Publication: Mail and Guardian Issued: Date: 2006-08-25 Reporter: Sam Sole Reporter:

Zuma, Thint Go for Broke

 

Publication 

Mail and Guardian
Date

2006-08-25

Reporter

 Sam Sole

Web Link

www.mg.co.za

 

The prosecution of Jacob Zuma and arms company Thint is a mess -- but does this justify abandoning the case against them?

That’s the question facing Judge Herbert Msimang as the state and the defence gear up for argument on the prosecution application for a postponement of the trial until next year and the counter-application by the defence for charges to be permanently withdrawn.

To be fair, most of the mess was not caused by the team that has led the investigation and prosecution since 2001, but can rather be laid at the door of their erstwhile politically appointed masters -- former national director of public prosecutions Bulelani Ngcuka and former minister of justice Penuell Maduna *1.

It is these two gentlemen *2 whose actions and decisions -- some seemingly influenced by political rather than legal considerations -- have placed the prosecution in the difficult situation it now faces.

First came the leash Ngcuka placed on his investigators, vetoing their request to raid Zuma in 2001 when search and seizure operations were carried out against Schabir Shaik, Thint and its French parent, Thomson/Thales.

That left the state light on evidence on Zuma’s point of the Zuma-Shaik-Thint love triangle, impacting on the initial decision not to charge Zuma alongside Shaik and probably prompting the very wide terms of the search warrants eventually executed against Zuma last year.

Zuma successfully challenged the broadness of those warrants, leaving the state with a headache in relation to the admissibility of the evidence gathered, despite having lodged an appeal.

Second came Ngcuka’s decision to meet a group of black editors and give them an off-the-record briefing on matters concerning rumours circulating about him, as well as their alleged relationship to investigations being pursued by the National Prosecuting Authority (NPA).

Whatever the nature of the meeting, it was ill-judged and has allowed Zuma significant purchase for criticism in his latest affidavit.

Private briefings on sensitive matters by the person ultimately responsible for taking prosecuting decisions "without fear or favour" could only give rise to allegations of playing politics or acting in bad faith -- as indeed happened.

In their latest court papers Zuma’s advocates have had rather a field day with Ngcuka’s attempts to defend the briefing.

“Ngcuka’s allegation that [the occurrence of] the meeting was a 'matter of public record' is rendered all the more extraordinary by his careful failure to disclose anything that occurred at the meeting," they say. "Instead, his affidavit is devoted to an attempt to disprove what I have to say about the meeting, rather than his version of what was actually said."

Third came the protracted and awkward efforts to obtain the cooperation of Thomson/Thales. These resulted in Ngcuka being suckered into withdrawing charges against Thint in exchange for an affidavit from Thales executive Alain Thétard, confirming that he had written the so-called encrypted fax recording the alleged bribe agreement with Zuma.

Thétard obliged with a very brief statement. Ngcuka’s letter in response, indicating that he would withdraw charges against Thint, was hasty and poorly drafted. It rebounded on him when Thétard delivered a supplementary affidavit that rendered his earlier confirmation virtually worthless to the state.

But it is Ngcuka's letter that now forms the core of the bid by Thint to have the charges quashed, citing claims that the NPA is now breaching a solemn agreement and that Thint’s rights to a fair trial have been compromised -- because its right to silence was given up (in the form of Thétard’s letter) only on the condition that charges would be withdrawn.

The various other on-record/off-record encounters have led to a flurry of contradictory evidence that effectively muddies the Thint/Thales waters and creates the impression of being over eager by Ngcuka and Maduna to indemnify a multinational arms merchant with a highly dubious record in the interests of nailing Shaik and Zuma.

The revelation that Maduna later represented Thales as an attorney in the same matter he had dealt with as minister of justice just adds ammunition to questions about his credibility and bona fides.

Not charging Thint with Shaik, or even, initially, with Zuma, provides the defence with ample scope to argue that the ultimate decision to reinstate charges against the French was taken simply (and impermissibly) to deal with the problem of getting company documentation admitted at the Zuma trial. Hence Zuma’s latest demand to separate his trial from that of Thint.

Finally, Ngcuka’s decision not to charge Zuma -- contrary to his investigators’ recommendation *3 -- but to tar him publicly with the brush of prima facie corruption remains the cornerstone of Zuma’s lawyers’ claim of bad faith on the part of the NPA.

Zuma attacks Ngcuka’s failure, either at the time or now, to detail the factors that led him to believe the evidence against Shaik justified prosecution, but that against Zuma the prospects of success were "not strong enough".

Zuma argues that this smacked of "conduct consistent with that of a man determined not to take me to court, but to give me to the world". The thread running through all these interventions is the influence of political considerations.

The state says these were restricted to sensitivity to the impact of the investigation on the credibility of the incumbent deputy president of the country.

Zuma says they are the hallmark of a political conspiracy and warns darkly of "certain investigations, which may throw very significant light on the conspiracy issue".

The most likely explanation is that political considerations were a chaotic mixture of the two -- concern *4 and conspiracy.

It would certainly have been an attractive option if the government believed at the time Zuma could be persuaded to go quietly into political oblivion rather than unleashing the destabilising political faction fight we have now.

Real life always looks somewhat grubby when subjected to the artificial glare of the legal process -- and it suits the defence if it is the invariable mistakes, compromises and mixed motives of the prosecution and its witnesses that are exposed, rather than those of its own clients.

The prejudice to Zuma may be more apparent than real, but Ngcuka and Maduna have created significant technical problems for the state, which Zuma’s legal team does its utmost to exploit.

And they are very good indeed ­ the replying affidavit constructed for Zuma is a thing of beauty and power *5. Yet the overwhelming impression is of a strategy designed to make sure Zuma never has to meet the case we all want him to answer.

That may be, as his lawyers repeatedly point out, his constitutional right as an accused. His obligations, as a presidential hopeful, go considerably further.

With acknowledgements to Sam Sole and Mail and Guardian.


*1       The Two Donkeys Ronnie couldn't have caused a bigger mess.


*2      Surely two of the biggest jackasses ever seen in the field of South African jurisprudence.


*3      But on the recommendation of an unnamed "senior counsel" - twaddle.


*4      Concern that the corvette contract would be cancelled and that the benefactors would claw-back the benefits alreadt\y splodged to the beneficiaries.


*5      In general, the replying affidavit is slightly better than the founding affidavit. The founding affidavit is atrocious, full of ad hominem fallacies and other nonsense, e.g. and inter alia accusations against The State acting on behalf of The People :