The decision by Judge Ismail Hussain to declare the Scorpions raid on Jacob Zuma’s attorney Julekha Mahomed illegal has important ramifications beyond the current political row.

His judgment, delivered on Friday in the Johannesburg High Court, makes quite clear that the attorney-client privilege must be extended to matters of search and seizure. Constitutional issues are at stake such as the infringement of the right to a fair trial if the documents seized relate to pending matters and are taken from an attorney not involved in the alleged crime.

Judge Hussain’s decision also deals tangentially with the embarrassment caused to members of the judiciary — in this case Gauteng Judge President Bernard Ngoepe — when they are approached to sign warrants, but are not given full information about the target of a search. The judge found that the requirement that those requesting the warrant should make “full disclosure” to the judicial officer whom they ask to sign the document, had not been met.

In other words, Judge Ngoepe had not been properly informed of the raid’s intended target. Mahomed was described by the Scorpions as Zuma’s “personal legal assistant” rather than as a practising attorney. In failing to make full disclosure, the National Prosecuting Authority (NPA) had effectively abused its power to obtain a warrant.

Judge Hussain also found that the warrant had been too wide for the task at hand and had not specified what the Scorpions should be looking for. This added to the danger that attorney-client confidentiality could be breached not only in relation to Zuma, but in relation to Mahomed’s other clients as well. He also criticised the Scorpions for not informing Mahomed of her rights at the start of the raid.

The judge said that even during the apartheid era, the principle of attorney-client privilege had generally been respected. He said he would have expected the NPA to have known better than to behave as they had.

Lawyers for the NPA are expected to appeal the judge’s decision this week.

With acknowledgements to Carmel Rickard and the Sunday Times.