President Jacob Zuma, right, and his lawyer, Michael Hulley. File picture: THE TIMES
President Jacob Zuma, right, and his lawyer, Michael Hulley. File picture: THE TIMES

President Jacob Zuma’s attorney, Michael Hulley, may avoid prosecution for being in possession of the so-called spy tapes as no one has challenged the legality of the recordings.

The tapes are recordings of telephone conversations between the boss of the now defunct Scorpions, Leonard McCarthy, and the former National Prosecuting Authority (NPA) head, Bulelani Ngcuka.

The conversations were perceived to have reflected political interference in the timing of the serving of an indictment on Zuma, who was facing corruption charges.

The issue of the spy tapes was again under the spotlight in the Supreme Court of Appeal (SCA) last week.

How or from whom Hulley obtained the recordings has never been revealed. The legality of the spy tapes has also never been challenged in a court of law.

Constitutional law expert Pierre de Vos said that Hulley should be prosecuted, but a certificate proving the validity of the recordings was required.

If the recordings were valid, it would have been illegal for anyone to pass them on to Hulley and illegal for the attorney to accept them.

Judge Mahomed Navsa said there were "heavy penalties" for contravention of the Regulation of Interception of Communications and Provision of Communication-Related Information Act, including those related to prohibition of disclosure.

Navsa said that a judge’s certificate — which would have indicated the breadth of the authorisation to record telephone conversations — was not made available to the appeal court or the High Court in Pretoria. Then deputy national director of public prosecutions Willie Hofmeyr said in an affidavit that the National Intelligence Agency informed the NPA that it was in possession of the intercepted recordings obtained during an investigation into the production and leaking of what was known as the Browse Mole intelligence report and that it was shown a copy of a certificate, signed by a judge, authorising interception of McCarthy’s cellphone.

In 2011, the DA said it was launching an urgent application under the Promotion of Access to Information Act for a copy of the intelligence inspector-general’s spy-tapes report. It is not clear what came of this.

DA federal executive chairman James Selfe said on Tuesday the party initially considered laying charges against Hulley, but thought it would be a distraction in its application for access to the recordings.

The NPA would not comment on whether Hulley could face prosecution.

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