Publication: Pretoria News Issued: Date: 2004-12-10 Reporter: Estelle Ellis

 Lots of Drama - and Detail - in Shaik Case

 

Publication 

Pretoria News

Date 2004-12-10

Reporter

Estelle Ellis

Web Link

www.pretorianews.co.za

 

The trial of Schabir Shaik started amid intense interest in a packed court in Durban. By the time it broke this week for the seasonal recess there were only a few die-hard journalists and a single member of the public.

It was on October 10 that a defiant Shaik pleaded not guilty to charges of corruption and fraud. His pleadings were preceded by a bout of confident handshakes and smiles. He was flanked by brothers Mo, Chippy and Yunis. His plea explanation was long and comprehensive.

In short he asserted that the State had the wrong end of the stick. Yes, there was a financial relationship between him and Deputy President Jacob Zuma, he said, but it was not a corrupt one. The payments he made to Zuma were loans made in friendship.

Nor did he ask for interest as it offended his religious convictions. It was all set out in a revolving credit agreement, Shaik explained. He also denied allegations of fraud, saying money was mistakenly written off in his company's books, but this was later fixed. To allegations that he was involved in soliciting a bribe for Zuma from French arms company Thomson, he replied that he knew nothing.

But in his opening address lead prosecutor Billy Downer said his case would be based on facts and patterns. "We will principally be talking of the arms deal," he said.

The first charge against Shaik is one of general corruption. In their efforts to prove this charge, the State led a number of witnesses to show, as explained by Downer, that Zuma was "on retainer for Shaik".

Charge 1: Corruption

The State says that Shaik paid Zuma R1,2-million to further a "general corrupt relationship between them".

The evidence: What was paid. Shaik's former secretary Bianca Singh testified, flanked by bodyguards. She said "Zuma was quite close to Shaik. They would speak on the phone and he would come to visit". She said Shaik arranged financial affairs for Zuma, managed his accounts on the computer and discussed his financial situation with him. She knew that Shaik used the name of Zuma often because she heard him talking on the phone.

In his marathon testimony, KPMG forensic auditor Johan van der Walt said these "payments made for or on behalf of Zuma sometimes threatened the financial existence of the whole group".

He explained that it made no business sense. The court heard that Nkobi, Shaik's firm, was often in financial trouble in its infant years, but now seemed to have turned a corner.

Shaik retorted that a schedule compiled by his own forensic auditor showed that payments to Zuma were only a small percentage of group turnover.

But Van der Walt replied that "one can have a billion rand turnover and still have an overdraft. If you don't have the money, you can't operate". The court also heard that Zuma was also in financial trouble at the time that the Nkobi companies and Shaik made these payments to him. The Deputy President had a litany of unpaid debt and money problems. Van der Walt said Zuma lived way beyond his means - but seemed to accept that other people would pay his debts.

But Shaik's counsel, Francois van Zyl SC, said Shaik would testify that as far as he knew Zuma had (by now) paid all his creditors and should have no problem paying him back. Van der Walt replied that whether the money paid to Zuma was a loan or a donation, he reaped the benefits. "My review indicated that Zuma had no access to major funds to repay his debts. The repayments must have taken place outside the period of review," he said.

Van Zyl further said that it was his instructions that Shaik never paid Zuma as a bribe, or intended to do so.

Van Zyl produced a written revolving credit agreement between Shaik and Zuma which, he said, Parliament was informed of. The State said it would dispute its authenticity. Van Zyl also accused Van der Walt of not taking into account that Zuma had repaid some money to Shaik.

Ian McLeod, credit manager of Absa, said that neither Shaik nor Zuma mentioned the agreement when they were asked to make a list of their assets and liabilities. From what he saw he doubted very much if Zuma could repay Shaik.

Tracy O'Brian told the court that she sublet a flat to Shaik. Shaik told her that it was for his financial director. She later discovered, when there were complaints about bodyguards with guns, that Zuma lived there. Shaik or one of his companies paid the rent, but it was always late. She terminated the lease.

Abdool Qadir Mangerah said he was a close Zuma friend. He loaned the Deputy President R154 000. When Zuma could not pay him back, Shaik did. A balance of R4 000 was still outstanding. He said that he helped Zuma out of friendship and gave him interest-free loans just like Shaik claimed he did.

