Publication: Mail and Guardian Issued: Date: 2009-01-16 Reporter: Matuma Letsoalo Reporter: Adriaan Basson Reporter: Stefaans Brümmer Reporter: Mandy Rossouw

ANC’s Plan to Save Zuma

 

Publication 

Mail and Guardian
Date

2009-01-16
Reporter Matuma Letsoalo, Adriaan Basson,
Stefaans Brümmer, Mandy Rossouw

Web Link

http://www.mg.co.za/



The ANC and its president Jacob Zuma are expected to spill the beans about other corruption in the arms deal when they make representations to the National Prosecuting Authority in the weeks ahead on why the charges against Zuma should be dropped.

The Mail & Guardian has established that the ANC intends to show the NPA that Zuma is small fry in the arms deal saga and that it is in possession of much more damaging evidence, including documentation that allegedly implicates former president Thabo Mbeki and Cope president Mosiuoa Lekota in wrongdoing.

High-profile legal teams hired by Zuma and the ANC also plan to: The ANC adopted this hard-line approach after Monday’s judgement by the Supreme Court of Appeal, which effectively reinstated corruption, fraud, racketeering and money-laundering charges against Zuma and threw out Judge Chris Nicholson’s finding that there had been political meddling in the case.

The M&G spoke to four senior members of the ANC’s national executive committee and a range of legal sources linked to the Zuma prosecution, who confirmed that a plea bargain with the state, involving an admission of guilt on at least some charges, is no longer an option.

It is understood that “serious talks” took place late last year between a Zuma representative -- thought to be Johannesburg senior counsel Nazeer Cassim -- and the NPA, during which the possibility of a plea bargain was explored.

But the talks were aborted when Zuma “decided to take his chances in court *3”, said the source.

Now that the Nicholson judgement has boomeranged, and with elections approaching, Zuma and the ANC want all 18 charges dropped.

“We’re saying, let’s look at all other possibilities, but not at plea bargains,” former Limpopo premier and NEC member Ngoako Ramatlhodi told the M&G this week.

It is understood that the ANC and Zuma will make separate representations to the NPA, with Zuma focusing on the 18 charges against him and why the state cannot prove his guilt.

It is understood that Cassim, assisted by attorney Michael Hulley, will engage the NPA on Zuma’s behalf.

The ANC has employed respected Johannesburg senior counsel Hilton Epstein to make representations on its behalf and has been advised extensively by former judge Willem Heath.

The ANC’s submissions will be two-pronged: proving to the NPA that Zuma’s role in the arms deal was minuscule and that prosecuting him will not serve the public interest.

Two senior NEC members confirmed that the ANC’s own report on arms deal corruption will form part of its submission to acting NPA head Mokotedi Mpshe.

The report clears Zuma of arms deal corruption, but implicates other senior ANC members, including Mbeki and some of his former Cabinet ministers *4.

“Our view is that many other comrades, including Mbeki, Terror Lekota and other Cabinet ministers *5, are implicated in the arms deal, but nothing was done about them. The question is: why is Zuma being singled out?” said an NEC source.

ANC treasurer Mathews Phosa said the party would raise the feeling that Zuma was being singled out.

“There’s a strong feeling that other characters were involved and should go to court as well *5,” Phosa said.

The party and Zuma’s legal teams were advised to submit to the NPA the names of those implicated in arms deal wrongdoings.

It is understood that the ANC will present to the NPA evidence of meetings between successful arms deal bidders and politicians, including an affidavit by South Africa’s former ambassador to the United States and France, Barbara Masekela.

Last year Masekela confirmed in an interview with the Sunday Times that she had arranged a meeting between Mbeki and arms company Thales in Paris. Mbeki maintains that he cannot remember the meeting.

Thales’s local subsidiary, Thint, is accused of bribing Zuma to protect the company against an arms deal investigation.

The ANC will try to convince Mpshe that if Zuma’s case continues it will destabilise the country, as highly sensitive information from both the ANC and the government would be revealed *7.

“The general feeling [in the ANC] is that, if the case continues, it will be devastating to the country,” said an NEC source.

A legal source added: “There’s a very strong legal principle, internationally and in South Africa, that one of the three stages of a prosecution must be the question of whether it’s in the public interest.

“What damage could be caused by prosecuting Zuma? How much more will it cost the state? And what other consequences could it have? You need to consider these,” said a legal source close to the case.

In his submission Zuma will inform the NPA of the basis of his defence on all charges *8. His legal advisers appreciate the risk implied, but said it was a “calculated” decision taken after weighing up “possibilities and problems”.

