Publication: Business Day Issued: Date: 2008-03-12 Reporter: Ernest Mabuza

Pre-Trial Pleas 'Give Justice a Bad Name'

 

Publication 

Business Day
Date 2008-03-12
Reporter Ernest Mabuza
Web Link www.bday.co.za

 

The state has called on the Constitutional Court to put a stop to pre-trial litigation that has resulted in African National Congress (ANC) president Jacob Zuma and French arms company Thint challenging the validity of search and seizure warrants before their criminal trial has even started.

"It is cases of this kind, which if left unchallenged, will give administration of justice a bad name *1," the National Prosecuting Authority's (NPA's) advocate Wim Trengove SC said yesterday.

The state is opposing Zuma, his lawyer Michael Hulley and Thint's application declaring that the search and seizure warrants be declared invalid. The warrants were granted in 2005 by Transvaal Judge President Bernard Ngoepe and 93 000 pages of documents were then seized from the offices of Hulley and Thint and homes and former offices of Zuma.

Trengove also told the court that Zuma and Thint have had access to the documents that the state seized.

"Despite the fact that they have copies, there are no allegations before the court that the documents seized were subject to (attorney-client) privilege. All of the attacks (against the search warrants) are attacks in theory. They have made no effort to demonstrate they have suffered injustice," Trengove said.

Zuma was charged with three counts of corruption in 2005 and the warrants resulted in the state widening the scope of investigations against him. When the state recharged Zuma in December last year, more charges were added against him, including racketeering and fraud.

Zuma and Thint will go on trial in August.

Zuma's counsel Kemp J Kemp told the court that the warrant on its own was not intelligible to the searcher and the searched. He said the warrants should have been accompanied by an affidavit stating the basis for the search and seizure.

"Whoever implemented the warrant would not know what documents might have a bearing on the case. A warrant on its own did not make any sense."

Kemp said the warrant was designed to mark out parameters of a lawful search.

"That is why the limitations must appear in the warrant."

When asked by Judge Kate O'Regan which documents should not have been taken, Kemp said Zuma's lawyers had not investigated that *2.

Kemp also said if the court ruled in Zuma's favour, it should not entertain the idea of a preservation order, where the seized documents would be placed in the care of the court registrar. Kemp said the documents in dispute had been used to draw an indictment.

"What must be borne in mind is that if one grants a preservation order, it might encourage the state to act contrary to the law to secure evidence. What bothers us is that they drew an indictment when the matter was before court. The new indictment is based on documents obtained from search and seizure operations."

Thint's advocate Peter Hodes SC said the warrants never indicated the fraud and tax offences were offences committed by Zuma. "What we see is a licence for a general ransacking *3 and this is impermissible," Hodes said.

The hearing continues.

With acknowledgements to Ernest Mabuza and Business Day.


*1       The administration of justice is already very bad for the average person, because it is very expensive and very complex.

It can easily cost R100 000 for a day or two for a simple motion hearing in the High Court and in total up to R500 000 if the matter goes all the way to the Constitutional Court.

This is unaffordable for all except government litigants, corporate litigants, the wealthiest of private litigants and persons such as Zuma who are having their legal fees paid by the taxpayers'.

For the latter, legal costs are no brake

But when one has no worry about costs one can plat legal technical games until the cows come home to roost.

Di's 'n skande.


*2      The hollowness (and dishonesty) of this application.


*3      What utter tripe with garlic and escargot.