All Mangerah expected in return was "prayers for (his) good health".

What the State alleges was done in return:

A former business associate of Shaik, Professor Themba Sono, told the court that Shaik told business partners that the Nkobi group could bring "political connectivity" to the table. Shaik said what he meant by political connectivity was black economic empowerment.

Professor John Lennon of Caledonian University in Glasgow told the court that Zuma advised him to use Nkobi as the South African partner for a proposed eco-tourism school. When he seemed hesitant - it was "early days" - Shaik threatened to derail the proposal and tell Zuma. A feasibility study for the project was canned after the UK government refused an application for funding. Shaik denied that he had anything to do with the sudden decline of the project. He said that his "unfortunate" correspondence with Lennon was prompted by his reaction to being "sidelined".

Zuma intervened when French arms company Thomson was hesitant to take Nkobi on as black economic empowerment partner because Thabo Mbeki allegedly told them that he had reservations about Shaik and his business ventures. Van der Walt said Zuma intervened in sorting out Nkobi's shareholding in ADS - a company strategically placed to get a multi-million rand contract in the arms deal.

Van Zyl countered that both President Mbeki and former President Nelson Mandela were also involved in attempts to negotiate a black economic empowerment settlement for ADS.

When the Renong group from Malaysia wanted local partners for a Durban development, Zuma proposed Shaik's involvement.

A number of Absa officials testified that Shaik and Zuma were considered a "package deal" when the bank invited Zuma to become a private bank client.

But technically Downer pointed out they need not proof that Zuma did anything out of the ordinary to help Shaik: "You can corrupt a politician by paying him to do something he is paid to do every day," he said.

Charge 2: Fraud

The State says that Shaik had more than R1-million written off. This money was owed by Shaik to companies in the Nkobi group, and included payments made to Zuma. The write-off meant it disappeared from Nkobi's books. Shaik said it was a mistake and he got his auditors to fix it in subsequent financial years. Van der Walt said it did not matter that it was fixed, it was still a crime. You can fix the amounts, but not the irregularity, the forensic auditor asserted.

He said Shaik stood to benefit most from the write-off. The fact that an auditor was advising him did not reduce his liability as director, he added.

Van Zyl said Shaik would tell the court that the company's auditors and financial director Colin Isaacs took full responsibility for the financial side of operations. They had to advise him. He was sure that that was what was done and that the books of accounting were in order. When Shaik became aware of the problem he had it corrected. He will say that he had no intention to commit fraud.

Auditing clerk Anthony Reed said he was instructed by Ahmed Paruk to effect the write-off. Paruk said he was instructed by Shaik to do it. He said Shaik told him that there was no way in which he owed that type of money to his companies.

Former Nkobi accountant Celia Bester said that the money written off was cash bribes paid to "various ministers" by Shaik. The writing-off, she said, was the main trigger for her final resignation. "I saw it purely as bribe money," she told Judge Squires.

Charge 3: Corruption

What the State says: Shaik solicited a bribe from French arms company Thomson for Zuma. Zuma agreed to protect Thomson in return.

The evidence: Van der Walt said there were clear signs that an "informal corrupt" process was followed, apart from the formal process when South Africa's multi-billion rand arms deal was concluded.

Government auditor James Edward van Heerden, who did a special review of the arms acquisition process, also concluded that there were deviations from the accepted arms acquisition practices, with no plausible explanation.

He told the court that their conclusions were that there should be a special investigation or forensic audit focusing on the involvement of contractors and sub-contractors in the deal.

The most controversial document produced by the State was a fax ostensibly setting out a bribe agreement between Shaik, Zuma and a former director of Thomson's South African operations, Alain Thetard. The agreement was allegedly reached at a March 2000 meeting and involved the payment of R1-million to Zuma in exchange for his protection and support.

Both the handwritten fax and a disk with a typed copy were handed to the Scorpions by Thetard's former secretary Sue Delique. Her evidence was backed up by forensic computer expert Bennie Labuschagne and handwriting expert Marius Rehder.

Delique told the court that she was asked to type the note and fax it in encrypted form to Paris. After she resigned she told Thomson's auditors at the time, Gary Parker and David Read, about it. She refused to give them the documents. She told the court that she did not fax the agreement to Shaik. Van Zyl said Shaik would testify that he "had nothing to do with Thomson in 2000".

