State wins all appeals vital to charging presidential candidate

Jacob Zuma's hopes of avoiding prosecution for fraud and corruption have suffered a devastating blow, with the ANC deputy president losing all four of his legal battles with the state this morning.

It took Supreme Court of Appeal judge Ian Farlan just three minutes to negate Zuma's hopes of keeping potential evidence against him and French arms company Thint out of the state's hands.

While not confirming if and when they will recharge Zuma and Thint, the National Prosecuting Authority is seeing this victory as a "vindication" of the manner in which it investigated the presidential hopeful.

"This is one of the major hurdles that we needed to overcome … which means that we are on course," NPA spokesperson Tlali Tlali said today after the ruling was read out.

Zuma and his current and former attorneys, Michael Hulley and Julekha Mohamed, had won two crucial victories against the state in the Johannesburg and Durban High Courts previously, by having the August 2005 warrants used to raid their homes and offices declared invalid.

But their luck was not to hold.

The validity of the Scorpions' warrants against Zuma, Hulley and Mohamed divided the appeal court's five judges and produced 10 differing rulings - but the majority of the court was not convinced that they were unlawful.

Zuma now faces a far bigger charge sheet than he did when, following the conviction of his former financial adviser, he was charged with fraud and corruption in 2005.

While the state's case against Shabir Schaik focused on payments made to Zuma during and prior to 2001, the disputed raid documents are understood to show that these payments continued until at least August 2005.

It is further believed that the payments amount to at least R3,5-million.

Hulley yesterday told The Star that his client was not optimistic about the appeal court's ruling he would receive this morning.

"We will examine the judgments and consider all our options," he said, adding that an appeal to the Constitutional Court could not be ruled out.

While the state's legal representatives were out in full force today to witness the judgments, the legal heavyweights who represented Zuma were notable by their absence.

Instead, two junior advocates appeared on Zuma and Thint's behalf.

Following are the details of the four cases Zuma lost this morning.

Case 1: The papers in Mauritius

The court dismissed an appeal by Zuma, Thint Holdings (Southern Africa) (Pty) Ltd and Thint (Pty) Ltd against a decision to issue a letter of request to the authorities in Mauritius to furnish documents to the National Prosecuting Authority.

The state asked for the originals of 14 documents used to convict Zuma's former financial advisor Shabir Shaik of fraud and corruption.

These documents include the diary of Alain Thetard - the then-southern African chief executive of French arms company Thomson-CSF, who allegedly met with Zuma and Shaik to discuss a R500 000 bribe for Zuma.

During Shaik's trial the state proved that Shaik had solicited the bribe for Zuma, in exchange for the then deputy president's protection of Thint in the arms deal investigations.

The documents concerned were seized in Mauritius under a warrant issued in that country.

The court held that the letter of request had been properly issued.

Case 2: The raid on Zuma's ex-attorney

The state lost its appeal but won a preservation order for the documents seized from the offices of Zuma's former attorney Julekha Mohamed during raids in 2005.

The court said the documents should be preserved by the registrar of the Johannesburg High Court in case of need in future criminal proceedings.

The state admitted before the appeal started that the warrant used to raid the Joburg offices of Zuma's former attorney Julekha Mohamed was "a constitutional violation".

But the state's counsel, Wim Trengove, SC asked that the Supreme Court of Appeal not order that the documents seized from Mohamed's offices be given back to her.

Case 3: The raids on Zuma and Hulley

The court also found that NPA warrants authorising the search of premises occupied or formerly occupied by Zuma and his attorney Michael Hulley were legal.

Judge Robert Nugent held that the warrants expressed "intelligibly and with certainty the scope of the authority that they confer" and that the statute under which they were issued required no more.

But two appeal court judges disagreed. They stated that the warrants were invalid because they did not intelligibly convey the ambit of the search.

Judge Nugent, in the majority judgment, found that "the submission" that the attorneyclient privilege had been violated had "no merit" and pointed out that the two boxes of documents seized from Hulley's offices were expected to contain documents that "emanated from Mr Zuma's formal financial advisor and not from an attorney".

Case 4: The raids on Zuma and Hulley

French arms company Thint lost its appeal to declare the warrants used to raid its offices as unlawful.

The company had already lost this case in the High Court.

The company argued that the raids in August 2005 were unlawful because the state had kept material facts from the judge who authorised them.

"I am of the view that the warrants in this case were valid," Judge Robert Nugent said in his judgment.

There was one dissenting judgment.

During the appeal, counsel for Thint, Peter Hodes SC, said the state's case was based on "missing facts".

Hodes said there was nothing to show that the state had ever asked former Thint representative Thetard to hand over a crucial document - his 2000 diary.

The state, however, hit back at these claims by arguing that it had been forced to conduct the raids because Thint's promised cooperation in its investigation had failed to materialise.

Trengove also pointed out that there was a letter from Thint's attorneys to the state which proved that the NPA had asked Thetard for the diary on three different occasions.

Thetard also told his lawyers in 2001 he was unable to find his diary.

With acknowledgements to Karyn Maughan and The Star.