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13 Mar 2008 07:42
African National Congress president Jacob Zuma’s attempt to have search-and-seizure raids as well as a letter requesting documents from Mauritius ruled invalid was set to enter a third day at the Constitutional Court in Johannesburg on Thursday.
Originally only two days were set aside for the court to hear an application to appeal a November 8 Supreme Court of Appeal ruling, but on Wednesday evening Chief Justice Puis Langa ordered that the court reconvene on Thursday to finish proceedings.
Earlier on Wednesday the court reserved judgement on the controversial June 2005 raids, which French arms manufacturer Thint had argued were issued by Transvaal Judge President Bernard Ngoepe without a case being made to Ngoepe.
Zuma’s advocate, Kemp J Kemp, said there was no affidavit with information on the investigation attached to the warrants.
Arguing for the state, Advocate Wim Trengove said the difference between interpretations of the search warrants used in the searches, by the state on the one hand and Zuma, arms company Thint and Zuma’s lawyer Michael Hulley on the other, was “extremely narrow”.
He said neither Section 29 of the National Prosecuting Authority Act nor the Constitution made provision for the attachment of an affidavit as suggested by Kemp.
“We are sure that we have a case, not merely a prima facie case, but a case with a reasonable prospect of conviction,” Trengove said, with Zuma sitting behind him in the front row of the public gallery.
Not entitled to challenge interpretation
While the searches had to be done in a dignified manner that respected privacy, the person being searched was not entitled to start challenging the state’s interpretation of the authority on the scene.
He was only entitled to be told on what authority it was being done and was entitled to have his questions answered.
“Of course that afternoon he [a person being searched] can go to his lawyer,” said Trengove.
He said the admissibility of the documents could also be decided at a trial.
The court heard that Hulley pointed out the boxes of financial records that Schabir Shaik’s attorneys sent him and which the searchers wanted.
Hulley did not object to the boxes being taken until much later.
Trengove said: “They all had the opportunity to point to privileged material, but they have not pointed to any.”
He said that Hulley had so far only engaged on a “theoretical debate” on the issue of client/attorney privilege.
“All lawyers know about privilege and have the right to invoke privilege,” said Trengove.
Trengove said the annexes on the warrant saying what was sought gave an indication of the type of investigation.
The court also heard that Zuma had two months to “burn” documents seized in the raids.
“The searches and seizures took place on 18 August. We had two months to burn things,” said Kemp in his replying argument.
Kemp said Zuma was not attempting to keep documents that could implicate him in his forthcoming corruption trial out of court by challenging the validity of the search-and-seizure warrants used to secure them.
“It is not correct that this was to keep the documents out.
There are other tactical ways,” he said.
He said they were told on June 20 2005 that Zuma was going to be charged, nine days before he was actually charged for the first time.
Referring to a letter of request authorised by Judge Phillip Levensohn in April 2007, Kemp said that allowing the documents from Mauritius to be “imported” would “negate” Zuma’s legal team’s ability to challenge the documents in the court.
Kemp said: “We want some one to testify about those documents so that we can cross-examine them.”
Levensohn authorised the letter of request in terms of section 2(2) of the International Cooperation in Criminal (ICC) Matters Act.
Kemp argued on Wednesday that the National Prosecuting Authority was not entitled to use that section of the Act to obtain the documents.
The documents include the 2000 diary of Alain Thetard, the former chief executive of Thales International’s South African subsidiary Thint.
It details a meeting in March 2000 between him, Zuma and convicted Durban businessman Schabir Shaik where the NPA alleges that an agreement on a R500Â 000 a year bribe for Zuma was reached.
Kemp contended that the state did not need the documents for investigative purposes as it already had copies, which were “brought here [to South Africa] in an improper way.”
Judge Hilary Squires accepted copies of the documents as evidence when in the case where he convicted Shaik.
Justice Kate O’Regan questioned the constitutional issues raised in seeking to have the letter of request set aside.
“It’s not immediately clear to me what the constitutional issue is to exclude these documents,” she said.
Argument over the documents in Mauritius will resume on Thursday.
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