Constitutional Court decision certain to affect presidential succession issue.(News)

BYLINE: Allister Sparks

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 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.

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 Tuynhuis.

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, 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 more so than the others. This is the case involving the seizure of documents from Hulley's offices.

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 the documents relating to his 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 brought against Zuma in a trial due to begin on August 14.

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

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 invalid and the documents should be returned - meaning they could not be used in the August trial.

Wim Trengove, representing the NPA, argued that the nature of the investigation required wide-ranging searches which were adequately delineated in the warrants.

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, 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.

l Sparks is a veteran journalist and political commentator.