02/09/2012. Acting National Director of Public Prosecutions Nomgcobo Jiba adress the media on the withdrawal of murder charges against the 270 Lonmin workers in Pretoria yesterday. Picture: Thobile Mathonsi

Johannesburg - The battle for the so-called “spy tapes” took another turn on Tuesday, when the DA called for acting national prosecutions boss Nomgcobo Jiba to be found in contempt of court for failing to hand them over.

On Thursday was the deadline for responses to the DA’s arguments in the matter.

President Jacob Zuma’s legal team and the National Prosecuting Authority (NPA) failed to submit their heads of argument by close of business on Tuesday, after the DA served both respondents and the Pretoria High Court with its arguments on January 21.

In its papers, the DA rejects the argument of Zuma’s lawyer, Michael Hulley, that submissions made by Zuma are confidential, and says Jiba will have to prove she was not in contempt of court in failing to hand over the tapes.

The DA also wants the court to order Jiba to deliver the “memoranda, reports, minutes and notes” to its own and Zuma’s attorneys, and promises that save for these two legal teams, no other parties will at this stage be able to access the documents.

Last March, the Supreme Court of Appeal (SCA) gave the NPA 14 days to produce the documents that were before then prosecutions head Mokotedi Mpshe when he made the decision to drop corruption charges against Zuma, after ruling that Mpshe’s decision could be reviewed by the courts.

The “reduced record” to be produced would exclude confidential submissions made on Zuma’s behalf and the NPA’s responses.

In April 2009, Mpshe said the NPA was dropping charges against Zuma on the basis that they were politically motivated, after playing excerpts from the recordings of intercepted conversations.

The full transcripts of these “spy tapes” have never been made public.

But in April last year, instead of producing them, the NPA handed the tapes to Hulley, who now says the transcripts are confidential.

Heads of argument by the DA’s legal team reject the NPA’s contention that “the internal memoranda, reports, minutes and notes are covered” by an alleged confidentiality undertaking given to Zuma.

“The NPA was able to make transcripts of the relevant ‘portions’ of the recordings… and the NIA (National Intelligence Agency) has declassified these transcripts as they are not directly relevant to its own investigation,” say the DA’s lawyers.

“The only remaining issue is whether (Zuma) may object to the disclosure of the transcripts. As a matter of fact, (Zuma’s) legal team has not objected to the disclosure of the recordings and transcripts.”

The papers also hold that it will be difficult for Jiba to show that her non-compliance with the SCA ruling was “not wilful and mala fide (in bad faith)”, and that she had permitted Zuma’s legal team to dictate to the NPA how long they needed to consider the transcripts.

Political Bureau