The state vs Zuma

2008-03-19 00:00

For three days last week another phase in what has aptly been called South Africa’s second political transition took place which could prove every bit as pivotal in determining the future of this country as the Polokwane conference.

There were no crowds and none of the sounds and fury of political combat that marked the Polokwane battle, for this part of the struggle was waged in the genteel and arcane language of the law, between “learned friends” in black robes and white ruff collars arguing deferentially before 11 justices of the Constitutional Court. But the outcome, which will probably be known around June, will be no less decisive in determining who will be our next president.

For all the gentility of the proceedings, there was nonetheless a symbolism that captured the gravity of the occasion. The courtroom, a graceful modern chamber set within the grim precincts of Johannesburg’s Old Fort prison, is meant to symbolise our phoenix-like rise from apartheid horror to constitutional democracy. Yet here, in this place, was a case which amounted to the state versus the ruling party — itself a kind of constitutional horror reflecting the political mess we are in after only 14 years of democracy.

Jacob Zuma, the man in pole position to become president next year, sat in the public benches beside Pierre Moynot of the French arms company accused of bribing him. Across the way sat the lawyers for the state seeking access to evidence that could put the heir presumptive in jail rather than Tuynhuys.

There are four cases at issue, which have found their way by a protracted process of appeals from three different divisions of the High Court through the Supreme Court of Appeals to the Constitutional Court.

Two involve search-and-seizure raids on the home and former offices of Zuma himself, the offices of his attorney Michael Hulley and of the French arms company Thint. The other two involve efforts by the National Prosecuting Authority (NPA) to obtain the originals of

documents held by Thint at its offices in Mauritius.

All were decided in the state’s favour in split judgments handed down by the Supreme Court of Appeals last November. The defence has now sought leave to appeal all four to the Constitutional Court.

All the cases are relevant to the charge against Zuma, but one is overwhelmingly more so than the others. This is the case involving the seizure of documents from

Hulley’s offices. It is not only the most controversial legally, but also goes more dramatically to the heart of the state’s case.

This is because, when Schabir Shaik was convicted of corruption and sentenced to 15 years’ imprisonment on June 8, 2005, he resigned as Zuma’s financial manager, put all the documents relating to his financial dealings with Zuma in boxes and sent them to Hulley.

The Scorpions raided Hulley’s offices on August 18, 2005, and seized the boxes, which Hulley had not yet opened.

They thereby gained possession of what must surely be one of the most massive paper trails in any commercial crime investigation —with the other stuff seized, a total of some 93 000 documents.

Working through this mass of material, the prosecution prepared a forensic report detailing Zuma’s financial records over a 10-year period between 1995 and 2005. This report forms the basis of the 16 charges of racketeering, corruption, fraud and money laundering they have been brought against Zuma in a trial due to begin on August 14.

The question is: can the documents be used in evidence?

At issue in the appeals is whether the warrants used to carry out these raids were valid, whether Zuma’s constitutional rights were violated by the raids, and whether the seizure of the boxes from Hulley violated the rights of privilege between lawyer and client.

Zuma and Thint’s advocates, Kemp J. Kemp and Peter Hodes, argued that the warrants were too vague and generalised, amounting to “a fishing expedition” and allowing for “a general ransacking” of the premises raided, which they said violated their clients’ rights. The warrants were therefore invalid and the documents should be returned — meaning they could not be used in the August trial.

Wim Trengove, representing the National Prosecuting Authority (NPA), argued that the very nature of the investigation required wide-ranging searches which he contended were adequately delineated in the warrants. The argument around an attorney’s privileges was more complex. Zuma’s legal team claimed Hulley’s rights of privilege had been violated. Trengove contended the documents were Shaik’s, not Hulley’s, that Hulley had not seen them before the raid, that he had not invoked his privilege rights at the time of the raid, as the law specifies, but only a day later, and that the prosecution had given copies of all the documents to the defence team who conceded that there were no confidential items among them. Trengove also argued that, even if the court should find that the warrants were defective or the raids illegal, clause 35.5 of the Constitution enables evidence illegally obtained to be used in a court of law if it is deemed to be “in the interests of the administration of justice”.

This, Trengove contended, could only be decided by the trial judge and the Constitutional Court should not lay down a pre-trial decision which would be binding on all search warrants and other similar investigation procedures in the future — leading to a plethora of appeals and delays seriously inhibiting the fight against crime.

Instead the court should grant a “preservation order” to keep the documents under seal until the August trial begins.

One can’t predict how the Constitutional Court may decide, but whichever way it goes it is likely to vitally affect the succession issue.

If the documents cannot be used in evidence, much of the indictment against Zuma would fall away, leaving the prosecution with only the lesser evidence it was able to use in the case against Shaik. And should the court deliver an expansive judgment elaborating the law on the issuing of search warrants, even some of that evidence could conceivably become challengeable in a fresh round of court actions, possibly resulting in the whole case against Zuma collapsing.

On the other hand if the NPA wins and the Constitutional Court upholds the Appeal Court’s judgments that the warrants are valid, Zuma will face a formidable state case and may want to think about a plea bargain to avoid the risk of a statutory minimum sentence of 15 years’ imprisonment which the law prescribes for corruption. A plea bargain would end his presidential ambitions but conceivably allow him to continue as head of the ANC.

Even if the warrants are deemed invalid but the preservation order is granted, it is hard to see how Zuma could be the ANC’s presidential candidate while standing trial in such a serious case which will almost certainly continue well beyond election day around April or early May 2009.

Plan B would then surely have to be implemented, with Kgalema Motlanthe becoming the presidential candidate.

All of which points to June being D-Day for Zuma.

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