NPA finally wins appeal

After a string of legal setbacks, the National Prosecuting Authority (NPA) is facing the opening salvo of the Jacob Zuma corruption trial on July 31 with a success under its belt.

The Pretoria High Court this week upheld the legality of the search and seizure operations carried out at the premises of Thint (formerly Thompson CSF), the French defence company that is a co-accused with Zuma.

The raids were part of a massive operation that saw countrywide raids on the homes and offices of Zuma and his associates on August 18 last year.

Three of the main searches—against Zuma, his attorney Michael Hulley and his former attorney Julie Mahomed—have been challenged in court and ruled illegal.

The NPA has lodged appeals against these rulings.
The latest finding by Judge Ben du Plessis more or less contradicts those in the Mahomed and Zuma cases, highlighting the need for final adjudication in the Appeal Court or even the Constitutional Court.

While the facts in each case are slightly different they all deal with the tension between the right to privacy and the right of the state to intrude on that privacy, via search and seizure operations, in the interests of criminal investigation.

In both the Zuma and Mohamed cases the issue of legal privilege (the confidentiality that protects legal consultations between a lawyer and his client) were central to ruling the searches out of order.

The NPA Act, under which the raids were conducted, makes provision for documents claimed as privileged to be sealed and delivered to the care of the court while a decision is made as to whether the privilege is valid.

In the earlier cases judges found that search warrants should have explicitly mentioned the right to claim such privilege.

In a robust judgement, Du Plessis disagreed that this was necessary in the circumstances of the Thint case, where Thint had legal representatives who were well aware of their client’s rights under the law. He also dismissed Thint’s claims that the search warrants were invalid because of being couched in terms that were too broad.

Previous Appeal Court rulings have held that the Act does not permit a “fishing expedition”: both the charges against the accused and kinds of documents or items being sought must be clearly defined.

Warrants that were carbon copies of those in the Thint case were overturned on these grounds in regard to the Zuma searches.

Du Plessis, however, found that just because a warrant was wide, it was not necessarily out of order, providing it was restricted to items that might have a bearing on the investigation.

Thint has indicated it intends appealing the ruling, a fact that is likely to be welcomed by the NPA, because it bolsters its own case for seeking a postponement of the Zuma corruption case.

The NPA has already indicated it intends to ask for a postponement on July 31, pending both the appeal process with regard to all the documents seized, and the outcome of Schabir Shaik’s appeal against his triple conviction for corruption and fraud.

Shaik’s matter is due to be argued in Bloemfontein from August 21 to 25.

Zuma’s lawyers have indicated they will oppose any delay and are likely to launch a bid to have the charges against him set aside.

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