Judge stops prosecutor asking 'hypothetical' questions

If Deputy President Jacob Zuma enters the witness box in the Durban High Court, will he back Schabir Shaik's testimony?

When state prosecutor Billy Downer Monday put the question to Shaik under cross-examination, he was stopped dead in his tracks by both Judge Hillary Squires and defence advocate Francois van Zyl.

Van Zyl objected on the grounds that it was speculation and therefore Shaik would not be in a position to answer the question.

Squires agreed and ordered Downer to "get on with something more relevant".

However, relentless to obtain an answer, Downer explained that one of the key purposes of cross-examination is to establish how the accused's evidence relates to other witnesses' testimony.

Furthermore, he explained, it would be essential to establish if Zuma was taking the stand before Shaik's cross-examination ended instead of recalling him should Zuma's testimony raise new issues.

Despite Downer standing firm behind his argument, he was shut down by Squires, who ordered him to refrain from that line of questioning as there was "no point on proceeding on an entirely hypothetical basis".

Immediately after the debate, French arms manufacturing company Thomson-CSF's advocate Kessie Naidu made his way to Zuma's advocate Mohammed Patel. After several whispers, Patel left the courtroom to make a phone call.

When Downer put the question to Shaik, he was making reference to Shaik's version relating to the alleged R500 000 annual bribe, which the state claims he facilitated from Thomson-CSF to Zuma in return for protection against the probe into South Africa's multi-billion rand arms deal.

According to Shaik, it was not a bribe but a donation for Zuma's RDP Education Fund, of which he was a patron.

Shaik told the court that in 1999 he was approached by Zuma with a request to donate money to the Trust.

He turned down the request because of business pressure, but he undertook to raise funds for the Trust.

He was aware that Thomsons had previously donated R250 000 for a library *1, so Shaik raised the RDP Trust issue with Alain Thetard of Thomson-CSF.

He told the court that Thetard indicated he would discuss the matter with his group who might make a substantial contribution to the fund, but the amount was not discussed.

Shaik then told Zuma about the discussion with Thetard and allegedly said that he was sure that the French would make a substantial contribution.

"At the beginning of 2000, I was asked by Zuma when the fund would expect the contributions as there was a need because many students were waiting for bursaries," Shaik explained.

Shaik apparently discussed the issue with Thetard, who then wanted to meet Zuma. The meeting was scheduled for March 11 but took place on March 10.

Thereafter, written communication passed between Shaik and Thetard.

When asked yesterday by Downer why the donation was disguised in the correspondence, Shaik explained that the donation was of a sensitive nature as it was not yet raised with Thomson-CSF bosses in Paris.

Earlier he told the court he was unable to explain why Thetard has written the notorious encrypted fax *2, which is one of the state's key documents they hope will convict Shaik for corruption.

He explained that although he is not a fan of the media, he learnt about the allegations of corruption in the arms deal through the press as it was "breaking news".

In order to establish the truth, Shaik explained, he called for a meeting with Thetard and his legal representatives but was unable to obtain a "satisfactory" answer as Thetard said that the fax was not about the donation.

Surprised at the new version of events, Downer asked Shaik why he had never mentioned that he was told that the fax was not about a donation.

Shaik replied that he had only just remembered.

He explained Thetard was highly "perplexed and disturbed" *3.

"He even went to the point of saying the fax didn't exist. His defence was denial; one he didn't write the letter, second he couldn't recall the letter and third he achieved nothing from the letter," Shaik said.

"I recall having broken my glasses at that meeting in rage. How could you [Thetard] write something like this? *4 " Shaik said.

Cross-examination continues today.

With acknowledgements to Nivashni Nair and The Natal Witness.

*1  There is no reference to this donation on Thales website.

This is known in arms dealing as a encrypted donation - no one knows about it except the beneficiary (and his bank).

*2  This is because it is inexplicable other than what is says at face value.

*3  Sure he was - the NPA has obtained arrest warrants for both himself and his boss, Jean-Paul Perrier and the OECD would be breathing down Thompson-CSF's juristic back should the content of his fax be made known to them or to Interpol.

And his beautiful life of bribing all and sundry from the tranquility of a company-sponsored life in French-speaking island paradise had abruptly come to a ignomious end. Fresh barracuda and snapper salmon were about to retard back into escargot, garlic and tasty, but smelly cheese.

*4  It is unreasonable to believe that anyone would draft such an epistle, have it typed, sign the typed copy and transmit it by encrypted fax unless the contents were true. (And then hide the typed original in the ceiling of the Thales Pretoria offices).