The so-called “spy tapes” came under discussion in the second session of President Jacob Zuma and the National Prosecuting Authority’s (NPA's) application for leave to appeal the High Court ruling that the NPA’s discontinuation of charges against Zuma be set aside. 

These tapes refer to recorded telephone conversations used by the NPA and Zuma’s legal teams to help attribute an ulterior political motive to the NPA’s Leonard McCarthy’s desire to postpone Zuma’s indictment to after the ANC’s Polokwane conference in 2007.

Justice Navsa voiced concern that legal authorisation had only been obtained with regards to intercepting McCarthy’s telephone calls, while no such authorisation seems to exist for intercepting calls of people like Ronnie Kasrils and the NPA’s Billy Downer.

The appeal court judges also pointed out that they had difficulty establishing that McCarthy was really the driving force behind the decision to postpone, purely by looking at the content of the transcriptions.

Zuma and the NPA are asking for leave to appeal a judgement of the Gauteng North High Court last year, which ruled in favour of the Democratic Alliance (DA), setting aside the 2009 decision by the NPA’s former Director of Public Prosecutions Mokotedi Mpshe to discontinue the corruption case against Zuma, on the basis of irrationality. The application is being heard by a full bench of appeal judges.