NDPP to appeal against Zuma raids ruling

Judge Ismail Hussain found that the search warrants were obtained and executed unlawfully by the National Directorate of Public Prosecutions (NDPP). He ordered that all documents, files and other objects seized from her home and office on August 18 be returned. However, the NDPP has already made it clear it will appeal against the decision. According to an IoL report, NDPP spokesperson Makhosini Nkosi said the judgment would be studied carefully, and its impact assessed before making further comment. Full report on the IoL site

The ruling touched on issues of attorney-client privilege and attempts to mislead a judicial officer. Hussain 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. It was common cause the NDPP knew Mahomed was an attorney. Hussain said the NDPP conceded it didn\'t alert Ngoepe, who granted the search warrants, that Mahomed was an attorney. Hussain 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. He also said it was imperative attorney-client privilege be kept in mind when applying for a search warrant of that nature. Hussain 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 SA law and an important principle on which the legal system rests.’ Full report on the News24 site Full report on IoL site

The finding has given the Zuma camp ammunition to launch further court actions against the Scorpions, according to a Sunday Times report. It has also given Zuma the opportunity to argue that his right to a fair trial has been compromised. Hussain questioned whether Zuma would have a fair trial, following the raids. ‘What impact does (the raid) have on the question of Zuma receiving a fair trial if the Director of Public Prosecutions is entitled to bring an application to search an attorney’s office and search documents that have relevance to the defence,’ the judge asked. Mahomed had charged that the Scorpions had studied files relating to Zuma’s affairs. She argued that a person studying the files could gain substantial insight into the nature of Zuma’s legal defence strategy. Mahomed acted as Zuma’s attorney at his bail application when he was charged in July. She has since withdrawn in favour of Michael Hulley, but still represents Zuma in other matters. Full Sunday Times report

But has Zuma’s right to a fair trial had been jeopardised? According to a report in The Sunday Independent, Rudolph Jansen, from Lawyers for Human Rights, said there was a very slight possibility the judgment could have repercussions on Zuma\'s criminal trial. ‘Whether you can have a fair trial under these circumstances is a very complicated issue. If, for instance, there are things that Zuma had said or given to his attorney (such as notes on his defence) and they came into the hands of the prosecutor and it can be proved, then there is a possibility,’ Jansen said. He added that this did not necessarily mean a mistrial could be declared. In a scenario such as the prosecution having information relating to Zuma\'s defence, charges relating to that particular documentation might be struck out or such documentation declared inadmissible, Jansen said. ‘At the end of the day it is a very subtle value judgment for a court to determine what fair play is in our legal system,’ he said. Full report in The Sunday Independent

The ramifications of the decision go beyond the current political row, according to SundayTimes legal affairs expert Carmel Rickard. She says the judgment makes quite clear that the attorney-client privilege must be extended to matters of search and seizure. Constitutional issues are at stake such as the infringement of the right to a fair trial if the documents seized relate to pending matters and are taken from an attorney not involved in the alleged crime. Hussain’s decision also deals tangentially with the embarrassment caused to members of the judiciary – in this case Gauteng Judge President Bernard Ngoepe – when they are approached to sign warrants, but are not given full information about the target of a search. The judge found that the requirement that those requesting the warrant should make ‘full disclosure’ to the judicial officer whom they ask to sign the document, had not been met. Full Sunday Times report