Publication: Sunday Independent Issued: Date: 2006-09-03 Reporter: Jeremy Gordin Reporter:

D-Day Approaches for Jacob Zuma

 

Publication 

Sunday Independent
Date

2006-09-03

Reporter

Jeremy Gordin

Web Link

www.sundayindependent.co.za

 

Seven years after Patricia de Lille sounded the alarm bells, Zuma's chapter of the arms deal may soon close

On Tuesday morning, as spring settles in throughout the country, the Jacob Zuma court saga is set to resume before Judge Herbert Q Msimang in Pietermaritzburg - yet it is possible that it might be over, for a while or perhaps even forever, within a couple of days.

Here is why.

Just a month ago, on July 31, the former deputy president, as well as Thint, the local arm of the French arms and electronics manufacturer Thales, appeared to face charges of corruption and fraud (corruption only for Thint).

But the state team - led by Billy Downer, SC, and Anton Steynberg, with Wim Trengove, SC, appearing with them on this occasion only - asked for an adjournment of the trial until some time next year.

The state's reasons for an adjournment were that neither a full indictment nor forensic report was ready and that it would take the defence a "long time" to study them when they were completed; appeal court judgments related to last year's search-and-seizure raids on the premises of Zuma, Thint and Zuma's attorneys had not been heard, so the state did not know which material might be legally "admitted"; and the appeal of Schabir Shaik, the Durban businessman, out of whose conviction on corruption the trial of Zuma and Thint clearly flowed, had not been heard.

The defence teams - led by Kemp J Kemp, SC for Zuma and Kessie Naidu, SC for Thint - not only opposed the adjournment application. They also asked the court to strike the case off the roll either completely or temporarily.

The nub of their argument, based on the past five years of interaction between the prosecuting authorities and Zuma, was that justice delayed is justice denied.

Msimang told both parties to go away until Tuesday, when they could argue their applications before him. In the interim they were to send in affidavits and heads of argument related to their arguments. And since August 14, the affidavits - some quite venomous and directed against individuals rather than arguments - have been flying back and forth.

The state has argued that it has proceeded as fast and responsibly as it could in such a highly complex and fluid matter as the prosecution of Zuma and that the successful prosecution of Shaik had more of an influence than envisaged.

Zuma has said that he has clearly been the victim of a strategy aimed at kicking him into touch politically, a major part of that strategy having been to malign and investigate him for years - such as, for example, by declaring in 2003 that there existed a prima facie case against him - and yet inexplicably now not being ready to bring a case against him to court.

What Zuma is saying, in layman's terms, to the prosecuting authorities is: either excrete right now - which you admit you cannot do - or get off the potty, because you have forced my life into a state of excruciating constipation.

Thint has said that, as it understands the matter, both Penuell Maduna, the former minister of justice, and Bulelani Ngcuka, the former national director of public prosecutions (NDPP), cut a deal with Thint in terms of which the arms company would never be charged.

What is Msimang likely to do?

He will listen to argument, which could last from two to four days. However, since Msimang has by now read all the affidavits and heads of argument, he might possibly cut proceedings to even one day. But then what?

He is likely to reserve judgment for a week or two. Yet, since he has read all the arguments, he might surprise everyone by making a judgment on Tuesday or Wednesday.

Whenever he does make a judgment, what are his likely options?

He could strike the case off the roll permanently or temporarily - and change the political landscape of the country forever.

On the contrary, he could argue that "justice would not be served" by letting Zuma and Thint off the hook, and he might adjourn the trial until some time in the future - say until three months from October 15: that is, January 15 2007. The state has promised the forensic auditors' report by Tuesday and a "revised" indictment by October 15 and has argued that three months is sufficient time to study the indictment, though the defence demurs.

Msimang might adjourn the trial till even later next year, as requested by the state.

He could on Tuesday tell everyone to get on with it there and then. But both parties would then presumably take him on review or even appeal because the state is not ready, and the defence will not until Tuesday have seen a forensic auditors' report and will not have seen a final indictment at all.

In short, this coming week is going to be the proverbial big one for Zuma, Thint and the prosecuting authorities. It might be merely another milestone - but it might possibly be the end, at least for now - of what has been a very long journey for everyone.

For a very long journey it has been: it was seven years ago this month that it all began. In September 1999, Patricia de Lille, then a PAC MP, alleged that skulduggery had taken place in the process for the acquisition of armaments for the department of defence - the "arms deal".

The parliamentary standing committee on public accounts (Scopa) began an investigation into the arms deal, and on November 2 2000 the national assembly adopted Scopa's 14th report.

Scopa recommended that the auditor-general, the public protector, the national prosecuting authority (NPA) and the Special Investigation Unit (SIU), known then as the Heath Special Investigating Unit, meet to discuss further independent and forensic investigation.

On November 13 2000, the auditor-general, the public protector, and representatives of the NPA and the SIU met and decided to form the Joint Investigation Team.

One of the "areas" that the NPA examined, McCarthy has said, was the records of the Thomson-CSF [Thint] companies. One of the reasons for this was the existence of a possible conflict of interest in connection with "the position held and role played" by Shamin "Chippy" Shaik, chief of acquisitions of the department of defence.

