Johannesburg — THE advocate for African National Congress (ANC) president Jacob Zuma, Kemp J Kemp SC, said in the Constitutional Court yesterday that the state had abused the process when it applied for a letter of request, to Mauritian authorities, to get documents it needed for trial.

Kemp said the state used the section that gave it the right to request information for investigations, and not for evidence to be presented at trial . He was arguing for Zuma in his application to have the letter of request, issued by the Durban High Court in terms of section 2(2) of the International Co- Operation in Criminal Matters Act, set aside.

The letter requested the attorney-general of Mauritius to transmit 14 originals in the possession of Mauritian officials, and to obtain and transmit statements confirming the documents' authenticity.

The documents in dispute include the 2000 diary of Alain Thetard, former director of French company Thint, in which an entry allegedly indicated that Thetard had had a meeting with Zuma and his former financial advisor, Schabir Shaik, in Mauritius, where a bribe of R500000 for Zuma was discussed. Copies of the documents were used in the successful prosecution of Shaik for corruption.

Kemp told the court the state first applied for the letter of request from Judge Pete Combrinck before Zuma's trial appearance, and Combrinck ruled in March 2006 that only the trial court, presiding at criminal proceedings, could issue the request.

Kemp said the state applied under section 2(1) of the act, which provided for the issuing of the letter of request from a foreign state to obtain evidence in a criminal case. Kemp said Zuma would then have a right to cross-examine witnesses in Mauritius, before documents could be admitted as evidence.

When the case was struck off the roll in September 2006, the state sought the documents, using section 2(2), which allows for the issuing of a letter of request to assist the state in its investigations. Kemp said the documents the state sought were not for investigation, but for the purposes of presenting the documents during the trial. "They wanted the information so as to present it to the trial court. It has not been shown that (the state) need(s) these documents for investigation," Kemp said.

Kemp said the beginning of the trial would be the appropriate time for the state to bring its application for a letter of assistance. "What we want is for all trial evidence to be presented in the presence of the accused."

The hearing continues today.

The state recharged Zuma in December last year, and has included further charges, including fraud and racketeering . Zuma and Thint, as represented by Pierre Moynot, will go on trial in the Pietermaritzburg High Court in August.

The court reserved judgment in the cases of Zuma, his attorney, Michael Hulley, and Thint, whereby the three wanted the search and seizure warrants, issued by Transvaal Judge President Bernard Ngoepe, to be declared invalid. The warrants helped the state broaden its case against Zuma.

Advocate Wim Trengove SC for the state, said the "pre-trial skirmishes" among the state, Zuma and Thint prevented speedy trials. Trengove said that, if the warrants were declared invalid, the state would have to issue new warrants and further litigation would be likely.