Zuma’s advocate Kemp J. Kemp must have found it pretty tough going in Bloemfontein on Friday. Anyone watching Judges Nathan Ponnan and Mohamed Navsa in action will tell you that they are very fierce indeed. In fact, Navsa could probably walk away with the title of “Toughest Judge to Face” in the SA edition of MasterJudge, should MNET ever be wise enough to create the franchise. But it still must have been very galling for Kemp to eventually concede that on the facts, he had no argument to make. As City Press quoted the exchange Navsa put it “When asked what the factual foundation is for that, you could not give it to us…in effect you’re conceding the appeal”. Kemp replied with “That appears to be the case”.

After that, it was agreed that when the final order is made, the DA will get these recordings. There is still a process to be followed on the other aspects of this case, relating to various documents in possession of the National Prosecuting Authority.

It’s important at this point to just step back, and examine what we’re actually talking about. In 2009 then acting head of the NPA, Advocate Mokotedi Mpshe, announced he was withdrawing corruption charges against Zuma. These charges stemmed from the conviction of Schabir Shaik for paying bribes to Zuma. The basis for Mpshe’s decision was a recording of a conversation between former NPA head Bulelani Ngucka and then Scorpions’ boss Leonard McCarthy. In that conversation, Ngucka was discussing with McCarthy the time at which it would be most embarrassing to Zuma to charge him with corruption… A part of the transcript of that conversation was then made public. But the full recording never was.

The DA then went to court to challenge the Mpshe’s decision to withdraw the charges. To do that, it needs what’s called the “record of decision”, the process followed and information used by the NPA to arrive at that conclusion. It has argued that these recordings are part of that record. However, the existence of the recordings (that were held at what was called the National Intelligence Agency at the time) was made known to the NPA by Zuma’s attorney Michael Hulley. Hulley has never explained who told him they existed, but various theories have abounded (incidentally, it’s never been explained how Richard Mdluli has such high-level protection – Ed). Zuma then said that these recordings formed part of submissions he made to the NPA in a bid to have the charges withdrawn. As these submissions were given on the basis that they would remain confidential, the tapes should not be released.

(As an aside, this is surely an aspect of the NPA act that needs to be revisited: imagine if a drugs dealer were to be charged, and was then able to convince the NPA not to charge him on the basis of information that could not be made public. Imagine if that information was that he had paid a bribe to the NPA for example. The opportunity for mischief here is huge)

Five and a half years after the NPA’s original decision, it appears the DA is now going to get the recordings.

But then this raises a whole series of questions on its own. The first of course, is why did Zuma fight so long and so incredibly hard, and then just concede? The NPA had been a part of this case for some time, and then eventually said it would abide by the final decision of the SCA. It was only Zuma who indicated that he would oppose the publication of these tapes in the SCA.

That has never made logical sense. The tapes were supposedly to the benefit of Zuma; it was them that justified the decision to withdraw the charges against him because of the political conspiracy. In the ideal world, he should want them released, because then we would all understand what happened, agree with the decision and go in with life. The fact he did not want them released would immediately indicate that there is some problem with the recordings. Perhaps they never truly justified the decision to withdraw the charges? Perhaps their release would demonstrate exactly how much political pressure was put on Mpshe (who now has a peripatetic existence as an Acting Judge in various courts, but has yet to face a Judicial Service Commission interview). Perhaps the release of these tapes could somehow reveal who gave them to Zuma in the first place. Which might make someone in the intelligence services squirm.

However, cynics will also wonder if this was all just a play for time, lots of time, actually. We all know about how the famous “Stalingrad” legal strategy of delay, delay, delay has been brought by Zuma into government. Perhaps the only aim here has actually been to keep the DA and other assorted opponents busy with something. In other words, when these recordings are finally played, if ever, we may all be rather disappointed. We may all find that actually there is nothing very much on them, and that this was all a red herring. It would be exactly the kind of move that someone schooled as an intelligence chief for a liberation movement might pull. Especially one schooled in fighting the misinformation campaigns run by the Apartheid government.

There is another, almost more cynical theory. Perhaps, if we take a look at recent developments at the Silverton headquarters of the NPA, and Zuma’s announcement that he’s considering suspending its head Mxolisi Nxasana, maybe he now believes he has, or is about to have, tight enough control of the NPA to ensure that he is not going to be charged almost whatever happens.

In other words, this concession by Zuma’s lawyers might just be a sign of a change in tactics. We’ve moved from the “Zuma Spy Tapes defence” to another tactic. But that might be too cynical, even for us.

Either way, it does now appear that we are going to get a little more light on what actually happened within the NPA. It also means that the DA is a step closer to actually getting the NPA to reverse this decision. But, considering how our legal system works, Zuma probably has at least four and a half years left before he needs to worry about that. DM

Photo: Jacob Zuma speaks at news conference in Johannesburg May 9, 2006. REUTERS/Siphiwe Sibeko.