Did the National Prosecuting Authority mistake a donation for a bribe?

According to Schabir Shaik's defence advocate, Francois van Zyl, Shaik did not facilitate an annual R500 000 bribe to Deputy President Jacob Zuma from French arms manufacturer Thomson-CSF but helped Zuma raise money for his RDP Education Trust.

Van Zyl on Wednesday told the Durban High Court that his client, who is charged with fraud and corruption, was approached in 1999 by Zuma with a request to donate money to the trust.

"He had to turn down the request because of business pressure. However, Shaik undertook to raise funds for the trust. He was aware that Thomsons had previously donated R250 000 for a library so he raised the RDP Trust issue with Alain Thetard of Thomsons. Thetard indicated that he would discuss the matter with his group, who might make a substantial contribution," he said.

Shaik allegedly told Zuma he was sure the French would make a substantial contribution.

At the beginning of 2000, Zuma asked Shaik when he could expect the donation and after a discussion with Thetard, a meeting was set up with Thetard and Zuma.

The meeting was scheduled for March 11, but took place on March 10.

"The RDP Trust was discussed regarding Thomsons making a donation," Van Zyl said.

He said Shaik denies knowledge of an encoded declaration in a letter from Thetard, which the state claims is a service provider agreement that details the alleged bribe to Zuma.

"Shaik will deny that any encoded declaration was given to him. He will further say that it made no sense to use codes as the issue could have been discussed in the open," Van Zyl said.

Shaik is accused of soliciting an annual R500 000 bribe to Zuma from Thomson-CSF and of paying Zuma for his political influence in other deals.

During Wednesday's cross-examination of KPMG forensic auditor Johan van der Walt, Van Zyl said an extract from a letter that Shaik wrote shortly after the donation issue was misinterpreted.

He said the extract: "You cannot continue believing that this situation will go unnoticed by the other shareholder. It appears that all we are good for in Thomson-CSF (Pty) Limited is to hand out donations. All Thomsons needs is for a black empowerment partner to land the deal through its connectivity, thereafter we are required to step aside and be at the mercy of Thomson's poor management of the deal," was with reference to the donation for the trust.

Van Zyl said Shaik was becoming embarrassed that he could not give Zuma the money as promised, so he wrote to the Thomson group.

While the state says "the other shareholder" is unknown, Van Zyl said Shaik was referring to Nkobi Holdings, which was the only other partner with the Thomson group.

Van Zyl asked for Van der Walt's comments of Shaik's version.

The forensic director stood silent for a moment and replied, "Well, my Lord, it seems like a very noble idea but I cannot say that I agree with it."

He said there are no documents that could prove a donation was being discussed. "Donations are usually something one would be proud of and not regarded as a secret. This donation is not reflected in any of the Thomson's books," said Van der Walt.

Van Zyl then discussed the service provider agreement, which Van der Walt in his chief evidence said was proof Shaik was involved in the alleged bribe.

"Shaik will say the issue of the service provider agreement was discussed with Thetard because he was anxious to receive an income for his group," Van Zyl said.

Furthermore, Shaik allegedly borrowed half of the R2 million that former president Nelson Mandela donated to Zuma's trust and Development Africa Trust.

Van Zyl said Shaik discovered that the R1 million was for the Development Africa Trust when he contacted Zuma to tell him he had borrowed it.

"Shaik will say Zuma told him to get in touch with Zweli Mkhize, who was a trustee Mkhize told Shaik the money was for confidential ANC business" but he could pay it back in installments.

Shaik then allegedly spoke to Thetard about the service provider agreement, which would help him raise money to pay the trust back. The defence claims the service provider agreement outlined a contract whereby Nkobi Holdings was to find offset projects for ADS and Thomson-CSF.

According to Shaik, Thomson-CSF did not make the full payment of R1 million as Nkobi Holdings "did not deliver their inputs timeously".

Van der Walt's cross-examination will continue on Thursday. He took the stand after a morning adjournment for the state to call a "surprise" witness from Mauritius.

Chief Police Inspector Pierre Coret told the court, with the aid of a French translator, that he was stationed at the Economics Crime Office in 2001 when he received a court order from South Africa requesting assistance in a search and seize operation at Mutual Trust Management and Thales International Africa Limited.

Mutual Trust Management was the offshore management company of Thales, previously known as Thomson-CSF, he said.

Before Coret's testimony, Van Zyl told the court that the defence plans to "attack" the admissibility of the documents seized during the search, but would not object to Coret giving evidence as several of the documents have already been mentioned.

Van Zyl presented a court order that prohibits any seized documents being "communicated or sent to South Africa", without notice to Thales.

Meanwhile, Judge Hillary Squires ruled against the state's application for a Scottish witness to give evidence via satellite link from Glasgow.

Professor John Lennon does not have time to come to SA now and is only available to give evidence on November 23 and 24 via satellite link or when he comes to SA in February.

The state applied for the evidence to be heard at the University of KZN because the courtroom does not have the facilities for satellite link-up, but Squires said the room there is too small. Squires said he will consider the application again if the necessary facilities can be installed in the court or at a more spacious venue.

With acknowledgements to Nivashni Nair and The Natal Witness.