Said a legal source: “Zuma will have to give the NPA substantial information. He’ll have to prove he had no corrupt intent. They will need facts or circumstantial evidence, such as documents or a loan agreement *9.”

Convincing the NPA of his innocence on all 18 charges might prove difficult *10, as the prosecutors are known to be “absolutely” convinced of their case after the successful Shaik prosecution.

They have spent years working on the case and a voluminous forensic report was finalised by KPMG in 2006.

If his representations fail Zuma’s only options are to enact legislation prohibiting a sitting president from being charged or to hope that a sympathetic NPA boss *11 who will withdraw charges will be appointed to replace Vusi Pikoli.

With acknowledgements to Matuma Letsoalo, Adriaan Basson, Stefaans Brümmer, Mandy Rossouw and Mail and Guardian.


*1      This would only apply to the general corruption charge, of which there are about 700 sub-counts.

While it is possible that an ignoramus such as Zuma might have not thought that some of these payments had a criminal intent, this is incredible for all of them.

Regarding the Arms Deal itself, as early as July 1998 and in particular in December 1999, Zuma intervened specifically to assist Schabir Shaik to get the corvette combat suite contract, most importantly without competition. While as a public representative he should have known that such intervention was unlawful, but as that he was on a retainer from the aspirant contractor, that such unlawfulness was criminal. All the time Zuma was indeed an occult shareholder of Nkobi Holdings and of ADS. A share allocation had actually been made to him, but to hide this from the authorities these shares were in effect held through a special purpose vehicle, called Clanwest Investments (Pty) Ltd.

Much the same applies with other business interventions.


*2      The NPA has a duty to act with fear or favour or prejudice.

The only reason why it might not be in the public interest to prosecute to for the Accused and his supporters to civil mayhem if if is charged or convicted.

But this is a hollow threat.


*3      Well he should now do so - first week of February 2009.


*4      While the report will be very interesting and contain a lot of useful factual evidence, it is clearly self-serving.

It has one primary objective to arm wrestle with the NPA to abandon charges against its president.

But it will nevertheless be beautiful to behold.


*5      This is true, except for Lekota.

Lekota was involved in the changing of the Arms Deal investigation reports.

This might be viewed as defeating the ends of justice.

But I have never seen any shred of documentary evidence or even heard an allegation or even a rumour that Lekota was involved in criminality in the original SDPs Arms Deal.

Where his involvement need possibility be investigated is his attempt to invoke the 5th corvette option, but  to buy a helicopter landing ship instead of a a MEKO 200AS light frigate. But this deal has not been consumated and is therefore probably too early (or too late) for substantive allegations, let alone charges.

But one never knows with these persons.


*6      There’s a strong feeling that other characters were involved and should go to court as well.

We've been saying this for years.

One of them is Pierre Moynot, another is Thabo Mbeki, another is Chippy Shaik.

Inter alia.


*7      Absolute codswollop.

Sure this is sensitive to the individuals (persons both natural and juristic) concerned because it involves criminality and could affect their freedom.

If there is any information or evidence of a nature truly affecting national security, then this can both be severed from the main record and be dealt with in camera by the trial court.

This is simple another simplistic threat from the accused.

One of the possible instances of this is the dealings between Thabo Mbeki and Jacques Chirac concerning France's failure to secure any of the prime equipment contracts and Thabo's sop to Chirac to bump of the French share at the sub-system level: corvette combat suite, helicopter engines, helicopter radars, Hawk avionics, Identify Friend or Foe (IFF) for all systems, corvette and submarine navigation radars and a very earnest attempt at the entire submarine combat management system (thwarted by SA Navy).


*8      In effect this is going to be a mini-trial, albeit private and non-transparent with the NDPP as presiding officer.

But at the very least the entire proceedings should be with prejudice, recorded in totality and binding on the Accused.

If the request for abandonment of charges is granted, the entire record should be made public except where there might be true implications for national security.


*9      We know, because this was a finding of the Shaik trial, that Zuma could not furnish the court with the original of the "Loan Agreement" that Shaik claimed existed between them. Zuma's attorney Julie Mohamed claimed to have drawn up this agreement, but her evidence was implausible and incredible. An unsigned copy was produced as evidence and this was rightly rejected by the court. This actually indicates further fraud by Zuma, his assistants and Shaik.


*10     Convincing the NPA of his innocence on all 18 charges will be impossible.


*11     This cannot be lawful.

In fact, it might introduce a new crime.