if the Democratic Alliance (DA) ­ which went to court seeking to review the decision ­ were to win, it could mean a reinstatement of the charges against Mr Zuma. But after five years of litigation, the case is stuck ­ caught up in a prolonged debate about what documents the National Prosecuting Authority (NPA) can and should release to the DA before the case can proceed.

When he announced the decision, Mr Mpshe said that the tapes ­ recordings of conversations between former Scorpions boss Leonard McCarthy and former prosecutions head Bulelani Ngcuka about when to charge Mr Zuma with corruption ­ showed such political manipulation of the charges that the prosecution had to be discontinued.

Mr Mpshe’s decision was viewed by legal experts as dubious in law, to put it mildly, and the DA immediately went to court to review it and set it aside. It lodged its founding court documents and, as is normal in review cases, requested the "record" of the decision ­ all the documents that were before Mr Mpshe when he made the decision.

So far, all pretty standard.

However, now the fight, which has already been to the Supreme Court of Appeal once, is due back there in August, this time over what the court’s earlier order ­ that a "reduced record" be provided to the DA ­ actually meant. More specifically, it is about which documents should be included in the "reduced record", and whether this includes the spy tapes as well as records of internal NPA discussions on the issue.

The appeal court’s formulation of what constitutes the "reduced record" is a bit unwieldy: everything except "the written representations" made on behalf of Mr Zuma, "and any consequent memorandum or report prepared in response thereto or oral representations if the production thereof would breach any confidentiality attaching to the representations".

The DA says that the reduced record clearly includes the recordings; Mr Zuma says it does not, and the NPA says it will hand over whatever the court orders it to, once the Supreme Court of Appeal has clarified.

In heads of argument, the president’s counsel, Kemp J Kemp SC, says the transcripts of the tapes are inextricably linked to Mr Zuma’s representations because without the representations, the NPA would never have found out about the recordings.

"Consequently, the confidentiality which covers the written and oral representations extends to the transcripts," he says.

But the DA’s counsel, Sean Rosenberg SC, says the order does not cover the transcripts because the tapes were not given to the NPA by Mr Zuma but by the National Intelligence Agency, which had declassified them.

Mr Rosenberg says the idea that the transcripts were confidential was never raised before and is therefore an afterthought, accusing Mr Zuma of having "locked the DA into interlocutory disputes which have delayed and frustrated the review".

One has to wonder whether it is actually the tapes, and not Mr Mpshe’s decision, that they all really care about.

While the DA blames the NPA and Mr Zuma in court papers for delaying tactics, it arguably could manage to make out its case without those tapes.

The question to ask, then, is why the DA did not just press ahead with its case on the basis of the information and documents it already had?

The law on this score is that the record of a decision is obtained for the benefit of the applicant (the DA in this case). If the applicant wants to go ahead without a full record, it is entitled to ­ unless there is a third party involved, in which case the record is for his benefit as well.

But in this case the third party is Mr Zuma ­ the one fighting tooth and nail to keep the tapes out of court.

The DA’s James Selfe says party insiders debated "at great length, over a long period" about whether to go ahead without pushing for all the documentation. They decided to press for the record because of "a very, very important principle: if you have a court order and just sit on your hands and don’t give effect to it; and you are part of the administration of justice in South Africa, then we have a very serious problem".

He says it is not just the tapes ­ "not per se all that important" ­ that the DA wants, but also minutes and memorandums that documented a debate within the NPA about the dropping of the charges ­ a debate that could point to motive, he says. If the DA can show that the decision was politically motivated, it would go some length to showing that the decision was irrational, he says.

However, the NPA says it has not breached any court order ­ "far from it", says the NPA’s Bulelwa Makeke.

Ms Makeke refers to the NPA’s court papers in response to the DA’s pressing for the release of the recordings, in which it argued that the agreement that led to the court order on the reduced record was that Mr Zuma would be entitled to look at the reduced record prior to it being handed over and to object if he had a problem.

"Should Mr Zuma’s legal team object for whatever reason to the disclosure of any part of the record, it is clearly not for the NPA to decide whether the objection has merit or not," says the NPA.

Only a court of law can decide the question, says the NPA, which is why it will abide by any decision of the appeal court.

All of this puts the ball in Mr Zuma’s court: a further unanswered question is why, if the tapes were what got him off the hook with the NPA, he would not want them made available to court. Mr Zuma’s spokesman, Mac Maharaj, would not comment as the matter is before the courts.

The irony of this case is that, if the recordings did get Mr Zuma off the hook, it would help his case and would be detrimental to the DA’s case. Yet it is the DA that wants them and Mr Zuma who does not want to give them up.

It is all very strange. Maybe if we were ever to know what is on those tapes, everything would become much clearer. For now, following this case is like watching TV with the sound turned off.

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With acknowledgement to Franny Rabkin and Business Day.

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Much of the intrigue that goes around this matter is purely political.

In the meantime, the chief crook could have served a third of his sentence this far.

In reality Kemp J Kemp has bought him with our money at least ten years of freedom.

And in five years from now, which deputy sheriff will serve a summons on him in Nkandla to appear in the High Court for corruption and racketeering along with Pierre Moynot and Alain Thetard.

Now you know why this fool has that little smile on his face and Kemp J Kemp has a new farm.