Jacob Zuma’s lawyer on Wednesday rejected the state’s invitation to allow the Pietermaritzburg High Court to decide whether documents taken in search-and-seizure raids were admissible as evidence.
Advocate Kemp J Kemp told Judge Herbert Msimang that he would not be ”accepting my learned friend’s offer”.
Kemp’s statement was made shortly after Advocate Nirmal Singh told the court that the trial could not continue until appeals against the raids, carried out by the Scorpions last year, had been resolved.
”It is my submission it [the state] is in contempt of a court order,” said advocate Nirmal Singh, who together with advocate Kessie Naidu, represents Zuma’s co-accused, French arms company Thint.
It emerged earlier that a 500-page KPMG forensic report contained documents taken in search-and-seizure raids from the former deputy president’s homes and the offices of his lawyer last August. The state had been ordered to return the documents.
Two of the raids were declared unlawful whereas the raid against Thint was declared lawful.
The unlawfulness of the raids is being appealed and these challenges were cited as one of the reasons the state needs a postponement.
Singh said the fact that the National Prosecuting Authority had handed the documents to a third party, KPMG, was ”double contempt”.
”The state acted unlawfully. That is the real cause of the delay,” said Singh.
Naidu said if the state applies for an adjournment, how can it expect the defence to give an indication of when they will be ready, when they have no final indictment.
”This is putting the trailer before the bus,” said Naidu. The state earlier said it will have a final indictment ready by October 15.
Naidu said: ”How can the state give an indictment based on matters that will be decided in the Supreme Court of Appeal [SCA]?”
He was referring to the appeal by Zuma’s financial adviser Schabir Shaik against his 15-year jail sentence for corruption and fraud.
The charges against Zuma and Thint emanate from the judgement delivered in Shaik’s trial.
Naidu argued that the SCA would also be giving a definition of corruption.
He said that the current case would be affected by the SCA’s ruling on the so-called encrypted fax and that it could not proceed.
The fax detailed a meeting at which Shaik allegedly negotiated a R500 000-a-year bribe for Zuma from Thomson-CSF (now Thint).
This was allegedly in exchange for protection from investigations into South Africa’s multibillion-rand arms deal.
The state has contended that the appeals against the search-and-seizure raids were the reason for the delay and its primary reason for seeking a postponement.
Kemp had earlier contended that the decision to prosecute Zuma was unconstitutional and illegal. He asserted that, in terms of the Constitution, the National Prosecuting Authority had failed to inform Zuma that it had reviewed its earlier decision not to charge him.
Kemp said that when National Director of Public Prosecutions (NDPP) head Vusi Pikoli announced his intention to review the case, he was constitutionally obliged to allow Zuma to make representations.
He said Zuma had not been given that opportunity. ”It is quite clear that it was done contrary to the law. We say it was unconstitutional,” said Kemp.
In response, advocate Wim Trengove SC, appearing for the state, pointed out that the legislation Kemp used in his argument only applied when the NDPP overruled a subordinate director in the National Prosecuting Authority.
Msimang asked why the case had been transferred to the Pietermaritzburg High Court without an indictment. State prosecutor Billy Downer said the state had not wanted the matter transferred there and would have preferred to have obtained a postponement in the Durban Magistrate’s Court.
”The state’s proposal was resisted,” said Downer. He said an agreement was reached with Zuma’s defence team that the matter would go to the high court. This with the understanding that the state could continue its investigations and that the indictment would be amended.
Kemp shook his head as Downer explained the reasons for the case reaching the Pietermaritzburg High Court without a proper indictment. — Sapa