Publication: Sunday Times
Issued:
Date: 2006-09-10
Reporter: Paddy Harper
Reporter:
This
was a week in which legal heavyweights squared up over the fate of presidential
hopeful
Something the Scorpions seized during their raids on Jacob Zuma and
his associates could be so damaging, so explosive,
that it could put a final nail into the embattled ANC
deputy president’s coffin.
This became crystal clear this week as his
defence team and that of his co-accused, Thint all but abandoned their conspiracy arguments and demands for a
speedy trial and focused on keeping the evidence out of
court.
After the 500-page forensic audit report was submitted to
the defence teams at the Pietermaritzburg High Court on Tuesday, the claims of a
political conspiracy against Zuma and an unlawful charging of Thint suddenly, in the main, fell
away.
The focus shifted more to the report which though not yet
a public document, and which will only become such if it is successfully led in
evidence by the prosecution was compiled by forensic auditor Johan van der
Walt and his team at KPMG between May and Tuesday.
It consists partly of
evidence used in the successful prosecution of Zuma’s financial adviser, Schabir
Shaik, also compiled in report form by Van der Walt’s team.
But it is
the rest of the evidence that is clearly giving Zuma and his
counsel sleepless nights: the mass of documents, computer disks, bank
records and other material seized in the raids on Zuma, his lawyers Michael
Hulley and Juleika Mohamed and other associates last August.
These
seizures were eventually declared unlawful, but the state is appealing this. A
simultaneous raid on premises of Thint Holding (Southern Africa) (Pty) Ltd and
Thint (Pty) Ltd was declared lawful, but Thint has indicated it will appeal this
decision.
Just what it is that the defence wants kept
out of court is still unclear, but Shaik indicated during his trial that
he continued making payments to Zuma until 2005. He refused to provide
details.
The prosecution argues that because appeals are pending in the
collateral applications it has every right to use the evidence from the raids.
Prosecutor Billy Downer SC argued that Judge Qed’usizi Msimang should allow
presentation of the evidence and rule on its admissibility.
He made it
clear that this new evidence would make up a significant part of the amended
indictment, which he promised would be ready by the deadline of October 15 if
Judge Msimang acceded to the state’s wish and granted an
adjournment.
Using the existing indictment a mirror image of the Shaik
charges of payments of R1.3-million to Zuma and a R500000-a-year bribe for Zuma
from Thint and adding fresh charges later would result in “two trials”, Downer
argued.
The defence teams were clearly mortified by
the idea. Zuma’s lead counsel, Kemp J Kemp SC, argued that the extended
investigation that resulted in the raids was illegal, while an adjournment would
be improper.
“An adjournment for the purpose of expanding the case would
be, in fact, one based on improper materials,” he said. “They acted illegally in
this prosecution ... what they want ... is a further opportunity to continue
with the investigations, putting documents together ... it is something of
significance.”
Kemp said he was quite happy to go to
trial with the existing indictment; another indication that the defence
is more troubled by what was taken in the raids.
Nirmal Singh SC, one of
Thint’s counsel, threw his weight *1 behind the move
to stop the evidence being admitted, arguing that the state had committed
“contempt” of the earlier court orders by both using the seized material and
giving it to KPMG to work with.
Much of his argument focused on the use
of documents seized in the Zuma/Hulley/Mohamed raids, rather than those seized
from Thint, a rather significant move on his part. In
effect, Thint seems to have become involved in bolstering
Zuma’s defence *2, despite or perhaps because of earlier indications
in court papers that Zuma wants a separation of trial in which he will be tried
first.
Both Thint and Zuma have asked Judge Msimang to both reject the
application for an adjournment and strike the matter from the roll. If granted,
this will allow them to push ahead with an application for a stay of
prosecution, the papers for which are already drafted.
This would allow
the defence to slam the door on any further bid to charge Zuma, and the details of just what the state harvested through the August raids
will never be made public.
With acknowledgements to Paddy Harper and Sunday Times.
*1 Legally-speaking, compared with Advocates Wim
Trengrove SC and William Downer SC, it's like comparing the proverbial elephant
with a flea.
*2 If Zuma goes, the Two Thint
go.
It's also why there is such a concerted effort in respect of the
application for leave to appeal the SCA in the Shaik matter - if Shaik goes,
Zuma goes and the Two Thints go.