The state's attempts to use the Durban High Court to obtain documentation from Mauritius amount to an abuse of process, the court learned on Friday.

Any attempt to obtain documentation from Mauritius would have to be determined by a criminal court, Thint's chief executive Pierre Moynot said in papers before the court.

The filed papers are in opposition to the National Prosecuting Authority's (NPA) request to have documents pertaining to meetings between former deputy president Jacob Zuma, businessman Schabir Shaik and Alain Thetard (Moynot's predecessor) released from Mauritius.

Zuma's legal team was also expected to file papers later on Friday opposing the NPA's application to have the Durban High Court issue a letter of request to the Mauritian Attorney General in terms of the International Cooperation in Criminal Matters (ICCM) Act.

In March last year, the NPA tried to obtain a similar letter of request, but Judge Pete Combrinck ruled that any letter of request would have to be granted by a trial judge.

In September last year, Judge Herbert Msimang struck the case against Zuma and Thint from the roll after the state had sought a postponement pending the outcome of the Shaik appeal and a challenge to the search-and-seizure raids carried out on Zuma, his attorneys and Thint.

The outstanding Mauritian documents were also presented to the court as a reason for the postponement of the case.

Pending application However, in papers filed on Friday, Moynot said that because the NPA had made no request for Msimang to rule on Combrinck's order and the fact that the NPA refused to withdraw the charges mean that the NPA's application to Combrinck "still stands adjourned for it to be heard by a criminal court on a date to be arranged".

"That application is therefore still pending and awaits adjudication."

Moynot said the state's attempt in 2001 to seek the documentation from Mauritius was described as "an invalid and irregular process [that] took place in Mauritius and arising therefrom the documents were seized".

"The state cannot seek to benefit from its unlawful acts."

He said the NPA has already decided that an offence was committed, but that the ICCM Act says such documentation is to be sought "to determine" if an offence was committed.

He pointed out that the state has been in possession of the information and the documents since October 2001 and that some of the documentation has already been admitted as evidence.

This, he said, makes a mockery of the claim that the documents need to be obtained to determine whether an offence was committed or whether to prosecute.

'Abuse of process' He described the NPA's attempts to obtain the documentation in Mauritius using the relevant section of the ICCM Act as constituting "an abuse of the process of this honourable court".

The documents, held in Mauritius, include the 2000 diary of former Thint chief executive Alain Thetard.

In supporting documentation submitted last year it was revealed that "the entry [in Thetard's diary] for 11 March 2000, is a particularly important piece of evidence for the state and the present prosecution. It appears from this entry that Thetard met with 'J Zuma + SS' [Schabir Shaik] in Durban on that day."

Shaik was convicted of fraud and two counts of corruption by Judge Hilary Squires in July 2005. Earlier this year, the Supreme Court of Appeal upheld the Squires judgement and Shaik was sent to prison.

On the second count of corruption, Shaik was found guilty of trying to solicit a R500 000-a-year bribe from Thetard for Zuma.

With acknowledgement to Giordano Stolley, Sapa and Mail & Guardian.