The Supreme Court of Appeal reserved judgement on Monday in an appeal about the validity of search-and-seizure warrants served on a former attorney of African National Congress deputy president Jacob Zuma.
The counsel for the state, Wim Trengove, conceded that the warrants against Johannesburg-based attorney Julie Mahomed were not justified. Notwithstanding this, he asked the court for a preservation order of all seized material in case they are needed in possible future court proceedings against Zuma.
Earlier, the Johannesburg High Court found that the warrants which the National Prosecuting Authority had applied for were unlawful and set them aside.
Trengove asked five appeal judges to take into account ”other relevant aspects such as issues of public interest” and not only the validity of the warrants. He said the Constitution requires that a balance should be struck between the rights of Mahomed and the public interest.
Trengove submitted the state was thus not really asking for ”indulgence” for an unlawful act.
He also argued that search-and-seizure operations play an important role in effective crime fighting, which is in the public interest. ”In all these interests … a preservation order should be granted.”
Arguing about the possible options for a preservation order, Trengove submitted that first prize would be that the original documents be sealed and locked away. ”At least copies should be made if [the court] saw a good reason she [Mahomed] could have them back.”
The state submitted that no privileged information or ”privacy” would be breached if the seized material remained sealed and locked away by the court.
Mahomed’s legal counsel, Neil Tuchten, submitted that an ”extensive seizure” took place and documents that should not have been seized were taken. He asked that no preservation order be made.
He also submitted the court should not encourage a tendency on the part of the state to apply for extravagant warrants. Tuchten submitted this was wrong and ”should not be allowed” as it gives the state a second change later in litigation to decide whether evidence should be used.
He submitted that the public did have an interest in the fight against crime, but ”it must not be an interest that trumps all other rights”.
Legal battle
In the legal battle between Zuma and the National Prosecuting Authority (NPA), the state will on consecutive days argue in three search-and-seizure appeal hearings related to investigations against Zuma.
The NPA will try to secure access to about 90 000 documents seized during raids in August 2005 at properties of Zuma, his attorneys and French arms company Thint. The seizures were to secure evidence for possible criminal charges against Zuma and Thint, which were pending at the time.
About 250 members of the elite crime-fighting unit of the NPA — the Scorpions — took part in the raids on homes and offices, mainly in KwaZulu-Natal and Gauteng.
The appeal hearings continue despite a Pietermaritzburg High Court judgement that had struck the state’s ”pending” case against Zuma off the roll.
Five search-and-seizure warrants served on Zuma and his current attorney, Michael Hulley, which were declared invalid and unlawful in the Durban High Court, will be argued on Tuesday. In this case, like in the Mahomed matter, the state was ordered to return all items seized and removed from the premises of Zuma and the two attorneys.
On Wednesday, Thint will appeal a Pretoria High Court judgement in favour of the state. The company’s Pretoria office and the home of chief executive Pierre Moynot were searched.
The same appeal judges, a full panel of five, will sit in all three hearings. — Sapa