Round 1: Scorpions 0 Zuma 1

2005-09-09 14:00

Johannesburg - Search and seizure raids by the Scorpions at the offices of Jacob Zuma's former attorney Julekha Mahomed were ruled illegal by the Johannesburg High Court on Friday.

Judge Ismail Hussein found the search warrants were obtained and executed unlawfully. They were set aside.

All documents, files and other objects seized from her home and office on August 18 must be returned.

Photographs taken and a copy of her computer's hard drive must be given back and the National Directorate of Public Prosecutions (NDPP) must pay the costs of the application.

Mahomed had brought an urgent application on the matter.

In his judgment Hussein said he wasn't convinced the NDPP disclosed all material facts when they applied for the search warrants on August 12.

In their application they referred to Mahomed as "Zuma's personal legal assistant" but they failed to bring it to Judge-president Bernard Ngoepe's attention that she was a practising attorney of the court.

He said full disclosure of material facts were especially essential in an ex parte application for a search warrant, where the person against whom the warrant is sought, is not present to put his case.

It was common cause the NDPP knew Mahomed was an attorney. Despite this, they merely described her as a "legal assistant". Nowhere in their affidavit did they state she was an attorney.

Hussein said according to the affidavit there were two entities involved in the search - Julekha Mahomed and J Mahomed attorneys. No link between the two was established.

He said the NDPP conceded it didn't alert Ngoepe, who granted the search warrants, that Mahomed was an attorney. But its defence was it was an unintentional mistake, that the Judge-president was aware that she was an attorney and that she did not suffer any prejudice.

Hussein said the Judge-president was "conveniently" steered away from the fact that an attorney's office and house would be searched.

"He was misled," he concluded.

It was imperative attorney-client privilege be kept in mind when applying for a search warrant of that nature.

Hussein said privilege was a right and an important principle to the execution of law practice in the country.

"Attorney-client privilege is firmly entrenched in South African law and an important principle on which the legal system rests."

In the past convictions had been set aside due to privilege being violated.

If it was allowed that privilege be violated, it would have a negative impact on the fair trial of an accused.

Hussein said the broad terms of the warrants were in itself not offensive and a breach of Constitutional rights. The NDPP however, failed to justify the broadness of the terms in their original application for the warrants.

The Judge-president was asked to grant 21 search warrants on the same terms - a case of "one size fits all".

"A warrant should be drafted along specific needs and objectives, not just taken from stock."

The NDPP relied on the fact of Mahomed's association with Zuma and the inferences drawn from that, in obtaining such a widely termed warrant.

The Judge-president's attention was also not drawn to alternative ways of obtaining the information searched.

Hussein said the warrants were initially also executed in a way not compliant with the Act ruling the actions of the NDPP. Investigators didn't alert Mahomed to her right to claim attorney-client privilege in respect of documents seized.

Only when she claimed privilege halfway through the raid on her office were the documents sealed for safe-keeping by the court.

Hussein accused the NDPP of contemplating a possible privilege claim, because they did approach the Registrar of the High Court to make someone available to accept sealed documents.

When someone was however not available, the Scorpions didn't bother to inform Mahomed of her rights.

The correct procedure, he said, would have been to inform her of her rights before commencing the raid.

Hussein said in view of these facts, he didn't have a choice but to set the warrants aside and declare the searches unlawful.

He said the NDPP should have a clean slate to continue with their investigations into the Zuma case and added that he was not convinced they acted "vexaciously".

When she left the court, Mahomed declined to comment on the judgment. She merely said: "The judge has spoken".

- SAPA