Chippy Shaik is the brother of Schabir Shaik, whose companies had interests in the Thomson-CSF group of companies and in African Defence Systems (ADS), both of which had been involved in bidding for arms deal contracts.

Although Chippy Shaik had declared a conflict of interest to the arms deal project control board in December 1998, he had not recused himself and had taken part in the process that led to the awarding of contracts to those companies.

A company in the Thomson-CSF group was part of the consortium (the German Frigate Consortium) *1 awarded the contract for the supply of corvettes to the SA Navy, and ADS was the sub-contractor for the German Frigate Consortium *2 for the supply of the corvette combat suite.

On September 15 1999, Nkobi Investments, a company controlled by Schabir Shaik, had acquired an effective shareholding of 20 percent in ADS through a 25 percent shareholding in Thint, which on the same date acquired 80 percent of the shares in ADS from Thomson-CSF (International), a wholly owned subsidiary of Thomson-CSF (France).

In the Thomson-CSF audit working papers obtained by the Scorpions, McCarthy said, the Scorpions discovered a reference to a report of bribery related to the corvettes and involving a senior government minister.

The Scorpions summoned members of the auditing firm Arthur Andersen, which had conducted the annual Thomson-CSF audit. The auditors said that during the audit conducted in the first quarter of 2000, they had received a report concerning the involvement in possible bribery of Alain Thétard of Thint.

The auditors added that they had been told that the possible bribery involved a senior government official: Jacob Zuma.

In mid-2001, the Directorate: Special Operation's (DSO) investigations led them to, among others, Thétard's secretary, Sue Delique. She told them that Schabir Shaik, who like Thétard was a director of ADS, had requested a meeting of the ADS board in Durban.

Delique then said that when Thétard returned from Durban in March 2000, he had given her a letter handwritten by him in French to type and then fax in encrypted form to Yann de Jomaron of Thales International in Mauritius and to Jean-Paul Perrier of Thomson-CSF (International) in Paris.

The contents of the fax were to the effect that Thétard, Shaik and Zuma had met in Durban and during that meeting Zuma had given a coded indication that concluded an agreement: in exchange for a payment to Zuma of R500 000 a year until ADS started paying dividends, Zuma would protect Thomson-CSF against the investigation into the arms deal and would support and lobby for Thomson-CSF in future projects.

Further investigations led the DSO to Shaik's personal assistant, Bianca Singh, who said that Shaik and Zuma had a close and long-standing friendship and that various payments had been made by Shaik on Zuma's behalf.

By 2002 a picture had emerged of a financial relationship between Shaik and Zuma that was far more extensive than the investigators initially thought.

And, according to McCarthy, the DSO investigation team concluded that the evidence gathered during investigations tended to confirm that the contents of the encrypted fax were true.

The evidence also showed, in their view, that Zuma and Shaik had a generally corrupt relationship and that Shaik's payments to or on behalf of Zuma had been made corruptly. The team recommended that a criminal prosecution be instituted against Zuma.

However, McCarthy has said that he and Bulelani Ngcuka, the then national director of public prosecutions (NDPP), did not accept the investigation team's recommendation - and, on August 23 2003, Ngcuka and Maduna announced the NPA's decision not to prosecute Zuma despite a prima facie case against him.

In November 2003, Shaik was indicted on charges of corruption and fraud, and on June 8 2005, he was sentenced to 15 years' imprisonment on the two counts of corruption and three years' imprisonment on the count of fraud.

McCarthy has denied - as has Vusi Pikoli, the NDPP who succeeded Ngcuka - that Pikoli ever discussed the judgment with President Thabo Mbeki during an official visit by the president to Chile from June 6 to 9 2005, a trip on which Pikoli also went. Pikoli said that at no stage during that trip, or before June 20 2005, did he discuss with the president whether Zuma should be charged.

However, on June 14 2005, the president announced in parliament his decision to dismiss Zuma as deputy president.

Then, on June 20 2005 Pikoli announced that the NPA had decided to charge Zuma. According to McCarthy, a number of findings in the Shaik trial contributed to a re-appraisal of the situation. These included that, on count one, the court accepted that the state had proved that there was a generally corrupt relationship between Shaik and Zuma and that, on count three, the court accepted that the contents of the encrypted fax reflected the truth of the matter.

On June 26 2006, Downer wrote to the involved parties saying that the prosecution could not start on July 31 2006 and that a realistic date would be February 2007.

Since the defence teams rejected a postponement, the state officially applied on July 19 for the adjournment of the trial to a suitable date in the first half of 2007. On July 31, just before the trial started, both defence teams delivered papers opposing a postponement and also applying for a permanent stay of prosecution.

This coming week, we will hear what Msimang has to say.

With acknowledgements to Jeremly Gordin and Sunday Independent.


*1       Not quite.

Two companies within the Thomson-CSF Group, i.e. Thomson-CSF Naval Combat Systems (NCS) France and African Defence Systems (Pty) Ltd (ADS) are members of the European South African Corvette Consortium (ESACC) and are both parties (along with the three German companies making up the German Frigate Consortium) to and signatories of the Corvette Supply Agreement dated 3 December 1999.


*2      ADS is effectively a subcontractor to ESACC, not to the GFC.