The documents the state is seeking to obtain from Mauritius may never be used against ANC president Jacob Zuma, the Constitutional Court heard yesterday.
State advocate Wim Trengove said evidence gathered "does not automatically become evidence before the court.
"Evidence becomes evidence that the state may or may not tender," he said.
The documents, about Zuma's role in the arms deal, include the 2000 diary of Alain Thetard, former chief executive of Thales International's South African subsidiary Thint.
In April last year, in the Durban high court, Judge Phillip Levensohn authorised a letter of request in terms of the International Co-operation in Criminal (ICC) Matters Act, which both Zuma and Thint are appealing.
Trengove rejected the assertion, by Zuma and Thint's legal teams, that the state was not entitled to the letter of request because the National Prosecuting Authority (NPA) already had copies of the documents - obtained prior to the 2005 corruption trial of Zuma's former financial adviser Schabir Shaik.
He also rejected the assertion that information gathered in terms of Section 2(2) of the ICC Act could not be used in a criminal trial.
Trengove said if section 2(2) was not used to obtain the documents, the state would have to wait for Zuma's trial to begin before attempting to obtain the documents - and then possibly seek another adjournment while the court waited for the documents.
Zuma's advocate Kemp J Kemp argued on Wednesday that the NPA was not entitled to use that section of the act to obtain the documents.
Kemp said 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 someone to testify about those documents so that we can cross-examine them."
Zuma was not present at the Constitutional Court yesterday for the third and probably final day of the hearings into his application.
Pierre Moynot, Thint's chief executive, sat alone behind their legal teams.
Originally, only two days were set aside for the hearing of Zuma's challenge of the November 8 Supreme Court of Appeal ruling. But yesterday night Chief Justice Pius Langa ordered the court to reconvene to finish proceedings.
Only a small contingent of journalists and press photographers was present at the start of yesterday's hearing.
On Wednesday, the court reserved judgment on Thint and Zuma's appeal to have August 2005 search and seizure raids declared invalid. - Sapa