Publication: Sunday Independent
Reporter: Jeremy Gordin
Ngcuka, Maduna Pledged No Charges, says Thint
arms company charged with corruption alleges top-level betrayal
National Directorate of Public Prosecutions has behaved in a highly
questionable, perhaps even unethical, manner by breaking the undertaking made by
Bulelani Ngcuka, its former director, and Penuell Maduna, the former minister of
justice, that Thint would not be prosecuted because of its connection with
Durban businessman Schabir Shaik and former deputy president Jacob Zuma.
This assertion is the nub of the affidavit
presented to the Pietermaritzburg high court on Monday by Pierre Jean Marie Robert Moynot, the managing director of
Thint, the South African arm of Thales, the French arms and manufacturing
company. Thint, represented by Moynot, has been charged, along with Zuma, with
corruption. The company was previously charged with Shaik but the charges were
dropped on the first day of the Shaik trial.
Moynot's 90-page affidavit
formed the basis of Thint's application that the case against it be permanently
struck off the court roll in compliance with its constitutional rights. The
state had applied for an adjournment of the trial to next year. Alternatively,
Thint has requested that the charges against it be dropped in terms of section
342 of the Criminal Procedure Act ["unreasonable delays in trials"].
affidavit - bolstered by a supplementary affidavit by Christine Guerrier,
in-house legal counsel to Thales in France - marks the first time that the story
of the deal struck by Maduna and Ngcuka on the one hand, and Thales on the
other, has been told in such detail.
The infamous "encrypted fax"
written by a Thint employee, Alain Thetard, then Thint's South African director,
was found by Judge Hillary Squires to have been proof that Shaik arranged with
Thint for Zuma to be paid a bribe of R500 000 a year to "protect" Thint from the
arms deal investigation. Judge Squires was presiding at last year's trial of
Shaik, Zuma's erstwhile business adviser.
The fax was one of the major
pillars of Squires's finding that Shaik and Zuma had a "generally corrupt
Moynot said that in April 2004 Robert Driman, then
Thint's attorney, Guerrier, Ajay Sooklal, Thint's present attorney, and Moynot
met Maduna and Ngcuka at Maduna's home.
Maduna allegedly told the gathering that the state was not interested in
prosecuting Thint or, for that matter, Thetard: the state's focus was on
"According to Dr Maduna," Moynot said on Monday,
"Thales and Thint were considered by the South African
government to be making a useful contribution to the development and improvement
of the economy through their association with [the Shaik/Thint company] ADS and
the furtherance of the government's policy on black economic empowerment.
This being the case, Maduna was prepared, he said [according
to Moynot], to withdraw the charges and the warrants of arrest in relation to
Thetard, who had been charged in connection with the encrypted fax.
According to Moynot, Ngcuka said he agreed with Maduna, and would
withdraw the charges against Thetard and Thint if Thetard provided an affidavit
in which he confirmed that he was the author of the fax.
attorney, asked Kessie Naidu, SC, now acting for Thint, to draw up an agreement
to that effect with Ngcuka. This was done, Thetard provided the state with the
affidavit it had requested and Ngcuka withdraw the charges against Thetard in
"Though I was advised that the agreement
with Ngcuka did not have the effect of an indemnity against prosecution,"
Moynot said, "I was confident that Thint would never be re-indicted" because of
Maduna's assurances and Ngcuka's withdrawal of the warrants of arrest.
"He would hardly have encouraged us to expand our
business interests … if he or Ngcuka entertained the slightest intention
… of prosecuting us.
"The very fact that the state, represented by
Ngcuka … required an innocuous and most unhelpful piece of
evidence … in exchange for the withdrawal of the charges against [us], is
in itself an indication that the charges were withdrawn because the decision was
taken by Ngcuka … on the recommendation of Dr Maduna … and that [the state]
would not charge [us] in the future."
But, said Moynot, the state, 20
months later, did charge Thint. That the state had chosen to do so "present[ed]
a shocking display of blatant arbitrariness, indecisiveness and a failure to act
expeditiously, consistently and fairly", Moynot said.
revealed that in February last year, in the middle of the Shaik trial, and
despite the agreement and the withdrawal of the charges, the state issued a warrant of arrest against Thetard, whom it
suspected was in Johannesburg.
"One does not have to possess the genius of a rocket scientist to appreciate the debilitating
effect such a state of affairs would have had on Thetard if
he had been hauled into court 'in prison clothes' *2 [despite the
agreement]," said Moynot.
With acknowledgements to Jeremy Gordin and Sunday Independent.
*1 As if making a contribution
towards development and improvement of the economy through their association
with [the Shaik/Thint company] ADS and the furtherance of the government's
policy on black economic empowerment is a justification for bribing the second
highest official in the country.
What's more, the bribe was not for
getting the contract, but protecting a piece of dog manure from
As Moynot says in his affidavit, there was no indemnity
from prosecution and the deal was only in respect of the Shaikh
Also Thetard was expected to assist the prosecution and to give
evidence on behalf of the prosecution in the Shaikh trial. He refused to do
This is all contained in Moynot's affidavit.
But what Moynot
conceals from the court is that Thetard then furnished a follow-up affidavit
wherein he denies that the contents of the first affidavit mean what the words
appear to mean at face value, i.e. that the fax recorded a bribery arrangement
with Zuma as facilitated and witnesses by Shaikh.
So the slimy Frenchman
Thetard tricked the gullible Dr Maduna and Adv Ngcuka into agreeing to withdraw
charges against his company Thomson-CSF and himself in his personal
So when one is tricked one comes back with a certain
But an equally important question is :
But although the situation was partly recovered
by the new NDPP, Maduna and Ngcuka were two serious assess in being tricked so
simplistically by this slimiest of
- On what authority is the Minister of Justice and National Director of Public
Prosecutions agreeing to withdraw charges against a foreign entity and
individual who are clearly implicated in massive criminality and the undermining
of the integrity of the Republic of South Africa?
- Surely the entities could agree to become state witnesses who the trial
judge could then award lighter or nominal sentences for their
*2 It does not take the genius of a
rocket scientist to appreciate that in this case Thetard should be being hauled
into court 'n prison clothes in order to give evidence - because he should
already have been sentenced to 15 years incarceration along with his
co-conspirator Schabir Shaikh in the previous trial.
And, unlike with
Shaikh, in Thetard's case he would not be languishing about outside prison
waiting for an appeal to be heard, because Thetard has already proven himself to
be a flight risk and would definitely have skipped the country.