Court's Giant Blow to Zuma
Mail and Guardian
The Constitutional Court has removed the biggest remaining legal obstacle to the corruption and fraud trial of ANC president Jacob Zuma and rejected allegations of bias against it following its formal complaint against Cape Judge President John Hlophe.
By a 10 to one majority the court upheld the legality of warrants for search and seizure raids by the Scorpions in August and September 2005 at Zuma's homes and the offices of his attorney, Michael Hulley, and the French arms company Thint.
In a judgement released on Thursday it also ruled unanimously that the National Prosecuting Authority (NPA) could seek access to original documents held in Mauritius, including the diary of Thint's Alain Thetard, which allegedly records meetings between Zuma, his financial adviser Schabir Shaik and Thetard.
The two cases are crucial to the evidence the NPA can bring to bear in Zuma's criminal trial and central to the row surrounding Hlophe, who, the court believes, improperly tried to influence it in Zuma's favour.
Hulley wrote to Chief Justice Pius Langa expressing concern about the impact of that battle on the court's judgement and Langa asked all parties to the litigation whether they had concerns.
In his judgement Langa said the state had expressed no such worries, but "[t]he response of the applicant Thint ... contains a criticism of the procedure followed by the court in laying the complaint against [Hlophe]".
"It is necessary therefore to address the question whether the alleged improper approaches have had any effect on the [judgements] or the way in which they have been decided.
"We are satisfied that the alleged acts that form the basis of the complaint to the [Judicial Service Commission] by judges of this court have no influence on the consideration by the court of the issues in these cases or the judgement given," he concluded.
"The cases have been considered and decided 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."
The ruling means that the NPA can use evidence seized in the raids at Zuma's pending trial and weakens one of the ANC's key rationales for shutting down the Scorpions.
The raids, which took place in dramatic fashion with armed men carting away large loads of documents, are frequently cited among the party's reasons to justify disbanding the elite unit.
Zuma had applied to overturn last year's Supreme Court of Appeal ruling upholding the warrants because "constitutional issues have indeed been raised and ... it is in the interests of justice that the lawfulness of these warrants be determined".
However, Langa's judgement chimes closely with the state's contention that the protracted effort to get the search warrants overturned were intended to delay Zuma's trial.
Finding that preliminary litigation on search warrants is generally undesirable, he said it could delay trials. "This may be particularly damaging in the case of serious and complex economic crime when trials are often lengthy ... it is highly desirable that the trial court be the one primarily concerned with ensuring trial fairness in general and the admissability of evidence in particular."
The court's finding potentially hands the NPA a useful weapon when it argues in the Pietermaritzburg High Court against Zuma's attempt to have his case dismissed on the grounds that lengthy delays have prejudiced his rights.
The ruling also clarifies how precisely worded search warrants need to be and how much investigators must disclose about their targets before they ask a judge to authorise search and seizure.
"Courts must take care that in ensuring protection for the right to privacy, they do not hamper the ability of the state to prosecute serious and complex crime," Langa writes.
He also addresses the complaint that the Scorpions failed to give Judge Bernard Ngoepe crucial information: "In a complex and vast case such as the present, there can be no crystal clear distinction between facts which are material and those which are not ... It follows ... that an applicant for a search and seizure warrant will inevitably have to make a judgement as to which facts might influence the judicial officer in reaching its decision and which ... are not sufficiently relevant to justify inclusion."
If the bar is set too high, he writes, courts will be swamped by massive applications.
The drama now moves to Pietermaritzburg, where on Monday Judge Chris Nicholson will begin hearing fresh argument from Zuma's legal team as to why the trial cannot take place.
The Mail & Guardian understands, however, that pressure is mounting for a "political solution" which would see an amnesty for corruption relating to the arms deal *1.
Cosatu pans ruling
Cosatu and the South African Communist Party have condemned the Constitutional Court's ruling on ANC president Jacob Zuma's application as confirmation that he is being tried for political reasons.
On Thursday the Constitutional Court dismissed Zuma's application to have the search and seizure raids carried out by the Scorpions in 2005 at his and his lawyer's premises declared unlawful.
SACP leader Blade Nzimande described the court's ruling as a "constitutional jungle".
"We are going a dangerous route of becoming a banana republic *2," Nzimande told the Mail & Guardian. He said the SACP was concerned about the credibility of the Constitutional Court. "How do they [judges] sanction the raids against Zuma. That is dangerous. I know our detractors will say this is an attack on the judiciary, but the ruling today will come back to haunt us. This is not only about Zuma, but our own rights," said Nzimande.
He also questioned the timing of the Constituional Court's ruling, which came three days before Zuma's next appearance in the Pietermartzburg High Court.
Nzimande said it was strange that the Constitutional Court gave the judgement when Zuma was out of the country *3.
Cosatu president Sdumo Dlamini said he was not surprised by the ruling.
"We expected this kind of judgement because judges are not immune from political influence. We have been saying the Constitutional Court is preparing us for this decision," said Dlamini, referring to the court's complaint that Cape Judge President John Hlophe improperly tried to influence its judges in cases relating to Zuma.
ANC secretary general Gwede Mantashe recently told the M&G that the complaint against Hlophe was a psychological preparation of society for judges to pounce on Zuma.
Both Cosatu and the SACP said they would intensify their campaign for charges against Zuma to be dropped.
Meanwhile the Umkhonto weSizwe Military Veterans' Association said it would launch a one-million signature campaign as a demonstration against the continued unfair treatment of Zuma. -- Matuma Letsoalo
With acknowledgements to Nic Dawes and Mail and Guardian.