African National Congress (ANC) president Jacob Zuma will get a last chance next week to convince a court that potentially damaging evidence seized from him and his lawyer in 2005 should not form part of his corruption trial.
Zuma, his lawyer, Michael Hulley, and French arms company Thint will try to persuade the Constitutional Court that a majority ruling in the state’s favour by the Supreme Court of Appeal (SCA) in November last year was wrong.
Although the court must only rule on leave to appeal at this stage, the written submissions by Zuma and the National Prosecuting Authority are comprehensive and speak to the merits of the SCA judgement.
SCA judges Robert Nugent, Nathan Ponnan and Dunstan Mlambo upheld the NPA’s appeal against the Durban High Court’s decision of 2006, which declared the August 2005 raids on the properties of Zuma, Hulley and Thint invalid and set aside the search warrants.
They ruled that 93Â 000 pages of evidence seized during the raids may form part of the NPA’s case, which is scheduled to start on August 4 in the Pietermaritzburg High Court.
Zuma is facing 16 counts of fraud, corruption, money laundering and racketeering.
In their written heads of argument filed at the Constitutional Court, Zuma and Hulley argue that the NPA infringed their constitutional rights to privacy, dignity, property and, in Zuma’s case, to a fair trial.
To convince the court that Zuma could not possibly receive a fair trial, his counsel, Kemp J Kemp, will primarily rely on the Scorpions’ search of Hulley’s Durban office.
During the 2005 raids, the Scorpions took from Hulley’s office two boxes of financial records that were given to Hulley by Zuma’s financial adviser, Schabir Shaik. Zuma maintains that the NPA was determined to find his defence notes and even alleges that it is impossible for him and Hulley to prepare for his upcoming trial because his (Zuma’s) notes ”may be susceptible to search and seizure operations”.
The state will argue that it is not in the interests of justice for the Constitutional Court to grant Zuma, Hulley and Thint leave to appeal. They claim that the trial court will be adequately suited to decide on the admissibility of the documents seized. Using the ”newly seized” documents, the state alleges that Zuma received more than R4-million from Shaik between 1995 and June 2005.
Zuma and Thint have also launched a last-ditch effort in Mauritius — and in the Constitutional Court — to keep the NPA from getting its hands on the originals of 14 documents seized during raids in Mauritius in 2001.
Copies of the documents were used in Shaik’s trial. They include Thint executive Alain Thétard’s 2000 diary, which records his planned meeting with Zuma and Shaik on March 11, when, according to the prosecution, Zuma solicited a R500 000-a-year bribe from Thint. Shaik’s lawyers agreed to accept copies, but Zuma has made no such concession and the NPA has applied to the Mauritian High Court to release the originals.
Zuma’s bid to prevent this happening was rejected unanimously in the SCA, which found he had no locus standi to intervene in the state’s process of gathering evidence.
His lawyers will try to convince the Constitutional Court that this violates his right to access to the courts and his right to a fair trial — which would mean overturning long-established law regarding who can rightfully claim to have an interest in legal proceedings.
In Mauritius, where Zuma has applied to join Thint’s effort to block the release of the original documents, his case is even more tentative. His problems of legal standing are even more acute in this case and he has resorted to claiming that the case against him is a political vendetta.
Zuma has advanced no new evidence to bolster this claim, but has recycled his complaints about former NPA boss Bulelani Ngcuka and his suspicions of collusion between President Thabo Mbeki and the NPA in reaching the decision to charge him.
The Mauritian Attorney General is expected to file affidavits shortly opposing Zuma’s bid.