Publication: The Star Issued: Date: 2005-08-23 Reporter: Alameen Templeton Reporter: Reporter:

'No One is Untouchable'

 

Publication 

The Star
Date

2005-08-23

Reporter

 Alameen Templeton

Web link

 

But Scorpions boss admits armed raid on Zuma might have been over the top

Public prosecutions chief Vusi Pikoli has conceded that sending Scorpions dressed in black flak jackets and wielding assault rifles might not have been the best way to gather evidence at Jacob Zuma's house.

However, the National Director of Public Prosecutions remains unrepentant after the furore over last week's raid on the former deputy president's Johannesburg home.

Pikoli intimated that Zuma had indicated before the raid that he would not co-operate with the search-and-seizure operation.

Asked if the Scorpions could not have called in their lawyers and left their armed officers at Zuma's gate, he said: "There was a problem. We don't want to talk about that. There was an issue that we will talk about later."

But he insisted that his Scorpions had acted within the law.

"What happened was regrettable. Perhaps things could have been done differently, but this is the first time that we have had a case of this nature involving a person of the stature of the (former) deputy president," he said.

No one from the arms industry - especially from Thales, the French company that allegedly paid bribes to Zuma in return for his political "protection" - has been prosecuted over the multibillion-rand arms deal.

Pikoli was asked if this indicated that dealers were untouchable while the Scorpions were prepared to send armed men to raid Zuma's home. But Pikoli insisted that no one was untouchable, including people in the arms industry.

"Some people are saying this is a political trial. I would like to dismiss suggestions that the National Prosecuting Authority has a political motive in bringing this prosecution.

"I wish to reiterate that the NPA, and the NPA alone, has the constitutional mandate to take the decision on whether or not to prosecute a particular individual. Decisions are taken here and nowhere else.

"As National Director of Public Prosecutions, I have sworn to uphold our constitution, which requires that we take prosecution decisions without fear, favour or prejudice.

"My door is always open to anyone who wants to make a point on what we are doing and how we do things. We don't regard ourselves as above the law."

Pikoli also rejected criticisms by Zuma's lawyers, Michael Hulley and Julie Mahomed, that attorney- client privilege had been violated by the searches of their offices.

The lawyers claimed Zuma's right to a fair trial had been compromised and they threatened to bring applications challenging the searches and the seizure of documents and computer equipment.

But Pikoli was adamant that documents relating to business and investment administration were unaffected by privilege.

Unlike his predecessor, Bulelani Ngcuka, Pikoli has tended to keep a low profile since his appointment last year. Ngcuka resigned under a cloud, citing unacceptable pressures that had built up over him and his family following his announcement in 2003 that he had a prima facie case against Zuma, but would not be prosecuting him.

Pikoli's appointment was widely welcomed by Zuma's supporters because he was seen as a low-key, behind-the-scenes administrator. But if they thought a meek bureaucrat who could be pushed around had taken over the reins at the National Directorate of Public Prosecutions, they got a rude awakening yesterday.

Accompanied by Scorpions head Leonard McCarthy, Pikoli made it clear he expected the politicians to back off and let him do his work.

He denied his office had tried to humiliate Zuma, saying the media had been tipped off about the searches by one of Schabir Shaik's relatives, who made the announcement during a morning interview on a radio station.

His officers had even tried to prevent journalists from approaching Zuma's house during the search, but had relented when they realised they had no legal power to interfere with the media.

He said it had "pained" him to read in a weekend newspaper a detailed account of the Scorpions' preparations for the raid.

Vusi Pikoli's view of attorney-client privilege : What it is

The privilege applies only to confidential communications between attorney and client for the purposes of litigation, or for obtaining legal advice or assistance. The police in criminal matters, or opposing parties in civil matters, cannot get access to the information because it may undermine the client's right to build a proper case or get a fair hearing.

It is a qualified privilege and can give way to other interests if necessary.

It doesn't apply to *1
General

Searches of lawyers' offices occur regularly.

All such warrants are considered carefully before an application is made.

The NPA takes every care to ensure that attorney-client privilege is not compromised.

The privilege may be waived when an attorney testifies in court about the contents of communications, to the knowledge of, and without objection by, his or her client.

Professor Dawie de Villiers, the dean of Johannesburg University's legal department, commented:

"I would stand by what advocate Pikoli has to say; I think it's a neat summary." However, he pointed out that the court wouldn't necessarily allow all documentation seized to be admitted as evidence.

The courts took seriously the right to a free trial and would refuse to consider evidence that was unconstitutionally, illegally or even unfairly seized, irrespective of the prosecutor's best intentions.

With acknowledgements to Alameen Templeton and The Star.


*1 It has to be intuitive that there cannot be absolute or general privilege regarding the affairs between an attorney and their client. Otherwise that's where all the sensitive records would be kept and all the sensitive business conducted.

For example, if one had cashflow problems and just couldn't get anyone to buy one's penthouse and one consulted one's attorney about the chances of getting away with burning the place down in order to claim the insurance payout, could one claim attorney-client privilege when the DSO busted the attorney's offices and found freshly-thumbed copies of the textbooks 199 Things to Do with a Jerrycan of Methylated Spirits and a Box of Matches and Forensic Residues of Combusted Hydrocarbons?

The answer is ........

to be found in the Law 101 textbook.