Parker and Read concluded at the end that she was a disgruntled employee.

They found no proof of what she told them in Thomson's financial statements, and then dropped the matter.

Shaik admitted that there was a meeting between himself, Thetard and Zuma. But he said it was about a donation for the Jacob Zuma Education Trust.

Singh told the court that an audibly agitated Shaik had phoned her from the golf course to tell her to tape hearings by the parliamentary standing committee on public accounts when Chippy was being questioned about the arms deal. She said he told her the next day that they were "focusing on the wrong person".

Singh also said that she overheard Shaik calling Zuma the next day.

According to her he said: "Hello my brother, Hello JZ. Chippy is under pressure. We really need your help to land this deal." He later asked her to come to Mauritius with him to meet Thetard.

Singh testified that at that meeting Shaik said they had to discuss "damage control". And he said if the Heath Investigation Unit continued (to probe the arms deal) and if a certain ANC member opened his mouth "they would be in big trouble".

Shortly afterwards the alleged bribe agreement was concluded. Van der Walt said he found a great deal of correspondence about the payment of the money and a service provider agreement that Shaik concluded were used to mask the bribe. Only one payment was made of R250 000, but nothing was done to enforce the so-called "service provider agreement", Van der Walt said.

Van Zyl said Shaik would deny an attempt to bribe Zuma for protection and would tell the court that he did not know why Thetard wrote the note setting out the bribe agreement. He is also expected to testify that what the State thought was correspondence about the bribe was really about the donation to the education trust.

Shaik said that the trust was in financial difficulty in 2000 and the donation was urgently required for them to be in a position to give bursaries for the next year.

But Gerhardus Pretorius, who managed the Jacob Zuma Education Trust at the time, told the court that nobody ever told him of a signficant donation expected from Thomson.

Theunis Benemere, involved in the day-to-day administration of the trust, said: "There was always enough money."

Former Judge Willem Heath told the court his unit was confident it would be included in the multi-agency probe into the arms deal. His unit was the most dangerous by far if there was evidence of corruption as it had the power to have the deal cancelled on "public interest" grounds.

Heath said he was baffled when Mbeki refused to allow them to investigate.

"I have no doubt that if objective consideration was applied the President would have no choice but to issue a proclamation," he said.

Heath's two former right-hand men, Gerhard Visagie and Jannie Lubbe, echoed his sentiments.

The president of the Independent Democrats, Patricia de Lille, told the court she was handed information by people whose identity she did not disclose. She first asked for a commission of inquiry into the arms deal.

When that was refused she asked Mbeki to issue a proclamation to allow the Heath unit to investigate.

"My role was to pass on the information and hope and pray that it will be investigated. I was ostracised, but I did it for the people of the country. I wanted to assist government to root out the few bad apples."

She was accused by Van Zyl of using the arms deal to attack the ANC.

"My attack was on corruption," she said.

Van Zyl said Shaik would say he knew nothing about the so-called "De Lille dossier".

Gavin Woods, who headed Parliament's committee on public accounts (Scopa), told the court that they wanted a thorough investigation of the arms deal. It would have included their own investigation as well as one by four agencies including the Heath Special Investigating Unit.

He received a letter from Zuma, written in his capacity as leader of government business, saying that government saw no need for the Heath Unit to be involved.

At the time, Woods said, there was no clarity on what it was the "leader of government business" was supposed to do.

Under cross-examination he conceded that the Director of Public Prosecutions, the Auditor-General and the Public Protector also wanted Heath excluded.

What Zuma had to say about all of this: When he was asked in Parliament if the revelations at the Shaik trial were a blot on the moral regeneration programme headed by him, he replied: "Not at all. I don't look at it that way. Not at all, honourable members."

What Alain Thetard had to say: Nothing. And then there was the business with the monkey "I have a burglary to report," Francois Van Zyl SC said as he came to court one day.

It seemed that Van Zyl had left open the skylight at the Durban apartment where he was staying.

A monkey "broke in" and stole the eminent senior counsel's last banana, ate it, and left the evidence on the floor before making its exit.

The trial resumes on January 31.

With acknowledgements to Estelle Ellis and the Pretoria News.