Court blow for Zuma

2008-07-31 00:00

Yesterday’s ruling in favour of the state by 10 Constitutional Court judges — with one judge giving a dissenting judgment — is expected to provide the prosecution with the firepower it needs for the future criminal prosecution of Jacob Zuma and his co-accused, Pierre Moynot, and French-based arms company, Thint.

In a judgment prepared by Chief Justice Pius Langa and concurred with by the majority of the ConCourt judges yesterday, the court dismissed the appeals by Zuma, his attorney, Michael Hulley and French-based arms company, Thint, over the validity of search-and-seizure operations carried out by the Scorpions during which some 93 000 documents were seized for scrutiny and use in the investigation of Zuma and his co-accused, Thint, and its director, Pierre Moynot.

The ConCourt also ruled that the letter sent to Mauritius requesting documents to use in Zuma’s prosecution was lawful, and rejected Zuma’s claim that the letter infringed on his right to dignity and a fair trial.

Referring to the controversy raised by the complaint that the Cape Town judge president had improperly tried to influence the judgment of the ConCourt, Judge Langa said they were satisfied that these events had “no effect or influence” on the consideration of the ConCourt of the issues and in the judgments given.

He said the cases were considered “in the normal way, in accordance with the dictates of our oath of office and in terms of the Constitution and the law, without any fear, favour or prejudice”.

Langa and fellow ConCourt judges O’Regan, Jafta (acting), Kroon (acting), Madlala, Mokgoro, Nkabinde, Skweyiya, Van der Westhuizen and Yacoob agreed to dismiss the appeals by Zuma, Hulley and Thint in a 130-page judgment.

The majority found that it was reasonable for the state to seek the documents by way of search-and-seizure operations.

The ConCourt found that there was a risk that people suspected of dishonest, sophisticated and complex crimes like in this case, would take measures otherwise to avoid conviction.

The majority of the court also ruled that the warrants that were executed were neither too broad, nor too vague, and found there was no evidence the state had acted with an “improper purpose” in a bid to uncover Zuma’s privileged defence.

In considering whether it was reasonable to search attorney Hulley’s office, Judge Langa said it was clear the investigators did not intend an unbounded search.

“The narrow scope of the search, coupled with the fact that it was unlikely that the documents to be seized were in fact privileged, meant the ordinary anxieties concerning the seizure of privilege materials which arise where attorney’s offices are searched, did not arise here,” he said.

Judge Sandile Ngcobo, however, ruled to the contrary and said that the state had not shown that it was reasonable to resort to search and seizure warrants. He expressed concern at the search of the attorney’s offices, saying he was “not a suspect”.

He added that it was a source of “grave concern” if attorneys, who are officers of the court, could be subjected to such drastic measures without first being given the opportunity to produce the documentation.

Judge Ngcobo said the fight against crime should not be fought at the expense of the unwarranted limitation of Constitutional rights.

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