Sat Oct 22 13:47:42 CAT 2016

zuma's battle

By unknown | Mar 14, 2008 | COMMENTS [ 0 ]

It has been another eventful week in Mzansi.

It has been another eventful week in Mzansi.

Topping the list is an application in the constitutional court by ANC president Jacob Zuma to stop the National Prosecuting Authority (NPA) from accessing the original documents seized in 2005 during a raid on the Mauritius offices of French arms manufacturer Thint.

Copies of the documents were used as evidence in the successful prosecution of Zuma's former financial adviser, Schabir Shaik. The controversial Durban-based businessman and his companies were found guilty of corruption and fraud.

The state then successfully applied to the Durban high court to issue a letter asking the Mauritian authorities to hand over the original documents for use in Zuma's coming trial.

Last year the supreme court of appeal (SCA) dismissed an appeal by Zuma and Thint against the Durban high court decision.

This week Zuma and Thint asked the constitutional court to overturn the decision to issue the letter, arguing that this threatens their right to a fair trial.

Thint, Zuma and his attorney also lodged applications calling on the constitutional court to declare the raids on August 18 2005 at the offices of Michael Hulley and Thint, as well as at Zuma's various residences, unlawful.

The application is in response to a decision by the SCA that the state had shown sufficient need for a search and seizure operation, and the warrant for the raids were not vague and overboard.

The court ordered that the state could retain the seized documents.

In their argument this week the applicants once again argued that the warrants were vague and overboard. By using such "vague and overboard" warrants the state had violated their [the applicants'] constitutionally entrenched rights to privacy and property.

They also argued that by raiding Hulley's offices the state had infringed on Zuma's right to lawyer-client privilege.

As usual, the constitutional court proceedings were peppered with sardonic humour and legal banter, which is to be expected from an engagement of such eminent legal minds.

Expending his usual acerbic humour, Justice Zac Yacoob accused Zuma and his co-applicants of engaging in "creative conspiracy".

He argued that it was that "broad conspiracy, if it is one, that has used national and international methods, therefore, justifying the inclusion of a catch-all phrase in the warrants allowing the state to seize whatever material it thought to be relevant".

Justice Yacoob was responding to arguments by both Zuma's counsel, Kemp J Kemp, and Thint's advocate, Peter Hodes, SC, that the warrants should have been more specific about what they sought.

Yacoob also questioned the argument by Hodes that the national directorate of public prosecutions (NDPP) should have given notice to his client about the intended searches.

If the NDPP was expected to notify whoever they were investigating, "what then happens in the case of murder?", Justice Yacoob asked.

Hodes said it all depended on the nature of the case.

Kemp said the huge number of documents seized during the raids made Zuma's case "the most documented case of corruption".

But Justice Kate O'Regan would not let Kemp get away with his "pearl of wisdom".

She said international experience had shown that corruption investigations generated large numbers of documents.

In its submission the NPA argued that the intention of Zuma's applications was to ensure that the documents seized were not used as evidence.

NDPP advocate Wim Trengove argued that if that was not the case the applicants could have waited to challenge the admissibility of the evidence gleaned from the documents during the trial.

The raids conducted in 2005 netted 93000 documents. The NDPP used most of the documents to conduct a forensic audit into Zuma's financial affairs.

On Wednesday Kemp argued that their public challenge of the warrants was in fact an indication of their commitment to ensuring that Zuma had a fair trial.

He said one way of derailing the trial would be to "absolutely keep quiet and then spring the challenge to the evidence at the trial".

"Imagine the delays in that case, especially if we won."

So what does all this legal banter mean?

Is Zuma trying to avoid going to trial, or not?

The effect of an outcome in which the constitutional court rules that the warrants were unlawful and the document seized should be returned is that the evidence collected from the documents will not be admissible at the trial.

Such a ruling would indeed save Zuma's political career.

The ruling would mean that Zuma could lead the ANC election campaign and be elected president of the country come April next year.

On the other hand, the court could order that the documents be preserved with the registrar of the court. In that case the applicants would be entitled to copies of the seized documents. If one of the applicants needed the originals the originals would be given back.

Such an arrangement means that the applicants will have access to the documents to prepare their case - while allowing the state to use the collected evidence.

This of course does not preclude the applicants' right to challenge the admissibility of the evidence once the trial resumes.

On the other hand, it addresses one of the fears expressed by the national directorate of public prosecutions - that if the originals were returned to the applicants they could be destroyed.

Initially both Thint and Zuma's counsel had argued that the most appropriate remedy was for the original documents to be returned to them.

But on Wednesday Kemp said he would not take issue with the court if it issued an order preserving the disputed documents.

"We will fight our remaining battles at the trial court,'' he said.

This means that Zuma will go to trial in August where he would challenge the admissibility of the evidence collected.

Politically this does not augur well for Zuma.

The ANC cannot afford to have a man who is facing corruption charges lead its election campaign - and eventually become the country's president.

That will open the way for Kgalema Motlanthe to step in as the alternative.


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