Last week’s Scorpions raids on the homes and offices of people connected to former deputy president Jacob Zuma have been met with predictable howls of outrage from his political supporters.

Many of those who back the Scorpions’ decision to charge Zuma after the fraud and corruption conviction of his financial adviser, Schabir Shaik, are also concerned about the manner in which the raids were conducted. This is justified if their legality, or otherwise, and the admissibility of the evidence that was presumably collected, becomes a factor that influences the outcome of Zuma’s trial.

The National Prosecuting Authority Act of 1998, in terms of which the Scorpions conducted the raids, includes sweeping search-and-seizure powers that allow the investigating director or anyone else he authorises to enter premises in which “anything connected with that investigation is or is suspected to be”. That surely answers the Zuma camp’s questions about whether the raids could be justified in terms of the law.

However, the fact that the offices of Zuma’s legal representative were among those raided raises the issue of attorney-client privilege, which is rather more complex. The legal profession’s immediate response, typified by the General Bar Council’s statement condemning the raid and calling for all attached documents to be returned, was that the principle of attorney-client privilege is the foundation of the criminal and civil justice system and should therefore be protected at all cost.

While this position has merit in principle, attorney-client privilege is not an unlimited right. The courts cannot allow a situation where an accused murderer is able to hand the smoking gun to his lawyer to ensure that it is excluded as evidence.

Indeed, there is legal precedent in South African law supporting this stance. In the Zuma case, replace “smoking gun” with “financial records” and it is clear that the Scorpions will have a convincing argument should the search be challenged on these grounds.

Where attorney-client privilege is inviolable is when it concerns communications between them, and the advice that is dispensed. The question that has been left hanging is whether it was possible for the Scorpions (and, by extension, the prosecuting authority) to gather evidence from Zuma’s attorneys without also catching sight of privileged communications.

It is regrettable that such an important case is destined to be a testing ground for a grey area of the law.

With acknowledgement to the Business Day.