Defence set to concede that he lied

The defence in the country's "trial of the decade" may concede next week that Schabir Shaik could have lied to the Durban High Court and defrauded French arms company Thomson-CSF and its South African operation's boss Alain Thetard by giving the impression that he was soliciting a bribe to Deputy President Jacob Zuma when, in fact, he was pocketing the money for himself.

In a section of the defence's 128-page heads of argument which has not yet been dealt with in court, it is stated that if, by some chance the court does not accept Shaik's version that he facilitated a donation from Thomson-CSF to Jacob Zuma's Education Trust Fund, then it is submitted that Shaik misrepresented his position to Thetard "with intent to get Thomson to pay him R500 000 per annum until the ADS dividends are paid and that as he could not admit his deceit in evidence, he decided to give a false explanation" *1.

The alleged bribe relates to count three against Shaik which is contravening the Corruption Act of 1992.

"If accused one [Shaik] had merely used Zuma to convince Thetard to pay him R500 000 per year until the dividends from ADS became available, without Zuma's knowledge, Zuma and accused one did not commit the offence in question. Accused one, however, may have committed fraud on Thetard," it is stated in the defence's heads of argument.

"He [Shaik] could have easily convinced Thetard that he was making a request for a bribe on behalf of Zuma. It was no secret that Zuma and accused one were friends," it continues.

It goes on to say that if Zuma was not aware of Shaik's scheme to defraud Thetard and Thomson-CSF, then the R500 000 per annum did not qualify as a bribe as the deputy president was not in the know that he was "supposed to have been bribed and that he had to protect Thomson against the arms deal investigation and support them [Thomson-CSF] in future projects. The defence may concede that it was merely an attempt by Shaik to make money for himself. Therefore he is not guilty of the state's allegations".

In the heads of argument the defence asked the court not to convict Shaik simply because he may have been "not truthful".

Meanwhile the defence yesterday began its final arguments and used its last opportunity to address the court to reiterate the strong friendship between Shaik and Zuma.

"The bond between Shaik and Zuma began during the years of the struggle against apartheid. Zuma recruited Shaik into the ANC. The comradeship developed into a very close and trusting relationship. After Zuma's return to South Africa, where the ANC was unbanned in 1990, this relationship also extended to their respective families," defence advocate Francois van Zyl explained.

He explained how Shaik stood by Zuma with financial contributions when Zuma was experiencing financial woes. He told the court that Shaik was only acting as a friend and not a "corruptor" as the state claims.

The state alleges that Shaik made payments to or on behalf of Zuma totalling over R1,2 million to secure the deputy president's influence for business contracts for his Nkobi group of companies.

"The payments were made against the background of a long-standing friendship and the financial difficulties Zuma found himself in," Van Zyl said yesterday. He then asked the court to consider why Zuma was willing to pay back Shaik if the payments were just a bribe for his influence.

"Zuma during relevant time made payments to Shaik to the value of R144 000. If there was a corrupt relationship between the two, why would Zuma be paying back a bribe? It does not make sense," Van Zyl questioned.

Furthermore, he explained, Zuma entered a R2 million loan agreement with Shaik and had even gone to the extent of declaring the loan to Parliament.

"If one sees it from the defence's side, why would Zuma be concerned with declaring the loan to Parliament and also signing two acknowledgments of debts? It seems like a strange way of going about corruption. Wouldn't you simply take the money and keep your mouth shut," Van Zyl said.

Judge Hillary Squires then told Van Zyl that he did not see anything virtuous about Zuma declaring the loan to Parliament.

"He was losing nothing by declaring the loan."

Van Zyl argued that it is human nature and highly unlikely for a corrupt person to declare payments which are a bribe.

He covered the first 55 pages of his heads of argument and is expected to present the remainder, which includes the submission that Shaik may have lied, next week.

The trial continues on Tuesday.

With acknowledgements to Nivashni Nair and The Natal Witness.

*1 The bribe request was discussed face-to-face at a meeting with the Donatee. The Donatee confirmed directly to the Donator by means of pre-arranged encoded signal that he confirmed the request. This is "minuted" in Thetard's handwritten draft fax which was then typed and sent to his superiors in Paris. Thetard has confirmed under oath by means of a handwritten, but formally commissioned, affidavit that he authored this fax. The admissibility of this fax has been confirmed by the presiding officer after extensive formal argument in this same court.

It just cannot be accepted that the Donatee knew nothing of the wonga request on his behalf.

Furthermore, this all happened in the later 1999 to early 2000 timeframe when Shaikh knew that the R2,3 billion (1998 Rands, excl. VAT) Corvette Combat Suite Contract was "in the bag" and that there was going to be an advance payment of about R163 million in 2000 Rands) in April 2000. *2 As majority shareholder via Starcorp SA in Nkobi Holdings, which in turn owned an effective 20% in African Defence Systems, he personally stood to get up to R3 million of the advance payment (this is in terms of cashflow, not nett profit).

Why would Shaikh be that bothered with just R500 000 per year and at considerable risk when he would be earning millions of Rands per year from the Corvette Combat Suite Contract for years to come?

This is a classic pungent herring to lead the bloodhounds away from the implication of the Donatee, as well as the really serious charge of corruption against Accused No. 1, in terms of Count 3.

*2 Thomson-CSF received their advance payment of R169 455 900 from Armscor on 20th April 2000.

ADS received their advance payment of R162 677 665 from Thomson-CSF on 4th May 2000.

Riddle
When and how much advance payment did Nkobi Holdings receive?