The Supreme Court of Appeal reserved judgement on Tuesday in the dispute between Jacob Zuma and the National Prosecuting Authority over warrants used to seize documents from the former deputy president.
Zuma’s lawyer, Kemp J Kemp said the search warrants were ”overbroad”, invasive of privacy and unnecessary.
Kemp argued that the warrants were riddled with ”many defects”.
”What must be considered is the cumulative effect of these.”
He said there was also no time limit for documents that could be seized under the warrants.
After the day’s proceedings Zuma made his way down the court steps and waved to a group of cheering supporters. He was whisked away by a convoy of luxury 4×4 vehicles.
He made no comment to reporters.
The Scorpions raided four of Zuma’s homes and offices and his attorney Michael Hulley’s Durban office, seizing about 93 000 pages of documents in dawn raids on August 18 2005.
Zuma and Hulley contested the raids in the Durban High Court, which declared five of the search warrants unlawful and ordered the documents seized to be returned.
Kemp asked five appeal judges on Tuesday to uphold the high court’s ruling for the documents to be returned. He, however, struggled to make headway as the judges frequently interrupted him and picked at his argument for clarification.
He conceded that nothing taken from Zuma’s premises was in conflict with the search-and-seizure warrants.
He replied ”yes” when asked by Judge Robert Nugent whether ”there is no contention by you that anything was taken in conflict with the warrants? Your contention is that the warrant is invalid?”
Kemp again agreed when asked by Judge Ian Farlam whether he was contending that the warrants were not so much a question of ”overbreadth as of vagueness and unintelligibility”.
Farlam asked Kemp whether he was not putting too narrow a meaning on seizing documents that ”might have a bearing on the investigation”, as was stated in the warrants.
‘High risk’
Earlier, state counsel Wim Trengove submitted that search warrants, and not subpoenas, were necessary to obtain documents from Zuma and Hulley. Trengove argued that the lesser means of a subpoena would cause a ”high risk” of evidence being concealed or destroyed.
”There’s always a very real risk that the respondent would not be honest and open and frank.”
Trengove said the Durban High Court — which had declared the warrants unlawful — had used an ”unduly high” test to determine whether they were necessary.
”It would almost never be possible for the prosecution to show that there’s no way to obtain the evidence by lesser means.”
Concerning the search of Hulley’s office, Trengove said Hulley had been cooperative and had pointed out the two sealed boxes investigators were interested in.
They apparently contained records Durban businessman Schabir Shaik had kept in his capacity as Zuma’s financial adviser.
Trengove said Hulley never claimed privilege on the documents, only doing so the next day in a letter sent to the NPA.
Trengove also responded to contentions made by Zuma’s lawyers that having enough evidence to convict Shaik was enough ”prima facie” evidence to convict Zuma.
He also disputed that the intention behind the seizure of the financial records was to get behind Zuma’s defence strategy in any future corruption trial.
Trengove asked the court for an order to keep the seized evidence sealed and locked in case Zuma was in fact prosecuted for corruption.
The outcome of the appeal would determine whether or not the National Prosecuting Authority will charge Zuma and Thint for corruption and/or fraud relating to the multibillion-rand arms deal.
On Wednesday Thint will appeal a high court judgment dismissing with costs an application attacking the validity of a Scorpions search of their Pretoria offices, also on August 18 2005. — Sapa