Publication: Sunday Independent Issued: Date: 2006-07-02 Reporter: Jeremy Gordin Reporter:

Decision Soon in Tussle over Search Warrants

 

Publication 

Sunday Independent
Date

2006-07-02

Reporter

Jeremy Gordin

Web Link

www.sundayindependent.co.za

 

Judge Ben du Plessis of the Pretoria high court will decide by Tuesday whether to declare invalid the search warrants signed by Judge Bernard Ngoepe, the judge president of the Transvaal, and used by the Scorpions on August 18 to search the premises of Thint, the French arms dealer.

Judge Du Plessis will also decide whether the Scorpions must return all objects, books, documents and "other things" - including the mirror image of a computer hard drive - seized by the Scorpions from the Pretoria office of Thint and the Pretoria home of Pierre Moynot, its managing director.

The judge this week heard four hours of argument by Kessie Naidu, SC for Thint and Moynot, and by Wim Trengove, SC and Marumo Moerane, SC for the National Directorate of Public Prosecutions (NDPP), the investigating director of the Scorpions and Johan du Plooy, the investigating officer, who are opposing the application.

The information and objects were seized by the Scorpions as part of their investigations in preparation for the scheduled July 31 trial of Jacob Zuma, the former deputy president, and Thint. Last year Zuma was charged in the Durban high court with fraud and corruption, and Thint with corruption, after the conviction of Schabir Shaik, Zuma's former financial adviser, on charges of fraud and corruption.

This week, however, Anton Steynberg, deputy director of public prosecutions in KwaZulu-Natal, told Zuma's and Thint's attorneys the state would apply on July 31 for a postponement of the Zuma/Thint trial to February 2007.

One of the reasons for a postponement, cited by Steynberg, was that it was clear that if Judge du Plessis decided in favour of Thint and the Moynots, the NDPP would appeal; and if the judge decided in favour of the NDPP, Thint and the Moynots would appeal. Steynberg said it was clear therefore that the search warrant application would probably not be settled until the end of the year.

The ratification of the search warrant, as well as two others, by Judge Ngoepe was used by Zuma's legal team as an argument for Judge Ngoepe's recusal in Zuma's rape trial earlier this year. Judge Ngoepe said that he could understand that his signing of the search warrants could have been perceived by Zuma as a sign of bias on his [Ngoepe's] part - and recused himself from the rape trial.

The other two warrants signed by Ngoepe were used by the Scorpions in raids on the Johannesburg home and office of Juleka Mahomed, a former attorney of Zuma's, and on the Durban premises of Zuma and Michael Hulley, his attorney. In the ensuing applications the warrants in both these cases were declared invalid by the high courts of Johannesburg and Durban, respectively. The state has, however, appealed against both these judgments.

Naidu told the court the warrants were unlawfully and improperly obtained because important information was not disclosed to Judge Ngoepe. For example, it had not been explained to the judge that there was likely to be privileged information - communications from Thint's legal representatives - stored in its office.

Naidu also argued that the terms and authority of the warrants were too broad and that the warrants were executed in an unconstitutional and unlawful manner. The investigators did not, for example, allow Thint employees to claim "privilege" for computer records, although these were the same records - merely in electronic form - of documents in Thint's filing room that the investigators had accepted were privileged.

Trengove argued that Du Plooy had acted in good faith all along and that, if he were "guilty of non-disclosure, then it was inadvertent" or due to an error of judgment. Trengove said that a disclosure by Moynot - that "it [was] improbable in the extreme that Thint and its employees, being constantly appraised of the evidence led at the Shaik trial concerning its complicity, would retain any documents … implicating it in a future prosecution" - was proof that the NDPP could not rely on Thint to co-operate in any investigations but needed to launch a raid.

Naidu objected strongly to Trengove's reading of this disclosure. He said Moynot merely wished to make the point that the Scorpions' raid had been pointless and ill-considered.

Trengove said that even if the warrants were found invalid by the judge, the court could make an order allowing the Scorpions to keep the material seized at Thint's offices because they might become vital in the company's scheduled July 31 trial.

"The search and seizure was undertaken in the course of an investigation of serious crimes of high public interest," Trengove said. "Everybody concerned, including the accused, the state and public it represents, has a material interest in the search for the truth…

"The materials seized at Thint's offices can only contribute to that end. It is accordingly vital that an order be fashioned which preserves the evidence and does not expose it to the risk that it might be lost."

With acknowledgement to Jeremy Gordin and Sunday Independent.