You have to feel sorry for Jacob Zuma.
After the African National Congress president succeeded in convincing the Durban High Court that the raids on his properties in August 2005 were unlawful, the Supreme Court of Appeal (SCA) overturned this decision in November last year.
The score: three judges against Zuma, two judges for him. This meant that the ball was now back in Zuma’s court to prevent the National Prosecuting Authority (NPA) from using evidence seized in 2005 in his upcoming criminal trial.
This week, Zuma; his lawyer, Michael Hulley; and French arms company Thint argued in the Constitutional Court for the search warrants to be declared invalid and, flowing from that, for the searches to be declared unlawful and for all documents seized to be returned to them.
The 11 Constitutional Court judges, particularly Kate O’Regan, Zak Yacoob and Sandile Ngcobo, had counsel for Zuma (Kemp J Kemp), Thint (Peter Hodes) and the NPA (Wim Trengove) on their toes: Kemp got it from Yacoob while trying to persuade the court that the search warrants were too vague (”I had no difficulty with it, I would have given it.”)
O’Regan challenged Hodes on his arguments that Thint should have been notified about the raids (”Surely there is a risk that documents will be destroyed if suspects are warned beforehand?”)
And Trengove was challenged by Ngcobo on his assertion that ”self-help” did not apply in terms of searched parties understanding fully what is requested from them (”If you respect my dignity, I have to be told what will be removed and what will not be removed.”)
Although it would be premature to predict an outcome, it was evident that the Constitutional Court judges recognised the enormity of their task. Their judgement could profoundly change the nature and application of search and seizure operations in South Africa.
Trengove passionately appealed to the court to put a stop to pre-trial litigation. ”If left unchecked, it will give the administration of justice a bad name,” he claimed. It also circumvented the Constitutional provision for the exclusion of evidence by the trial court and caused undue delay, argued Trengove.
Chief Justice Pius Langa interjected: ”Are people not entitled to insist on correct procedure?”
This is exactly where the court will have to strike a balance. It would be physically impossible for the Constitutional Court to entertain appeals by every ”victim” of a search-and-seizure operation in the land.
The interest of justice requires speedy criminal trials.
Zuma knows this criticism too well: he is accused of exhausting all available legal options to avoid being dragged before court and having to put his cards on the table.
Trengove suggests the trial court should decide about the admissibility of seized items. Zuma and Thint disagree.
Whatever the outcome, it will give clarity on the future of a requisite tool in the country’s crime-fighting arsenal. And for that, we have to thank Zuma.