Jacob Zuma’s legal team is set to launch an application to set aside corruption and fraud charges against him.
The bid to knock out the state’s case — based on the claim that the former deputy president’s right to a fair trial has been unfairly prejudiced — was mooted last year, but has now been set in motion, Zuma’s attorney Michael Hulley confirmed on Thursday.
Hulley said the application had been brought to a head by this week’s court ruling setting aside the search and seizure operations against Zuma in August.
In a blow to the Scorpions, Judge Noel Hurt ruled unlawful the raids carried out on Zuma’s various residences and workplaces, as well as those at Hulley’s office.
The latter case has particularly serious consequences, not only because it raises a potential claim of a breach of attorney-client privilege, but also because the documents seized at Hulley’s premises could be crucial to the state’s case.
According to the state, they consisted of Zuma’s financial records, previously held by Schabir Shaik and his companies but forwarded to Hulley after Shaik resigned as Zuma’s financial adviser after Shaik’s conviction last year.
These would not necessarily be subject to privilege, which is normally restricted to communication between attorney and client relating to the client’s defence.
It is unclear whether the ruling affects financial documentation seized during the Shaik investigation, but this information in any case extended only to October 2002. Shaik conceded during his trial that his payments on Zuma’s behalf continued up to last year.
At the very least, up-to-date financial information was considered vital for the investigation of fraud and income tax offences relating to Zuma’s parliamentary and Cabinet declarations of interest.
These were contemplated in addition to two main counts of corruption he faces flowing from his allegedly corrupt relationship with Shaik and his alleged attempt to solicit a bribe from defence company Thales.
Hulley said Zuma’s legal team would proceed with an application based on the alleged violation of Zuma’s constitutional rights without waiting for the outcome of an appeal. The state has indicated it intends appealing against Judge Hurt’s ruling, and Hulley confirmed that arrangements had been made with the state to expedite appeal proceedings so that the matter is decided before the start of Zuma’s corruption trial in July.
Judge Hurt’s judgement is contestable in a number of areas, but the Scorpions face an uphill battle because of the apparently careless and overly broad way in which the warrants were framed and executed, allowing the judge to rule against them on several grounds.
This appeal — and a similar appeal based on a Johanneburg High Court ruling setting aside raids on the same day at the premises of Zuma’s former attorney, Julie Mahomed — will be significant in defining the legal limits of searches under the National Prosecuting Authority Act.
Judge Hurt found that the legislation required the person requesting a search to satisfy the judge or magistrate that there is no reasonable prospect of obtaining the evidence by less disruptive or incursive means — such as by subpoena and interrogation.
This interpretation is likely to be challenged by the NPA, as is Judge Hurt’s finding that the Scorpions failed to meet this requirement in the affidavit submitted in support of the original search warrants.
However, Judge Hurt also found other less-contentious grounds for setting aside the warrants, notably a “catch-all” paragraph attached to each one, entitling the State to seize “any records” of “any nature” that “might have a bearing on the investigation”.
Judge Hurt found that, in the circumstances where Zuma had already been charged, this paragraph amounted to a request for authority to search for “anything that will help me in the prosecution”.
He found this catch-all to be “of breathtaking proportions” and in conflict with established legal decisions limiting such searches to more precisely defined targets.
However it is on the question of legal privilege that the Scorpions appear most exposed by the apparently cavalier approach adopted by their agents.
Hurt noted that at one point during the seizure operation Hulley had telephoned state advocate Anton Steynberg to ask whether the documents seized from his office could be sealed and lodged with the High Court until the lawfulness of the search had been determined. In a subsequent conversation with lead prosecutor Billy Downer, SC, he had also asked “what would happen if any documents were privileged”.
Downer claimed in an affidavit that this did not amount to a formal claim of privilege, which would have set in motion a procedure to put the seized documents aside under the protection of the court until a hearing could determine if they were covered by attorney-client privilege.
Judge Hurt roundly criticised the state’s failure to take proper precautions, which, he pointed out, might have jeopardised the entire prosecution.
He said the state had a duty to alert Hulley and his clients to the provisions for claiming privilege and allow them the opportunity to consult about whether to do so.
Smokin’ Jake’s fans claim weigh-in win
In boxing, they have a name for colossal non-events such as the one at the Johannesburg High Court this week — a technical draw, writes Fikile-Ntsikelelo Moya.
The champion leaves the ring with the belt around his waist, without subduing his opponent.
If the Johannesburg High Court had been Madison Square Garden, the bout between political heavyweight Jacob Zuma and a prosecution that accuses him of raping a 31-year-old family friend would have been given the bird.
Zuma, the Nkandla Bruiser whose crowd of supporters seemed to hail overwhelmingly from KwaZulu-Natal, took the first three rounds of the scheduled 15. But it was a hollow victory, and one that left the distinct impression that he is ducking the contest — perhaps in order to strengthen himself outside the ring.
The real damage may have been inflicted elsewhere — to the credibility of the fight game as a whole.
The case was originally set down for three weeks of five days each. But Zuma and his corner wanted a different judge and a different day in court.
First, he got the Judge President of the division, Bernard Ngoepe, to recuse himself for reasons the judge himself said were based not on law, but on the accused’s political status.
The judge said, in effect, that legal reasoning would be lost on Zuma and his supporters. He would step aside so that they would believe justice had not only be done, but manifestly seen to be done.
The judge’s decision is likely to have the reverse effect of suggesting that the judiciary is not immune from political pressures.
In round two, Zuma’s team was adamant that the trial could not go ahead on the days set down because the state had presented new evidence they needed time to study. According to Zuma’s lawyer, Michael Hulley, this included a psychologist’s report on the rape complainant’s state of mind.
And in round three, the defence team privately persuaded Judge Ngoepe that the next in line to try the case, Transvaal Deputy Judge President Jeremiah Shongwe, was unsuitable because he might be influenced by his relationship with Zuma in exile in Swaziland. Specifically, Zuma had had a child by Shongwe’s sister, Minah.
Again, questions have been asked about the propriety of discussions in chambers between the Judge President and the defence team of an accused.
On the streets of Johannesburg, the Bruiser told supporters the postponement gave him and other ANC supporters time to campaign for the party in the March 1 local elections. His main supporter, ANC Youth League president Fikile Mbalula, managed to make it all sound like a struggle of principle. “We don’t want anything swept under the carpet. We want a free and fair trial, as we would for any South African.”
Zuma and Mbalula gave the impression of having floored their opponents. But the real opponent, the 31-year-old rape complainant, has only been seen around the arena, not inside it — let alone in the ring.
The bobbing and weaving has begun. The muscles have been flexed. But the real fight starts on March 6.