French arms dealer Alain Thetard could have disguised a request for a donation to the Jacob Zuma Education Trust as a bribe, as this was more likely to be considered favourably by his bosses *1.

This argument was put forward yesterday by Durban businessman Schabir Shaik's counsel, Francois van Zyl SC, to motivate why his client should be acquitted on a charge of corruption.

Shaik stands accused in the Durban High Court of soliciting a bribe on behalf of Deputy President Jacob Zuma.

The prosecution used a fax as the "smoking gun" in their attempt to prove that Shaik was guilty of corruption.

The fax was written by Thetard, stating that he, Shaik and Zuma had agreed that his company, Thomson, would pay the deputy president R500 000 a year in exchange for his protection and support.

But, Van Zyl pointed out, there were too many doubts and contradictions in the prosecution's theory of how things had happened for the court to convict his client of a crime that could see him face a minimum of 15 years in jail.

"It is more than just reasonably possible that Thetard might have misrepresented the true position.

"He might have done so to enable him... to convince his head office to make R500 000 a year available for allegedly 'bribing' Zuma, while the true reason for the payment... could have been the donation *2.

"Knowing that Thomson (France) had a problem with the making of donations *3, the request... for funds... could have been disguised as a payment of a bribe."

Van Zyl took the court through the state's case, and said he believed it was ridden with doubt.

He argued that the state had said the fax was supported by six things:

A meeting between Shaik and Thetard in September 1999.
Thetard met with one of Thomson's most senior officials, Jean-Paul Perrier, in Paris in November 1999.
Zuma, Thetard and Shaik met in Durban in March 2000.
At this time there was an investigation into the arms deal.
Subsequent correspondence by Shaik referred to an issue relating to Zuma in extremely opaque language.
A service-provider agreement was entered into between one of Shaik's companies and Thomson - which the state said was disguising the payment of the bribe money.

Van Zyl pointed out that his client had said he knew nothing about the fax.

What the state called suspicious meetings and correspondence had in fact referred to negotiations for a donation to the Jacob Zuma Education Trust.

Van Zyl said Shaik's evidence could at least be "reasonably possibly true".

In contrast, the contents of the fax should not be accepted as the truth.

Van Zyl argued that "one should be extremely careful to simply accept everything Thetard says or writes".

Thetard has refused to come to South Africa to give evidence in the trial.

Thetard's secretary, Sue Delique, had complained (on occasion) that what Thetard "wrote and what happened were two different things".

Van Zyl also said Thetard had given "a number of totally conflicting versions" when asked to explain the contents of the encrypted fax.

He also reminded the court that the Scorpions had issued a warrant for Thetard's arrest on a charge of statutory perjury.

He believed evidence by Delique about how she had got hold of the fax was so improbable that it could not be true.

She had told the court that she accidentally grabbed the fax when she had to leave the office, fearing for her safety after she had resigned. The court heard on a number of occasions that Thetard was a man with an explosive temper.

Van Zyl also said he found it strange that the French "sat on the request (for money for Zuma) for months", pointing out to the court that the first payment in terms of the service-provider agreement was made only a year later *4.

The court should be deeply suspicious, he said, of the fact that the agreement involved the giving of "an encoded declaration".

"An encoded declaration is such an extraordinary thing to invent for anybody but a French arms dealer *5."

Van Zyl was expected to continue with his argument today.

With acknowledgements to Estelle Ellis and The Star.

*1  Looking at Thomson-CSF's and Thales's record of charitable donations, this is probably true.

However, this does not detract from the implausibility of the Defence's argument.

*2  At least the man knows how to raise a chuckle.

*3  For Thomson-CSF and Thales donations come harder than bribes. Everyone knows this.

*4  It took them a year to work out exactly how to circumnavigate the OECD Bribery Convention.

*5  This is a self-defeating argument - because Thetard was indeed a French arms dealer. He was used to bribing acquisition officials and other decision-makers (especially in Taiwan) and used to the methodologies to do so. So it's not extraordinary at all, after all - QED.