Affidavit to the Constitutional Court says prosecuting team has finalised a draft indictment based on old and new evidence, writes ERNEST MABUZA

NEW evidence released by the state on Friday has claimed that African National Congress deputy president Jacob Zuma received further payments of close to R2,8m from convicted fraud Schabir Shaik up to 2005.

According to court papers lodged by the state with the Constitutional Court on Friday, these revelations were contained in the documents seized by the Scorpions from Zuma’s homes and offices and his lawyers offices.

Shaik was convicted two years ago for making corrupt payments to Zuma of R1,2m up to September 30 2002.

The new evidence obtained by means of the contested search warrants reveal s that possible charges against Zuma have grown from the two charges of corruption on which his former financial adviser, Schabir Shaik, was convicted.

In its affidavit opposing Zuma’s application for leave to appeal to the Constitutional Court against the Supreme Court of Appeal judgment, which found the warrants valid, the Scorpions senior special investigator Johan du Plooy said the prosecuting team had finalised a draft indictment based on all the available evidence, both old and new. “This process … was completed by December 11 2007 and the National Prosecuting Authority is currently considering the matter as a whole with a view to taking a decision on prosecution.”

Du Plooy said the new evidence obtained during and after the Shaik trial, though as yet untested in a trial, was substantial and affected the essence of any future prosecution. He said that whereas Shaik and the Nkobi companies were convicted for making corrupt payments to Zuma up to September 2002 for the amount of R1,2m, new documents revealed that alleged corrupt payments continued to at least June 2005 in the aggregate amount of R4m for the period of 1995 to June 2005.

Du Plooy said the 229 payments discovered for the period 1995 to September 30 2002 and presented in evidence in the Shaik trial totalled R1,2m. With the new documents, there were 354 payments for the same period in the aggregate of R2m.

“In other words, further substantial payments total ling more than R800000 had not been discovered on the basis of the old documents,” he said.

Du Plooy said new documents showed Zuma fraudulently failed to declare to the South African Revenue Service, Parliament and the secretary of the cabinet — to all of whom he owed duties of disclosure — the gross income which he received by way of the payments.

“The evidence currently available to the state suggests that Mr Zuma did not declare taxable income of some R2779514,20 and evaded taxation of some R1167971 over the period 1995 to February 2004 (the end of the 2004 tax year). This aspect of the investigation is continuing.”

Du Plooy said the analysis of the new documents together with the old had cast new light on the events concerning Nkobi’s and French arms company Thint’s acquisition of an interest in African Defence Systems, which gave them an entrance into the arms deal and its resulting profits.

“The new documents also identify new sources of income (new projects) for the Nkobi group about which investigations were necessary to determine if and the extent to which Mr Shaik relied on his political connectivity and in particular his relationship with Mr Zuma.”

Du Plooy said those investigations and the analysis of the old and new documents revealed Zuma’s involvement, or Shaik’s use of his name, in a significantly greater number of instances than originally discovered and proved at the Shaik trial.

“The trial court dealt with some four such instances which tended to show that Mr Zuma corruptly provided assistance to Mr Shaik, the Nkobi group and (in one instance) Thint. There are now some 28 instances which tend to show such assistance,” Du Plooy said.

He said the accumulation of all the new evidence obtained as a result of the 2005 searches, with the consequent re-analysis of the old documents and evidence, provided a firm basis to institute a prosecution.

Du Plooy said further analysis of all the documents reinforced and expanded the state’s understanding of the essential nature of the Nkobi group’s business.

“Mr Shaik viewed and relied upon political connectivity as the key attribute of its business. The price was corruption. In any future prosecution it will consequently be alleged that the Nkobi group was an enterprise whose business was carried on through a pattern of racketeering activity as defined in and proscribed by the Prevention of Organised Crimes Act.”

Du Plooy said the state would further claim that Nkobi’s employees or associates, among them Zuma and Thint, took part in the conduct of the business through a pattern of racketeering activity.

Du Plooy said it was legitimate for the prosecution to gather evidence to bolster their case even when they had enough to secure a conviction. Du Plooy also disagreed with Zuma’s assertion that the warrants were not intelligible.

The state also opposed Zuma’s application against the Supreme Court of Appeal decision concerning a letter request issued by a Durban High Court judge to Mauritian authorities to transmit 14 documents. The state required those documents as evidence in any prosecution of Zuma and Thint that might occur.

Du Plooy said the issuing of the letter of request would not adversely affect or determine any of Zuma and Thint’s rights.

“New documents revealed that alleged corrupt payments continued to at least June 2005 in the aggregate amount of R4m from 1995 to June 2005”.

With acknowledgements to Ernest Mabuza and Business Day.