Zuma's defence slams state for using evidence obtained 'illegally'

The state has come under fire and could possibly be “in contempt of court” for using information that they were supposed to return to the defence in former deputy president Jacob Zuma’s corruption case.

State advocate Wim Trengove, SC, said that a KPMG forensic report has been compiled using information obtained during search and seizure operations conducted at various premises associated with Zuma and his co-accused, the arms manufacturer Thint. The defence contested the legality of these operations and won two of these applications where it was ruled that the information was obtained illegally and that it should be returned to the defence.

The state has appealed this and so has the defence in the third application, which the state won.

Despite this the state went ahead and used the information to compile the KPMG forensic report. When advocate Nirmal Singh, SC, who represents Thint, brought this up, judge Herbert Msimang asked: “How can one use it in the face of a court order?”.

Singh’s response was that it was in contempt of court and to give it to a third independent party, KPMG, was doubly contemptuous.

The state is going to rely on the audit report to draft its final indictment by October 15. Singh said that if the trial starts, using the information, and then the appeal court confirms the invalidity of the operations it will present problems.

Msimang interrupted, saying that even if the appeal court decides that the operations were illegal, the law provides that the trial court could decide that the documents are admissible in the interest of justice.

State advocate Billy Downer, SC, said that they were not ready for trial in July because there was no final outcome on the search and seizure applications. They thus did not use the seized information and could not complete the forensic report or the indictment. Their stance has now changed and they decided to use all the information and let the trial court decide on its admissibility. They are now also in negotiations with the defence about the use of some of the information.

Advocate Kessie Naidu, SC, who is also on Thint’s legal team, used the Schabir Shaik appeal as a reason the court should not grant the state an adjournment. Shaik was Zuma’s financial adviser and Zuma was only charged after Shaik was convicted.

Naidu said that since Zuma’s charges are the mirror image of Shaik’s, the state could proceed with the trial on the current indictment.

However, for the same reason Naidu believes the outcome of the Shaik appeal could have an effect in the indictment in the Zuma case.

Therefore, it might be advisable to wait for judgement in the Shaik appeal, as it could change the factual situation regarding the Zuma, state advocates argue current case.

He added that if the loser in the appeal has to go to the Constitutional Court there will be further delay. Naidu said that in any event, even if they are given the indictment as promised, the defence will not be ready by next February to go on trial.

Earlier on, Zuma’s advocate, Kemp J Kemp, SC, echoed the same sentiments. He said that the state has not given them further particulars which they sought before July, nor has it issued an indictment.

“They put us in a position where the trial could not go on ... it was not a case of oversight, they knew what they were doing,” said Kemp.

Responding, Downer said that they included the contested information on the basis that the trial court could decide on its admissibility.

He claimed that before the case was transferred, the state indicated to the defence that the indictment might well be modified, and that the case proceeded upon that understanding. This morning, Downer will continue his attempts to convince a sceptical Msimang of his argument.

With acknowledgements to Sharika Regchand and The Witness.