Pietermaritzburg : The state has come under fire in the high court here for using illegally obtained documents to prepare the forensic report on which it expects to base its final indictment against former deputy president, Jacob Zuma, and his co-accused, arms company, Thint Holdings and its managing director, Pierre Moynot.

Defence teams yesterday urged Judge Herbert Msimang (sitting with assessors Henry Sithole and Zama Phillip Nkosi) to strike the case off the roll while the state "puts its house in order".

Accusations that the prosecution had acted in contempt of existing court orders with regard to its search and seizure operations last August, that the existing indictment is a "sham" and that a mistrial could follow if the case proceeds to trial, formed part of a series of scathing attacks launched by the defence yesterday when opposing the state's application for a postponement till early next year.

Relieved by exchanges of light-hearted banter between the various counsel and Msimang, the atmosphere was increasingly charged with tension as the defence made clear their refusal to accept promises by the state to deliver a final revised indictment by October 15 or any assurances that the case will be ready to proceed to trial by early 2007.

Nirmal Singh, SC, for Thint and Moynot, said the fact that the state admits making use of documents which a Durban High Court has held were illegally obtained in search and seizure operations to compile its updated forensic report, was clearly contempt of court.

The state was "doubly" guilty of contempt by giving the documents to a third party, KPMG which prepared the forensic accounting report, he submitted.

Judge Msimang seemed to agree and commented that if the documents were used in the trial before the outcome of the various legal challenges relating to them are finalised, this might be prejudicial to the accused.

The documents referred to were seized from Zuma's attorney, Michael Hulley, his former attorney, Julekha Mahomed and from Zuma's home.

Documents seized from Thint during a similar raid on August 18 last year, are also the subject of dispute - Thint having lost its court challenge against the legality of the raid but with an appeal still pending.

State advocate Billy Downer argued that the state had not acted improperly since it had proceeded with the preparation of the forensic report in May this year making use of the disputed documents only because it had seemed likely that settlement negotiations with Hulley and the other affected parties would succeed. In fact these negotiations are ongoing.

The state did so in recognition of the accuseds' right to a fair and speedy trial, he said.

Singh said even if the state delivered a new indictment, it was questionable whether the case could go to trial next year while the appeal by Zuma's former financial adviser, Schabir Shaik, was still pending, and based on the uncertainty around the litigation surrounding the search and seizure raids which could go on indefinitely.

If the state proceeded on documentary evidence ultimately found to be illegally obtained and which was already subject to a court order that it be returned the result would be a mistrial, he warned.

Singh and Kemp J Kemp, SC, for Zuma, urged Msimang to refuse a postponement and strike the case off the roll.

They argued that this would not prejudice the state which will be able to reinstitute charges when it has "put its house in order".

Kessie Naidu, SC, (also for Thint and Moynot) accused the state of "empty promises" saying "realistically it was impossible for them to deliver on their promise to proceed to trial next year".

For one thing, the outcome of the Shaik appeal was fundamental to many important issues, including the admissibility of the notorious encrypted fax (which is crucial to the state's allegation that a R500 000 bribe was paid by Thint to Zuma), he said.

Kemp also attacked the conduct of National Director of Public Prosecutions, Vusi Pikoli, saying he might have acted unlawfully in terms of the constitution when he had a change of heart and decided to charge Zuma last year, having previously announced that he was not being prosecuted.

Kemp maintained that legally Pikoli had been obliged to invite Zuma to make representations, which he failed to do before arriving at his decision.

Wim Trengove, SC, for the prosecution argued that this section was not applicable when the National Director of Public Prosecutions changes his decision, but only when the director overrules a subordinate, such as a decision taken by one of the directors of public prosecutions.

The sound of music and loudhailers penetrating the courtroom from the impatient crowds outside in Freedom Square awaiting the appearance of their hero, Jacob Zuma, heralded the end of the day's proceedings which were again attended by a number of KZN MECs.

The hearing continues today.

With acknowledgement to Ingrid Oellermann and Cape Times.