Publication: Sunday Independent Issued: Date: 2007-03-25 Reporter: Jeremy Gordin

Judge Left with a 'Lot to Think About' in Zuma Case

 

Publication 

Sunday Independent

Date

2007-03-25

Reporter

 Jeremy Gordin

Web Link

www.sundayindependent.co.za

 

It was all very serious, but if we had watched it in a cinema, many of us would have thought the movie makers had gone Kafkaesque.

This week, Jacob Zuma, the former deputy president, and Thint, the local arm of giant French arms manufacturer Thales - each represented by a senior and a junior counsel, and by an attorney - spent one-and-a-half days in the Pietermaritzburg high court trying to persuade Phillip Levinsohn, the deputy judge president of KwaZulu-Natal, that he should not comply with a request by the National Prosecuting Authority (NPA) that he write to the Mauritian authorities asking them to release the originals of 13 purportedly incriminating documents.

But the NPA, represented in court by a senior counsel and two juniors, and by two senior investigators, already has copies of the documents, one of which is a page or pages from a diary kept by Alain Thetard, a former Thint executive. The document reportedly relates to a meeting in Durban at which Thetard, Schabir Shaik and Zuma were present *1.

Copies of the documents were used in the successful prosecution in 2005 of Durban businessman Shaik on charges of corruption and fraud, for which he was sentenced to 15 years in jail.

Billy Downer, for the state, explained to Levinsohn that when the state's case against Zuma and Thint on charges of corruption and fraud was struck off the roll last year in the same court room by Judge Herbert Msimang, the judge told the state it needed to do its homework properly before charging Zuma and Thint.

Getting hold of the originals of the documents was part of that homework, Downer said.

What Downer did not say - though it is clear from the hundreds of pages of affidavits and heads-of-argument that have been entered as part of this matter - was that it was Thales in Mauritius that was responsible for obtaining the injunction in the Mauritian courts in 2001 that prohibited the release of the original documents. And it is this injunction that the NPA is asking Judge Levinsohn to persuade the Mauritians to lift.

If Zuma and Thint are recharged, they will argue that mere copies of the Mauritius documents are inadmissible as evidence, so Downer, though he did not say so explicitly, wants the originals.

The NPA's attempts to gain possession of the originals made it obvious, said Kemp J Kemp, Zuma's lead counsel, that the state was preparing to recharge Zuma and Thint. If it were not, asking Levinsohn to write to the Mauritian authorities would be a waste of the court's time, he said.

If the state were preparing to recharge Zuma and Thint, why did it not say so, asked Kemp *2.

Downer would not say if the state was planning to recharge Zuma and Thint.

During his presentation on Thursday, and in his summing up on Friday morning, Downer said that the state had arranged with the Mauritian authorities in 2001 for enquiries to be made into certain of Thales' business practices. It was in preparation for these enquiries that a search-and-seizure raid had been carried out on the company's premises in Mauritius. Copies of some of the documents seized were brought to South Africa.

"All sorts of conspiracy theories have been attributed to us about those copies," said Downer.

"We held a search-and-seizure raid during which certain documents, as defined by a judge's order, were seized. They were copied so that we could prepare questions. Soon after that, all the documents were sealed following a court action by Thales."

Nirmal Singh, for Thint, said that Judge Levinsohn should not assist the state in obtaining the original documents from Mauritius because the NPA had not followed the correct procedures in obtaining the copies. Singh said the NPA's behaviour in obtaining the copies was not acceptable.

Kemp said that, in his view, the proceedings were a waste of time because the 2001 injunction was the result of a legal action in Mauritius. If the NPA wanted to have the injunction lifted, he said, it should go before the Mauritian courts and argue its case.

Kemp said that a letter from a South African high court judge to the Mauritian courts would be of no more than academic interest.

"If I understand you correctly, Mr Kemp," said Judge Levinsohn, "you are saying that a letter from me would be viewed as an artificial instrument by the Mauritians."

"Yes, milud. We ought not to be here," replied Kemp.

Judge Levinsohn said it was clear that he had "a lot to think about".

He said he would deliver his judgment "in due course".

With acknowledgements to Jeremy Gordin and Sunday Independent.


*1       This is a legal fact, admitted in evidence in court on the basis of a copy of the diary, the admissibility of which was not challenged.


*2      Because it is not required to do so.