Publication: Mail and Guardian Issued: Date: 2006-11-09 Reporter: Sam Sole Reporter:

A Road Map for the Case against Zuma

 

Publication 

Mail and Guardian
Date

2006-11-09

Reporter

Sam Sole

Web Link

www.mg.co.za

 

"I can’t believe it,” Shabir Shaik reportedly exclaimed after the Supreme Court of Appeal (SCA) dismissed his petition against conviction on two counts of corruption and one of fraud. “Boom, boom, boom; one, two, three: they didn’t uphold anything. All the lawyers were wrong about what was going to happen.”

Shaik’s tragic surprise should sound a deep warning to ANC deputy president Jacob Zuma. The National Prosecuting Authority investigation is a legal juggernaut that has now arrived at his door -- and he should regard the reassurances of his advisers with due scepticism.

Predictably, Zuma’s supporters have argued that the SCA decision on Shaik has no impact on Zuma. Cosatu spokesperson Patrick Craven insisted: “Zuma and Shaik are not the same person and each has a right to be tried completely independently.”

That is true, but the SCA ruling has effectively provided a roadmap for the prosecution of Zuma and, in some ways, the judgement is more damaging to him than Judge Hilary Squires’s original verdict, which led to his dismissal from government.

Firstly, while Squires’s background as a former justice minister in Rhodesia provided some purchase for critics, the SCA panel of judges that squarely and unanimously supported Squires’s ruling is not open to such criticism. Secondly, the way in which the SCA treated the admissibility of the notorious “encrypted fax” must give Zuma’s lawyers pause.

This fax was the secret memo that Alain Thétard, the local boss of French arms company Thomson, wrote to his superiors concerning a meeting he had with Zuma and Shaik.

In the words of the SCA: “On the face of it he was saying that Shaik had requested Thomson to pay an amount of R500 000 per annum … that the payment would be in return for protection of Thomson during the arms deal investigations and in return for the permanent support of Zuma in respect of future projects; that he, Thétard, had asked Shaik to obtain from Zuma confirmation of the request; and that Zuma had done so in encoded form.”

Because Thétard refused to come to South Africa to give evidence, the contents of the fax became hearsay, which is only legally admissible under defined conditions. This was one area where the SCA gave the state a rough ride during argument, creating speculation that this crucial piece of evidence might be rejected. Instead, the SCA found that it was in the interests of justice for the fax to be admitted. Crucially, there is virtually nothing in the court’s reasoning on this issue that would not also apply fully to a case against Zuma.

While the SCA found it unnecessary to decide, as Squires had done, that Zuma must have been aware of the offer of payment, the appeal judgement does conclude that Thétard’s discussions with Zuma and Shaik must have led him to firmly believe that Zuma was willing to take a bribe. This is likely to be devastating to Zuma. *1

“The content of the fax, being incriminating, had it fallen into the wrong hands, could have had very serious adverse consequences for Thétard, Shaik and Zuma.

“A false intimation to his [Thétard’s] superiors could also have had very serious adverse consequences for them, should they have proceeded to give effect to the requested bribe, wrongly thinking that Zuma was amenable to receiving a bribe …

“It is for this reason highly unlikely that he [Thétard] would have exposed himself, Shaik, Zuma and his superiors to these dangers had it not been necessary to do so. It is in fact almost inconceivable that he would have advised his superiors that he understood the then Deputy President to have agreed to receive a bribe if that was not his understanding of what had happened at the meeting …

“Being a sensitive matter with inherent attendant dangers and a matter that his superiors were intended to act upon, it is also likely that Thétard would have taken great care accurately to reflect his understanding of what the request by Shaik was.”

A further headache for Zuma is the fact that the SCA looked more closely at his role in the relationship with Shaik than Squires did. The lower court was quite careful to emphasise that Shaik, not Zuma was on trial, and its finding of a “generally corrupt relationship” between the two was based on the reasoning that Shaik must have foreseen that his series of payments to Zuma had to create a sense of obligation in Zuma.

In its judgement, the SCA has sought to bolster this conclusion by looking more closely at what Zuma actually did for Shaik. The SCA’s scrutiny of four interventions by Zuma, which the prosecution had alleged were made in Shaik’s favour and in exchange for payments from Shaik, offer a taste of the case Zuma will have to answer if he is re-charged.

On the key intervention admitted by Shaik -- Zuma’s meeting with Thomson in London to restore Thomson’s faith in Shaik’s Nkobi group as an empowerment partner acceptable to government and the ANC -- the SCA swept aside the defence’s claim that this was an unexceptional endorsement of Nkobi’s BEE credentials.

Instead the SCA stated: “It is clear that what Shaik wanted Zuma to do was to act in conflict with his constitutional duty. He was asked, against the background of the past and ongoing payments made to him or on his behalf, to go and speak to the French to assure them that Nkobi was acceptable to the ANC government and thereby to regain a vital asset for Nkobi.”

Up to that point Thomson had decided to exclude Nkobi from ADS, its South African subsidiary that would have a lucrative slice of the corvette contract under the arms deal.

The SCA continues: “This was something no commercial competitor would have been able to procure. In the language of the Constitution Shaik wanted Zuma to undertake paid work; he wanted Zuma to act in conflict between his official responsibilities and his private interests; and he wanted Zuma to use the opportunities of his position as MEC to enrich himself, or improperly to benefit Shaik.”

The judgement is similarly scathing about letters apparently signed or sent by Zuma at Shaik’s insistance to secure advantage for Nkobi in Durban’s Point Waterfront development and a proposed tourism school.

