Publication: Sunday Independent Issued: Date: 2006-08-06 Reporter: Jeremy Gordin Reporter:

Ngcuka, Maduna Pledged No Charges, says Thint



Sunday Independent




Jeremy Gordin

Web Link


French arms company charged with corruption alleges top-level betrayal

The 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"].

The 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 relationship".

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 prosecuting Shaik.

"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. *1"

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.

Driman, Thint's 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 May 2004.

"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.

Moynot also 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 investigation.

As Moynot says in his affidavit, there was no indemnity from prosecution and the deal was only in respect of the Shaikh trial.

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 so.

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 capacity.

So when one is tricked one comes back with a certain vengeance.

But an equally important question is :
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 co-operation.

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 Frenchmen.

*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.