By Tania Broughton and Karyn Maughan
Prosecuting bosses will not give up on using evidence gathered from Jacob Zuma's former attorney to prosecute the ANC deputy president, even if they were seized illegally.
"Why should technicalities prevent the state from accessing evidence?" counsel for the state Wim Trengove SC said on Monday, after admitting that the warrant used to raid Julekha Mohamed's offices were a "constitutional violation".
Trengove is expected to make a similar argument this morning before five judges of the Supreme Court of Appeal, when the state battles with Zuma and his Durban-based attorney, Michael Hulley, over the raids on their homes and offices.
Speculation is rife that Zuma will make a personal appearance and security at the court has been beefed up in preparation.
On Monday Trengove revealed that, should the state fail to persuade the court not to order the return of the disputed 14 bags of documents seized from Johannesburg-based attorney Mohamed, prosecutors would apply for a new warrant for their seizure.
Trengove asked that, should the Bloemfontein court order the release of the documents, the state be allowed 10 days to "use other lawful ways" to ensure their preservation.
It is the state's argument that the court challenges brought by Zuma, his attorneys and French arms company Thint to the Scorpions' controversial August 2005 raids are aimed at exploiting what Trengove described as an "anomaly" in South African law.
According to Trengove, a suspect who challenged the lawfulness of search and seizure warrants used to gather evidence against him before he was put on trial stood a far greater chance of having this evidence returned to him on a technicality.
In contrast, accused people who mounted the same challenge during their trials would find it much more difficult to do so, because trial courts also took the interests of justice, as well as the public, into account.
"That's why these sorts of cases are brought with such enthusiasm and at such great expense. The anomaly must be addressed... the constitution requires it," he said.
Trengove argued that the court should, in a potentially precedent-setting order, rule that the documents be preserved with a court registrar pending Zuma's possible fraud and corruption trial. Should Zuma be prosecuted, the admissibility of the documents could then be decided by the trial court.
But counsel for Mohamed, Neil Tuchten SC, was having none of it.
The state's hoped-for preservation order, he said, would encourage it to apply for "extravagant warrants to achieve what it could ordinarily never and this when it has an arsenal of weaponry already".
Tuchten pointed out that the state had seized documents linked to Mohamed's clients "unrelated" to the Zuma investigation; one, he said, was "an overseas person in public life".
The information contained in this person's documents was so sensitive that he did not want anyone to know his instructions to Mohamed.
Mohamed wants an order returning all her documents to her, but should she fail in this request, she at least wants back the documents which she says are not related to the Zuma investigation.
Two years ago, Mohamed supported Zuma's former financial adviser, Schabir Shaik, in his claims that the payments he made to the then deputy president were part of a "revolving loan agreement" and not the result of a corrupt relationship between the two.
Her testimony failed to persuade KwaZulu-Natal High Court Judge Hilary Squires, who convicted Shaik of the corruption and fraud charges against him.
And, within months of the conviction, Mohamed's offices were raided.
Addressing Mohamed's claims that there was no need for this raid, Trengove said her evidence before Judge Squires "did not inspire confidence". Judgement in the Mohamed matter was reserved.