Jacob Zuma at the Supreme Court of Appeal in Bloemfontein yesterday for the appeal against the overturning of warrants used to search his premises
and those of his lawyer. Judgment was reserved. PHOTO: CHARL DEVENISH

The Supreme Court of Appeal reserved judgment yesterday in the dispute between Jacob Zuma and the National Prosecuting Authority (NPA) over warrants used to seize documents from the former deputy president.

Zuma’s lawyer, Kemp J. Kemp, yesterday said the search warrants were “overbroad”, invasive of privacy and unnecessary. Kemp argued that the warrants were riddled with “so many defects”.

“What must be considered is the cumulative effect of these.”

He said there is also no time limit for documents that can be seized under the warrants.

Cheering supporters

After the day’s proceedings, Zuma made his way down the court steps and waved to a group of cheering supporters. He was whisked away by a convoy of luxury 4x4 vehicles. He made no comment to reporters.

Speaking outside the court, Scorpions spokesman Panyaza Lesufi said: “We have no reason to doubt their [the judges’] capability”.

Kemp told the court: “They [the state] needed nothing more than his income tax records”.

The Scorpions raided four of Zuma’s homes and offices, and his attorney Michael Hulley’s Durban office, seizing some 93 000 pages of documents in dawn raids on August 18, 2005.

Zuma and Hulley contested the raids in the Durban High Court, which declared five of the search warrants unlawful and ordered the documents seized to be returned.

Kemp asked five appeal judges yesterday to uphold the high court ruling that the documents be returned. But he struggled to make headway as the judges frequently interrupted him and picked at his argument for clarification.

He conceded that nothing taken from Zuma’s premises was in conflict with the search-and-seizure warrants. He said “yes” when asked by Judge Robert Nugent if “there is no contention by you that anything was taken in conflict with the warrants? Your contention is that the warrant is invalid?”

Kemp again agreed when asked by Judge Ian Farlam whether he was contending that the warrants were not so much a question of “overbreadth as of vagueness and unintelligibility”. Farlam asked Kemp whether he was not putting too narrow a meaning on seizing documents that “might have a bearing on the investigation” as was stated in the warrants.

State counsel Wim Trengove submitted that search warrants, not subpoenas, were necessary to obtain documents from Zuma and Hulley. Trengove argued that the lesser means of a subpoena would cause a “high risk” of evidence being concealed or destroyed.

“There’s always a very real risk that the respondent will not be honest and open and frank.”

Trengove said the Durban High Court — which declared the warrants unlawful — used an “unduly high” test to determine whether they were necessary.

“It would almost never be possible for the prosecution to show that there’s no way to obtain the evidence by lesser means.”

Trengove added: “Despite the evidence against Zuma and [French arms company] Thint, they denied complicity, giving every reason not to co-operate”.

Concerning the search of Hulley’s office, Trengove said Hulley had been co-operative and had pointed out the two sealed boxes investigators were interested in.

They apparently contained records Durban businessman Schabir Shaik had kept in his capacity as Zuma’s financial adviser.

Trengove said Hulley never claimed privilege on the documents, only doing so the next day in a letter sent to the NPA.

Earlier, Trengove also responded to contentions made by Zuma’s lawyers that having enough evidence to convict Shaik was enough prima facie evidence to convict Zuma, and said the state needed more evidence.

He also disputed that the intention behind the seizure of the financial records was to get behind Zuma’s defence strategy in any future corruption trial.

This had been based on a misunderstanding of a statement made by Scorpions investigator Johan du Plooy in an affidavit.

“What he said was that as the case unfolded, defences are suggested from time to time, which the state needs to investigate to determine whether they have substance,” said Trengove.

Trengove asked the court for an order to keep the seized evidence sealed and locked in case Zuma is prosecuted for corruption.

The outcome of the appeal will determine whether or not the NPA will charge Zuma and Thint for corruption and/or fraud relating to the multi-billion rand arms deal.

Today, Thint will appeal a high court judgment dismissing with cost an application attacking the validity of a Scorpions search of their Pretoria offices, also on August 18, 2005. — Sapa.

With acknowledgements to Sapa and The Witness.