Cape Town - The country has waited five years to hear what is really on the “spy tapes”, but when it does there is a strong chance it will be left wondering what all the fuss was about.
The other material to be released this week may prove more explosive, however.
Thursday is the deadline for the National Prosecuting Authority to surrender the tapes it and President Jacob Zuma’s legal team fought so hard to keep under wraps, but it may be a while before the contents become public.
One reason speculation has flourished is the fact that the Zuma team has resisted the tapes being released at every turn, when supposedly the contents show the more than 700 corruption charges against him were part of a plot to nip his presidential ambitions in the bud.
Yet, in announcing his decision to drop the charges in 2009, then-acting National Director of Public Prosecutions Mokotedi Mpshe made it plain that there was nothing on the tapes that would have fatally damaged the prosecution’s case.
Instead, Mpshe argued there had been an abuse of process: the timing of the charges had been manipulated for ends other than the legitimate purpose of a prosecution, which is to secure a conviction.
He alleged the former head of the Scorpions, Leonard McCarthy, and his NPA counterpart, Bulelani Ngcuka, had discussed when to charge Zuma with the aim of maximising damage to his campaign for leadership of the ANC.
He produced transcripts of intercepted conversations between them purportedly demonstrating this conspiracy.
These recordings, and possibly much more material gathered by the National Intelligence Agency during its investigation into the production and leaking of the infamous Browse Mole Report, are what is supposed to be on the tapes.
But because only snippets of the conversations were made public, and because of the fight Zuma and the NPA put up to keep the rest secret, there has always been suspicion about what the tapes really contain, with some even suggesting they don’t exist.
DA federal council chairman James Selfe, who led the party’s fight to have the tapes released, said there were several possibilities as to what they would reveal.
“Number one, the tapes could have been forged or falsified in some way, or edited in such a way as to have made it (the decision to drop the charges)… not only irrational, but also fraudulent.”
The full transcripts might also show Mpshe quoted the conversations between McCarthy and Ngcuka out of context.
“There might be a whole context that proves another narrative, that would improve our case,” Selfe said, referring to the next step in the battle, the party’s application for a judicial review of Mpshe’s decision.
A much “richer vein” than the tapes themselves, Selfe said, might be the reduced record of the decision – the second category of materials the NPA has been ordered to release.
This consists of minutes of internal discussions the NPA had in coming to its decision, as well as memoranda, documents and representations by interested parties.
Only confidential representations the Zuma team made in arguing for the case to be scrapped will be withheld – a decision that rests with retired judge Noel Hurt.
“If we can prove, or if the papers demonstrate, there was a very good prima facie case, and then that prosecution was suddenly stopped, then clearly what we’ve got is a much better case on review,” said Selfe.
The party will ask a judge to set Mpshe’s decision aside on the basis that it was irrational and unlawful, on a balance of probabilities, potentially paving the way for the charges against Zuma to be revived.
One thing we know from Mpshe’s own words is that the prosecution team opposed dropping the charges.
Reports at the time suggested bitter internal battles raged over the question – and minutes of these meetings should form part of the material to be released. The minutes may show that Mpshe made the call in the face of fierce resistance.
Mpshe denied at the time that the NPA had been “deeply divided” on the issue.
“All members of the senior management and the prosecution team participated in this discussion, and ultimately I take full responsibility for the decision I make,” Mpshe said when announcing the move.
The NPA will now have to provide the record of these discussions, which could prove more revealing than the tapes themselves.
The NPA also interviewed Ngcuka after listening to the tapes, and his explanation of the conversations should be recorded in the documents.
He said the day after Mpshe’s announcement he had never been part of a conspiracy against Zuma and, when he was interviewed by the NPA, it had failed to provide him with transcripts of his supposed conversations with McCarthy.
“Selective ‘excerpts’ had the potential to distort context,” Ngcuka said.
“Hopefully, there will in the future be an opportunity to have full access to independently authenticated recordings and a full transcript of the recordings. Should such occasion arise, I will respond fully to assertions regarding the conversations and their import.”
That day may soon be at hand, but Selfe said the DA team was unlikely to call any witnesses in its review application, which would probably rely only on the papers.
In the meantime, the party will probably know by tomorrow whether it will be able to make the material public as soon as it receives it.