Bloemfontein — The Supreme Court of Appeal has no facts before it to decide whether the so-called spy tapes are part of a confidential representation by President Jacob Zuma to the NPA, SCA judges said on Friday.
"Put something before us that is proof that the tapes would reveal the representations," SCA president Judge Lex Mpati told Zuma's counsel, Kemp J Kemp.
The court is hearing an appeal by Zuma against a High Court in Pretoria order that the National Prosecuting Authority hand over a copy of the so-called spy tapes to the Democratic Alliance.
The tapes, transcripts, and other documents relate to a decision the NPA took in 2009 to drop corruption charges against Zuma.
On Friday, Judge Fritz Brand asked Kemp: "If the reader of the tapes does not know your representations, if he reads the transcript, would he know what your representations would be?"
Kemp replied it would be difficult as the independent source, the tapes, could be a poison tree or fruit.
"I do not know where the tree is or the fruit," replied Brand.
The judges bombarded Kemp with questions challenging him to show by facts that the tapes were part of the confidential representations.
They argued the tapes were already in existence before Zuma made his representations.
Kemp kept returning to his argument that if any document formed part of the representations that document then formed part of the confidential representations.
Later, replying to a question, Kemp agreed he had to be able to make an argument based on facts.
He eventually conceded that his argument, that the tapes as a whole possibly formed part of the confidential representations, was not based on fact.
This was after the judges indicated that nobody, not the NPA, the DA, or Zuma, had supplied any evidence that the tapes could be part of the confidential representations.
Sean Rosenberg, for the DA, agreed there was no substantial argument in Zuma's appeal.
The parties agreed in principle to a proposal formulated by the court in an effort to resolve the matter.
The lawyers agreed in principle to a third party, a senior legal mind, to be asked to judge what notes and documents, memorandums and transcripts formed part of the confidential representations.
Those would then be left out in the bundle of documents to be handed to the DA, as the SCA had decided earlier.
The parties have until 4pm Friday next week, August 22, to deliver an agreement to the SCA to be made a court order.
Rosenberg said they would agree in principle to such an agreement. If the parties could not come to an agreement the high court's decision on appeal would stand.
"If we cannot come to an agreement the original order stands," Kemp also submitted in reply.
Judgement was reserved.