What is it that "Silver Fox" Kessie Naidu told former justice minister Penuell Maduna and Scorpions boss Leonard McCarthy about the "encrypted fax" detailing Jacob Zuma's alleged bribe demand -- but that neither will disclose?

Affidavits, filed by both sides in the court battle over when, if at all, the African National Congress deputy president's corruption trial should start, detail extraordinary off-the-record negotiations between the state and French arms group Thales.

These negotiations resulted in the withdrawal of corruption charges against one of Thales's local subsidiaries, Thint. Then prosecutions boss Bulelani Ngcuka had brought the charges against Thint as Schabir Shaik's co-accused. The state, however, gained nothing but two short affidavits from former Thint director Alain Thétard -- the one undermining the other -- and a great deal of embarrassment.

Swathes of detail about the off-the-record meetings are now on the record as Thales has challenged the decision by Ngcuka's successor, Vusi Pikoli, to reinstate charges, as Zuma's co-accused, against Thint.

Two solitary exchanges, however, no one is putting on the record. Naidu, the flamboyant advocate representing Thales's interests, supposedly made separate admissions about Thétard's encrypted fax to Maduna and McCarthy. The fax allegedly recorded Zuma's request to Thétard that the French arms company pay him an annual R500 000 bribe. It was accepted as key evidence in the Shaik trial.

The negotiations between the state and Thales were initiated, according to affidavits by Ngcuka and Maduna, during a 2003 London trip. This was after South African authorities had formally requested French authorities to question Thétard and others.

Ngcuka states that they were approached by an intermediary. "We were informed that Thales/Thint were prepared to cooperate with our investigation," said Ngcuka.

Ngcuka and McCarthy travelled to Paris in about July that year, but "all our inquiries were met with the refrain 'we do not know'". Ngcuka travelled to Paris again in September 2003. On the version of Thint official Pierre Moynot, Ngcuka met with Thétard, saying he was "under pressure" and asking for confirmation of the bribe agreement. Ngcuka left empty-handed.

Later, Thales/Thint made another approach to Maduna, which resulted in a meeting at his home. Ngcuka also attended. Although Moynot's version differs from that of Maduna and Ngcuka, it is common cause that Thales/Thint's role as an investor in South Africa was discussed, and that the basis was laid for Ngcuka's withdrawal of charges against Thint.

According to Moynot, Maduna said "it was imperative for the 'French' to pursue their business interests in South Africa and to continue to be encouraged to make major investments". Maduna denies he recommended the charges be withdrawn.

It is common cause, however, that Ngcuka was amenable to withdrawing the charges -- as long as Thétard made an affidavit confirming that he had authored the encrypted fax. This, the prosecuting authority clearly thought, would help overcome the evidentiary problem of whether the fax was what it purported to be. In the state's version, however, this was only the start of more extensive cooperation they expected from the French.

In April 2004, Ngcuka and McCarthy met Naidu, representing Thales/Thint. Agreement was reached that Ngcuka would withdraw the charges should Thétard "verily" confirm his authorship of the Zuma fax. He did so in a short affidavit confirming only that fact.

The next month, however, Thétard made a second affidavit in which he called the fax "a rough draft of a document in which I intended to record my thoughts on separate issues in a manner which was not only disjointed, but also lacked circumspection". Thétard, in other words, was claiming that even though he had written the fax, it was not what it seemed to be.

In Maduna's version, this was "a cynical attempt to sabotage the state's case", while Ngcuka says in his affidavit that "Thétard and his representatives were leading the [prosecuting authority] up the proverbial garden path".

Ngcuka stuck to his end of the bargain nevertheless, dropping the charges at the time. This led to considerable embarrassment for the prosecuting authority, which had let off an alleged co-conspirator in return for "cooperation", which turned out to be limited and contradictory.

Before Thétard's second affidavit was handed to the prosecuting authority Naidu and Maduna met again at the latter's home. In Maduna's version "Naidu made a certain report to me regarding the so-called encrypted fax and the events of March 11 2000 [when Zuma, Shaik and Thétard allegedly agreed on the bribe]. This report differed materially from the version Thétard subsequently recorded in his second, unsolicited statement."

Maduna did not divulge the contents, saying he would not break the confidentiality of the meeting, "more especially as [the details] might be prejudicial to the accused in the criminal trial" -- code that Naidu had confirmed that his client, Thales/Thint, had in turn confirmed the bribe agreement.

McCarthy says in his affidavit that after this he met Naidu in Durban. There Naidu told him that "Thétard was teetering on the edge of making a full disclosure". Naidu "made a report to me that he said was in the strictest confidence". Like Maduna, McCarthy did not divulge the contents.

With acknowledgement to Stefaans Brümmer and Mail & Guardian.