It also looks closely at the way in which Zuma’s assistance was used to secure a meeting with then safety and security minister Steve Tshwete for one of Shaik’s business partners. In particular, the SCA draws a damning inference from Shaik’s aggressive letter to the minister when nothing came of the meeting.

“When Shaik realised that the meeting had been fruitless he wrote Tshwete a letter of stern rebuke. Read in the light of all the other evidence it reveals what confidence Shaik drew from his relationship with Zuma. Effectively, it shows the authority with which Shaik could speak knowing he had Zuma’s backing.”

The SCA’s conclusions about Shaik’s modus operandi seem to imply that Zuma must have been aware of the dynamic of their relationship: “He [Shaik] was brazen and often behaved aggressively and threateningly, using Zuma’s name to intimidate people, and particularly potential business partners, into submitting to his will. He sought out people eager to exploit Zuma’s power and influence and colluded with them to achieve mutually beneficial results.”

In effect, the SCA has found that Shaik’s abuse of the relationship with Zuma was clear to almost everyone who came into close contact with him. The onus is now going to be on his close friend and presidential hopeful Jacob Zuma to explain how he remained blind to this abuse and, indeed, to refute the evidence that he colluded in it.

'He's not setting an example to the country'

“I don’t see him going to jail after they [NPA] failed to put him into jail after all these years.” -- Albino Msimango (85), retired

“He’s not setting an example to the country. You have to be ethical, you have to set an example, you cannot be corrupt. I think he’s guilty and he’s just been lucky to get off.” -- Beverley Richards (50), communication consultant, Randburg

“If he’s found guilty then he should give up his political ambition. If there is sufficient evidence then they should go through the process and see if there is a valid case to be made against him.” -- Michael Adsetts (32), account manager, Randburg

“He should still pursue his political career till the outcome of his case. But because he has been implicated, he should be investigated just like the French arms company is being investigated. If you accept the bribe you are just as guilty as the person who is offering the bribe.” -- Kavir Magan (21), second-year law student at Wits, Hyde Park

'He can still perform his job'

“I don’t see a reason why he should not pursue his political ambitions. For what he has done, it doesn’t change who he is or anything about him. He can still perform his job. Whatever he has on him, it still does not affect the goodness in him.”-- Nolundi Mgoduka (23), student, Parkmore

“Some Xhosas in the ANC want to maintain a Xhosa legacy by preventing a Zulu [Zuma] from leading the party. If Zuma loses the case, people would be very hurt. But I don’t think that could lead to a civil war between ethnic races.” -- Phumlani Maphumulo (34), unemployed

“Everybody make his or her own mistakes at some point in life. Why should the court subject him [Zuma] to a severe sentence?” -- Portia Moroke, general worker

“It is evident that there was a corrupt relationship since the appeal was thrown out of court that suggests that there was something. If I was him I’d bow out with grace before the race starts getting dirty.” -- Morena Sithole (28), business development adviser, Morningside

“I don’t see myself supporting a president eyasoloko iquq’amatyeleni [always going to court trials]. The problem with him [Zuma] is that he thinks he’s up there and that, no matter what happens, people would still support him,” -- A street sweeper, who asked not to be named and photographed

“I think he should be taken out of the race for presidency. Bad people who corrupt the law pay for the consequences and so should he. He was doing under-table deals. If we are trying to clean up Parliament, why should he still be there? I don’t think there is much investigation done on him, because when you’re in power you can get away with everything. How many ordinary citizens people get out of cases?” -- Shaun Herbert (34), restaurant owner, Durban

'No, no, no, he is not guilty'

“I think the [Shaik ruling] will affect Zuma because maybe Shaik will tell everything. Maybe Zuma is corrupt, I can’t say for sure. He should still run for president because he can do everything with politics, like putting water where there is a shortage, he looks after the poor. Each and every South African wants Zuma to be president, I want Zuma to be president.” -- Sakhile Nala (28), a security guard formerly from Nkandla

“No, no, no, he is not guilty. I think Zuma should run for president. I like him because he has respect for other people. He is supporting the poor people, he gives food parcels for sick people, he is not an isigebengu [thief].” -- Anne Goge (33), a cleaner, and Princess Ntuli (43)

“Let Shaik rot. If Zuma gets nailed, good. He is not presidential material. He is selfish. All he does is make a whole lot of promises to people, which he can’t keep. Most of the people believe in him because many people are not educated and don’t realise that he is only looking out for his own selfish interests. Maybe he can start a business in jail with Shaik selling sharpened toothbrushes and other weapons to jail dwellers.” -- Kim Stewart, student, Glenwood

“I have an Islamic view on it: basically, whatever you sow, you reap. We do feel a betrayal to Islam because of what [Shaik] did, and based on that I feel he should be punished. If there is a corruptor, then there must be a corruptee, there must be two people. I think Zuma should help him if he can.“ -- Reshad Mohammed (48), a shopkeeper, Verulam

“We don’t think Schabir Shaik should get straffed [sentenced], because Zuma didn’t get straffed -- they should have got them together. If Shaik is guilty, then Zuma is also guilty ... I don’t think that Zuma should run for president, because it will give a very bad impression of the country.” -- Ronnie Jacobs (55), unemployed, Sydenham, and John Smith (61) unemployed, New Germany

“When your case is thrown out of the court, it means that you are not guilty whether the [merits] of the case were discussed or not. What do they want from him [Zuma]? ... For the fact that he was elected deputy president of the ANC and the country speaks volumes about his leadership capabilities. Obviously, he’s 100% fit to be our next president *2.” -- Rojas Chauke, street vendor

With acknowledgements to Sam Sole and Mail and Guardian.


*1      And more so for Thint.


*2      Obviously?