Publication: The Citizen Issued: Date: 2007-02-14 Reporter: Paul Kirk Reporter: Werner Swart

Zuma Fights Application to Obtain Mauritius Arms Deal Documents

 

Publication 

The Citizen

Date

2007-02-14

Reporter

 Paul Kirk, Werner Swart

Web Link

 www.citizen.co.za

 

Even if former deputy president Jacob Zuma wins the battle against an application to obtain documents from Mauritius, expected to be used in new corruption charges being brought against him, it will not bring an end to the matter.

Head of the Department of International and Comparative Law at the University of South Africa, Professor Doctor Andrew Thomashausen, said he thought the answering affidavit brought by Zuma against the State's application was weak and "based on very technical arguments which are not overly strong."

Zuma's legal team filed the papers in the Durban High Court on Monday.

Thomashausen observed that International Co-operation on Criminal Matters (ICCM) allowed for South Africa to request information from another state for use in an investigation.

Zuma's papers argued that the National Prosecuting Authority (NPA) was not asking for information to use in an investigation, but instead wanted evidence to use in a prosecution. The NPA already has copies of the evidence held by the Mauritius High Court and used these copies in the prosecution of Schabir Shaik. The reason they were able to rely on copies in this case was that Shaik's legal team agreed to make these copies admissible as evidence.

Zuma and his co-accused, French arms manufacturer Thint, have declared they will only accept the originals. In what a senior source in the NPA has described as "a very cynical gamble" both Zuma and Thint have also taken steps to make sure the original copies stay in Mauritius. Said Thomashausen: "These documents were seized from the offices of Thint after the South African authorities asked the Mauritius authorities for assistance. Mauritius investigators then obtained a search warrant from the Mauritius High Court and seized documents from the Mauritius offices of Thint.

"However, after the searches were complete the originals were all retained by the Mauritius High Court. It is important to remember that Thint have also launched an application in the Mauritius High Court to have the originals returned to them... This is a battle on two fronts for the NPA... Zuma is fighting off the documents here in SA and Thint are fighting them off in Mauritius."

In his affidavit, Zuma questioned how the NPA, and leading State prosecutor Advocate Billy Downer, were obtained documents seized in the raid in Mauritius in 2001.

Referring to the affidavit used to grant the order, Zuma said it contained no request to hand over any documents, or make copies available.

Specifically referring to the role of Downer, who travelled to Mauritius at the time of the raids, Zuma said:

"Downer did not enter the premises, but waited outside and plainly provided input and assistance to the Mauritian authorities in the execution of the search and seizure order. I respectfully submit that it must have been, or at the very least ought to have been, apparent to Downer that his conduct in accepting copies of the documents seized at the various searches... was unlawful".

Mention is again made of the diary of Alain Thetard, Thint's former local boss, which is seen as crucial in the State's case against Zuma as it records a meeting between Zuma and Thint officials where a bribe was allegedly discussed.

In a letter by Downer to the Mauritian authorities, after the raids, Downer wrote: "It is particularly important that the diary be retained at all costs".

Hinting the State's case against him had been unfair, Zuma further slammed the NPA's conduct, stating: "Downer's phrase 'at all costs' is an appropriate summation of the State's attitude to the litigation against me. I respectfully believe that the prosecution has not been conducted with the objectivity required of a prosecution and that the State's attitude is to win at all costs".

Even if the documents are surpressed the state may still have the upper hand though. An NPA source told The Citizen that: "There is a point of law colloquially called the 'best evidence rule.' As a rule of thumb originals should always be used in court proceedings, however copies are also accepted in certain conditions".

The source explained: "First off copies of documents can be used if both sides agree to render them admissible - as happened in the Shaik trial.

"Secondly, they can be used if copies are the 'best evidence' available. If the originals are lost or destroyed then evidence can be led to that effect and the copies can be used. In this case we would have to show that we went to great lengths to obtain the copies but were thwarted."

Zuma said the State never implied it would need the documents from Mauritius, referring to the State's failed application for a postponement in his corruption trial in Pietermaritzburg last year.

Before Judge Herbert Msimang struck the matter from the roll, the State argued it needed more time as three critical matters were still outstanding.

These were the finalising of a KPMG forensic audit, the appeals against the lawfulness of certain seized documents and the appeal of Shaik.

Since then, Shaik's appeal failed in the Supreme Court of Appeal and the KPMG report had been finalised.

Zuma implied he could seek a permanent stay of prosecution in the event he is recharged.

The hearing into whether the papers are admissible is set down for March 22 before Judge Phillip Levinsohn.

With acknowledgements to Paul Kirk, Werner Swart and The Citizen.