Scorpions 'misled' judge, says court

Search-and-seizure raids by the Scorpions at the offices of Jacob Zuma’s former attorney Julekha Mahomed were ruled illegal by the Johannesburg High Court on Friday.

Judge Ismail Hussein found that the search warrants were obtained and executed unlawfully. They were set aside.

All documents, files and other objects seized from her home and office on August 18 must be returned.

Photographs taken and a copy of her computer’s hard drive must be given back and the National Directorate of Public Prosecutions (NDPP) must pay the costs of the application.

Mahomed had brought an urgent application on the matter.

In his judgement, Hussein said he was not convinced that the NDPP disclosed all material facts when it applied for the search warrants on August 12.

In its application, it referred to Mahomed as “Zuma’s personal legal assistant”, but it failed to bring it to Judge President Bernard Ngoepe’s attention that she was a practising attorney of the court.

He said full disclosure of material facts is especially essential in an ex parte application for a search warrant, where the person against whom the warrant is sought is not present to put his or her case.

It is common cause that the NDPP knew that Mahomed was an attorney.
Despite this, it merely described her as a “legal assistant”. Nowhere in its affidavit did it state that she was an attorney.

Hussein said according to the affidavit there were two entities involved in the search—Julekha Mahomed and J Mahomed Attorneys. No link between the two was established.

‘He was misled’

He said the NDPP conceded it did not alert Ngoepe, who granted the search warrants, that Mahomed was an attorney. But its defence was that it was an unintentional mistake, that the judge president was aware that Mahomed was an attorney and that she did not suffer any prejudice.

Hussein said the judge president was “conveniently” steered away from the fact that an attorney’s office and house would be searched.

“He was misled,” he concluded.

It is imperative that attorney-client privilege be kept in mind when applying for a search warrant of that nature.

Hussein said privilege is a right and an important principle to the execution of law practice in the country.

“Attorney-client privilege is firmly entrenched in South African law and an important principle on which the legal system rests.”

In the past, convictions have been set aside due to privilege being violated.

If it is allowed that privilege be violated, it will have a negative impact on the fair trial of an accused.

Hussein said the broad terms of the warrants were not offensive or a breach of constitutional rights. The NDPP, however, failed to justify the broadness of the terms in its original application for the warrants.

The judge president was asked to grant 21 search warrants on the same terms—a case of “one size fits all”.

“A warrant should be drafted along specific needs and objectives, not just taken from stock.”

The NDPP relied on the fact of Mahomed’s association with Zuma, and the inferences drawn from that, in obtaining such a widely termed warrant.

The judge president’s attention was also not drawn to alternative ways of obtaining the information searched.

Attorney-client privilege

Hussein said the warrants were initially also executed in a way not compliant with the Act ruling the actions of the NDPP. Investigators did not alert Mahomed to her right to claim attorney-client privilege in respect of documents seized.

Only when she claimed privilege halfway through the raid on her office were the documents sealed for safe-keeping by the court.

Hussein accused the NDPP of contemplating a possible privilege claim, because it did approach the registrar of the high court to make someone available to accept sealed documents.

When someone was, however, not available, the Scorpions did not bother to inform Mahomed of her rights.

The correct procedure, he said, would have been to inform her of her rights before commencing the raid.

Hussein said in view of these facts, he did not have a choice but to set the warrants aside and declare the searches unlawful.

He said the NDPP should have a clean slate to continue with its investigations into the Zuma case and added that he was not convinced that the NDPP acted “vexatiously”.

When she left the court, Mahomed declined to comment on the judgement.

She merely said: “The judge has spoken.”—Sapa

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