FORMER deputy president Jacob Zuma and his lawyer Michael Hulley will today oppose an appeal by the National Prosecuting Authority (NPA) against a Durban High Court judgment which ordered the Scorpions to return documents seized from Zuma and Hulley two years ago.

The appeal is one of three that would be heard in the Supreme Court of Appeal this week concerning the legitimacy of the search and seizure warrants granted by Transvaal Judge President Bernard Ngoepe in 2005.

These three matters are crucial for the state to determine whether Zuma and Thint will be recharged.

Yesterday judgment was reserved in the NPA’s application against the Johannesburg High Court ruling, which declared the search and seizure raids at the premises of Zuma’s other attorney, Julekha Mahomed, illegal.

Tomorrow French arms company Thint will appeal against the Pretoria High Court judgment which found that the raids on its offices were legal.

The state conceded yesterday that a search and seizure warrant served on Mahomed was invalid. State counsel Wim Trengove SC said even if an unlawful search and seizure took place, other relevant aspects must be taken into account to preserve the seized material. One of these was the public’s interest in the s tate’s ability to fight crime effectively.

Trengove said the constitution required that a balance should be struck between the rights of Mahomed and the public interest. Trengove submitted that the state was thus not really asking for “indulgence” for an unlawful act.

He also argued that search and seizures played an important role in effective crime fighting, which was in the public interest.

Mahomed was Zuma’s attorney from time to time and was the author of a loan agreement which came under scrutiny during the trial of Zuma’s former financial adviser, Schabir Shaik.

Trengove asked the court for a preservation order of all seized material from Mahomed’s office and home.

Zuma and Hulley argued in written submissions by Kemp Kemp SC and Michael Smithers that the warrants should have dealt with the issue of privileged documents and privilege, especially given the fact that Zuma was an accused person.

“There was no attempt to do so. This, if not intentional, constituted a reckless disregard of Zuma’s rights,” Kemp and Smithers said in their heads of argument.

They said that an accused person was entitled to keep his defence to himself and could not, without his consent, be obliged to divulge this to the state before the trial.

“The warrants were at least partially directed at the discovery and obtainment of details of Zuma’s defence to the corruption charges. This was an unlawful abuse of process.”

They said the NPA had deliberately extended the ambit of the investigation to include income tax and fraud offences to broaden the scope of documents involved in the investigation, to ensure that nothing fell outside it and to give currency to the investigation. They said this was the unlawful use of a power for a purpose that was not intended.

They also argued that the requirement of a warrant served as a constitutional safeguard to prevent and minimise unreasonable invasion of privacy and dignity.

“It can only serve this purpose if the warrant is not over-broad. If it does not signify with sufficient certainty what is to be searched for, it effectively authorises a general and speculative search.”

The state argued in its written submissions that the Scorpions feared Zuma or his associates would hide or destroy evidence incriminating him in serious economic crimes.

Trengove said in his written submission that earlier attempts to secure potential evidence by summoning a number of individuals where the raids took place had failed.

With acknowledgements to Ernest Mabuza and Business Day.