The state’s attempts to obtain documents from Mauritius infringed African National Congress president Jacob Zuma’s right to a fair trial, the Constitutional Court heard on Wednesday.
Zuma’s advocate, Kemp J Kemp, said that allowing the documents from Mauritius to be ”imported” would ”negate” the Zuma legal team’s ability to challenge the documents in court.
Kemp said that if the letter of request authorised by Judge Phillip Levensohn in April 2007 was allowed to stand, then ”the evidence cannot be challenged”.
Kemp said: ”We want someone to testify about those documents so that we can cross-examine them.”
Levensohn authorised the letter of request in terms of section 2(2) of the International Cooperation in Criminal (ICC) Matters Act.
Kemp argued on Wednesday that the National Prosecuting Authority (NPA) was not entitled to use that section of the Act to obtain the documents.
The documents include the 2000 diary of Alain Thetard, the former chief executive of Thales International’s South African subsidiary, Thint.
It details a meeting in March 2000 between him, Zuma and convicted Durban businessman Schabir Shaik, where the NPA alleges that an agreement on a R500 000-a-year bribe for Zuma was reached.
Kemp contended that the state did not need the documents for investigative purposes as it already had copies, which were ”brought here [to South Africa] in an improper way”.
Judge Hilary Squires accepted copies of the documents as evidence in the case where he convicted Shaik.
Justice Kate O’Regan questioned the constitutional issues raised in seeking to have the letter of request set aside.
”It’s not immediately clear to me what the constitutional issue is to exclude these documents,” she said.
Kemp replied that the NPA had not complied with the terms and conditions of the ICC Act and the letter should be declared invalid.
Thint’s advocate, Peter Hodes, also argued that the state had failed to comply with section 2(2) of the ICC Act.
Searches and seizures
Meanwhile, Zuma had two months to ”burn” documents seized in raids if he had wanted to hide them from the court, the court also heard.
”The searches and seizures took place on August 18. We had two months to burn things,” said Kemp J Kemp in his replying argument.
Kemp said Zuma was not attempting to keep documents that could implicate him in his forthcoming corruption trial out of court by challenging the validity of the search-and-seizure warrants used to secure them.
”It is not correct that this was to keep the documents out. There are other tactical ways,” he said.
He said they were told on June 20 2005 that Zuma was going to be charged, nine days before he was actually charged for the first time.
Zuma, his attorney Michael Hulley and Thint are challenging the validity of the search warrants, which yielded 93 000 documents from 22 searches carried out on that day.
They argue the provisions of the warrants were too broad and vague, did not delineate what could and could not be taken, and so violated their constitutional right to privacy, dignity and a fair trial, and violated lawyer/client privilege by potentially gaining access to their defence notes and other confidential discussions about the trial.
Kemp said: ”We would like to know if, from now on until we lead up to the trial, and we ask Mr Zuma to take notes, they are safe.
”We want to know because it may affect our preparation. Until then I must tell Mr Zuma to try and remember things without notes that would be subject to seizure.”
He said the warrants were so broad that ”even a Post Office savings book that he had in the 1960s could be seized.”
If they had wanted to keep the documents out of court, they could have applied to the Pietermaritzburg High Court on the first day of Zuma’s trial on August 4.
”If we wanted to exclude the documents, one way to do that, is to say nothing, absolutely nothing, and spring it on them on the first day of the trial,” Kemp said.
”Can you imagine the delays?”
He also pointed out that by the time the trial starts on August 4, the statutory period available for appealing against the warrants would have expired.
Judgement on the validity of the warrants was reserved. — Sapa