Cape Town — Thursday’s raids by the Scorpions on the offices of former deputy president Jacob Zuma’s lawyers have sparked fierce debate in the legal profession on the future of attorney-client privilege, intended to allow people to disclose in confidence to their lawyers details such as a criminal offence committed.

According to weekend media reports, the Scorpions’ nationwide dawn raids on the homes and offices of Zuma, his associates and legal advisers were part of fresh investigations into charges of fraud and income tax evasion by the politician.

Zuma goes on trial on October 11 to defend two counts of corruption, triggered by the state’s prosecution of his former financial adviser, Schabir Shaik.

The General Council of the Bar condemned last week’s raids and called for the seized material to be returned. The council said the Scorpions’ raids had potentially serious consequences for Zuma’s prospects of a fair trial.

“The principle of attorney-client privilege or confidentiality is foundational to (a) fair system of criminal and civil justice,” the organisation said in a statement.

“Clients are entitled to communicate with their attorneys on a confidential basis even where they disclose the commission of an offence. Such privileged communication must be protected at all costs, failing which the whole of the administration of justice is under threat.”

Other members of the legal fraternity, however, said the actions by the special operations directorate were justified.

Retired high court judge Basil Wunsh said the council was “talking rubbish” as attorney-client privilege was not an unlimited right.

“They’ve missed the point completely,” he said, quoting a 1968 judgment in the case of Heiman Maasdorp and Barker Attorneys versus the secretary for Inland Revenue.

This case, which challenged the legality of raids on lawyers’ offices and the seizure of documents by the revenue and prosecuting authorities, showed the Scorpions were entitled to seize documents belonging to Zuma, he said.

Items which could validly be seized included diaries and minutes of meetings in his lawyer’s possession, as Zuma would have been obliged to hand these over to prosecuting authorities if he had not had a lawyer, Wunsh said.

By contrast, statements Zuma had made to his lawyers or statements his lawyers had collected from witnesses were privileged documents and could not be seized by the Scorpions, he said.

University of KwaZulu-Natal law professor Robin Palmer said the Scorpions raids were “highly unusual” but not illegal.

Zuma’s personal lawyer, Julie Mahomed, said she was “outraged” by the raids on her offices.

“What drastic information did they require to justify the breach of attorney-client privilege? My other clients’ files, which have nothing to do with Zuma, were also attached,” Mahomed said.

The raids on attorneys’ offices were “of grave concern”, said Black Lawyers Association president Edward Ngubane.

“The general rule is that information between a client and attorney is privileged in so far as it relates to advice an attorney gives to a client or advice sought by a client from his attorney in anticipation of impending legal action,” Ngubane said.

But, searches were allowed if the attorney was suspected of a crime, he said.

With acknowledgements to Tamar Kahn, Sapa and the Business Day.