Michael Hulley, Zuma's lawyer, yesterday conceded for the first time that he was in possession of the 2009 spy tapes and transcripts, but boldly stated that he would not part with them.

The existence and authenticity of the tapes have been in question since April 2009, when the NPA claimed that it had listened to them. Many, including the DA, have doubted the existence of the tapes or, if they exist, their veracity.

In March, the Supreme Court of Appeal ruled that the National Prosecuting Authority must release reduced transcripts of the tapes to the DA.

But yesterday, citing a 2009 confidentiality agreement between Zuma and the NPA, Hulley said the argument for not providing the transcripts was simple.

"When we made the representations we sought an undertaking from the NPA to say we would like to make certain portions in confidence. There was an acceptance, with nothing from the SCA frowning on this.

"There was no . SCA ruling to say it was ill-advised for the NPA to entertain such representations," he said.

In April 2009, the then acting national director of public prosecutions, Mokotedi Mpshe, dropped corruption charges relating to bribes Zuma allegedly received after Hulley made representations to the NPA. This paved the way for Zuma to become president.

Hulley labelled insinuations that the tapes did not exist as "preposterous".

He said: "This would imply terrible fraud that the NPA engaged in with Zuma and all the lawyers. Coupled with the fact that the NPA engaged with various government agencies, this would make the [NPA] complicit to fraud."

He argued that the involvement of two government agencies, the National Intelligence Agency and the Scorpions, plus a lack of denial by those mentioned in the tapes, demonstrated their authenticity.

In its case in the appeal court, the DA argued that the spy tapes and the controversy around the way in which the charges against Zuma were subsequently dropped could be put to rest if the matter were deliberated in court.

The tapes allegedly consist of recordings of former Scorpions boss Leonard McCarthy and former director of public prosecutions Bulelani Ngcuka discussing the charging of Zuma with fraud and corruption.

But, said Hulley: "In our letter to the NPA we upheld our contention that this remains confidential."

In an affidavit filed last month, acting head of the NPA Nomgcobo Jiba said Hulley had had the tapes since April and the NPA could not be held in contempt of court for not giving them to the DA.

On Friday, Hulley filed a notice stating that Zuma would not file an affidavit opposing the DA's application. Instead, he would argue the merits of the application in court.

"The only issue that shall be addressed is whether the court order . requires the production of the material sought in this application . this is simply an interpretation of the order."

DA MP James Selfe said yesterday that the party would discuss with its lawyers today what to do next.

"How can [the tapes] possibly be the property of the president's attorney? How can he claim ownership of the tapes if he has no legal right to them?" he said.

Selfe said the agreement referred to by Hulley was never the subject of the pleadings.

"What they refer to is that, during the SCA hearing, when we argued the issue of the reduced records, advocate Kemp J Kemp, who represented Zuma, said he wanted to see everything before anything was released to see if it referred to the representations made to discontinue the prosecution.

"This is not a confidentiality agreement. If it was, it would have been the very first thing advanced as a line of argument," Selfe said.

Wits Centre for Applied Legal Studies head Bonita Meyersfeld said: "Zuma's camp will use every possible means to delay the release of the information - be it through the courts or politically."

Zuma had until now operated within the law, Meyersfeld said.

"This is not about a country run by demi-gods. It is about power and its natural consequences. If the allegations against Zuma are true. it is unacceptable that he is in government, but the processes under way must be followed."