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In the High Court of South Africa (Durban and Coast Local Division) |
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In the matter between : |
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The State |
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and |
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Schabir Shaik |
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Accused 1 |
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Nkobi Holdings (Pty) Ltd |
Hereinafter also referred to as Nkobi Holdings |
Accused 2 |
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Nkobi Investments (Pty) Ltd |
Hereinafter also referred to as Nkobi Investments |
Accused 3 |
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Kobifin (Pty) Ltd |
As represented by Schabir Shaik |
Accused 4 |
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Kobitech (Pty) Ltd |
As represented by Schabir Shaik |
Accused 5 |
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Proconsult (Pty) Ltd |
As represented by Schabir Shaik |
Accused 6 |
Pro Con Africa (Pty) Ltd |
As represented by Schabir Shaik |
Accused 7 |
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Kobitech Transport System (Pty) Ltd |
As represented by Schabir Shaik |
Accused 8 |
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Clegton (Pty) Ltd |
As represented by Schabir Shaik |
Accused 9 |
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Floryn Investments (Pty) Ltd |
As represented by Schabir Shaik |
Accused 10 |
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Thint (Pty) Ltd |
Formerly known as Thomson-CSF SA (Pty) Ltd |
Accused 11 |
The State alleges that the accused are guilty of the following crimes :
COUNT 1:
CORRUPTION in contravention of section 1(1)(a) read with section 3 of the Corruption Act, No 94 of 1992.
In the first alternative
Contravention of section 424(3) read with section 424(1) and 441(1)(d) of the Companies Act, No 61 of 1973
In the second alternative
Contravention of section 226(4)(b) read with section 226(1)(a)(i), 226(2)(a) and 441(1)(e) of the Companies Act, No 61 of 1973
COUNT 2:
FRAUD
In the first alternative:
THEFT
In the second alternative (as separate counts)
SUBCOUNT 1: Contravention of section 104(1)(c) read with section 104(2) of the Income Tax Act, No 58 of 1962
SUBCOUNT 2: Contravention of section 284(4)(a) read with section 284(1) and 441(1)(d) of the Companies Act, No 61 of 1973
Alternatively
Contravention of section 250(1) read with section 250(2) and 441(1)(e) of the Companies Act, No 61 of 1973
COUNT 3:
CORRUPTION in contravention of section 1(1)(a)(i) read with section 3 of the Corruption Act, No 94 of 1992.
In the first alternative
MONEY LAUNDERING in contravention of section 4(a) and /or (b), read with sections 1, 4(i), 4(ii) and 8 of the Prevention of Organized Crime Act, No 121 of 1998 -
In the second alternative
ACQUISITION, POSSESSION OR
USE OF PROCEEDS OF UNLAWFUL ACTIVITIES in contravention of section 6(a), (b) or (c), read
with sections 1 and 8 of the Prevention of Organized Crime Act, No 121 of 1998
A. THOMSON-CSF/THALES/THINT GROUP
The Group
1. The French Thomson-CSF (hereinafter referred to as ‘Thomson-CSF’) group of companies has global industrial interests, including interests in the international arms industry.
2. Thomson-CSF was later renamed the Thales group of companies.
3. Thomson-CSF International (France), which later became Thales International, is a division within the Thomson-CSF group. Thales International in its turn has a subsidiary Thales International Africa Ltd (Mauritius).
Thomson Holdings
4. On 21 May 1996, Thomson-CSF Holding (Southern Africa) (Pty) Ltd (hereinafter referred to as ‘Thomson Holdings’) was incorporated in South Africa to promote the development of South African industry by entering into joint ventures.
5. Thomson Holdings had an authorized share capital of 100 ordinary shares at a nominal value of R1000.00 per share. On 27 May 1996, 85 shares were issued to Thomson-CSF (France), 10 shares to Nkobi Investments (see below) and 5 shares to Gestilac SA (Switzerland).
On 9 June 1998, the authorised share capital was increased with 17 000 1% redeemable non-cumulative preference shares at R1 000.00 per share and 14 450 shares were issued to Thomson-CSF (France).
On 26 July 1999, Gestilac SA transferred its 5 ordinary shares in Thomson Holdings to Thomson-CSF (France) for $1 000.00 (R6 145.00). On 27 July 1999, Thomson-CSF (France) transferred its 90 ordinary shares to Thomson-CSF International (France) for R90 701.98. The effect of these transactions was that Thomson-CSF International (France) and Nkobi Investments became the only shareholders in Thomson Holdings.
Also on 27 July 1999 Thomson-CSF (France) transferred 14 450 preference shares to Thomson-CSF International (France) for R14 554 679.00.
On 16 September 1999, the authorised share capital was increased with 22 412 ordinary shares at R1 000.00 per share. On 29 September 1999, 22 412 ordinary shares were issued to Thomson-CSF International (France). On 30 September 1999, Nkobi Investments transferred its 10 ordinary shares to Thomson-CSF International (France) for R500 000.00. The effect of this transaction resulted in Thomson Holdings being wholly owned by Thomson-CSF International (France).
On 4 April 2001, Thales International (formerly Thomson-CSF International), transferred 22 512 ordinary shares and 14 450 preference shares to Thales International Africa Ltd (Mauritius), the latter company thereby replacing the former as sole shareholder of Thomson Holdings.
6. Thomson Holdings changed its name to THINT Holding (Southern Africa) (Pty) Ltd on 23 October 2003.
7. Accused 1 was a director from the date of incorporation in 1996 to 30 September 1999, when he resigned from the board. Alain Thétard (hereinafter referred to as “Thétard”) was appointed as a director on 1 April 1998.
Thomson (Pty)
8. On 16 July 1996 Thomson-CSF (Pty) Ltd (accused 11) was incorporated in South Africa, also to promote the development of South African industry by entering into joint ventures.
9. Thomson Holdings has been the majority shareholder and Nkobi Investments the minority shareholder since 1 August 1996 when 70 shares were issued to Thomson Holdings and 30 to Nkobi Investments. On 16 September 1999 the share capital was increased and on 29 September 1999 shares were issued to Thomson Holdings and Nkobi Investments to cause Thomson Holdings to become the owner of 75% and Nkobi Investments 25% of Thomson (Pty).
10. Thomson (Pty) changed its name to THINT (Pty) Ltd on 19 August 2003.
11. Accused 1 has been a director since the date of incorporation in 1996 to date. Thétard was appointed as a director on 1 April 1998.
B. THE NKOBI GROUP
Nkobi Holdings
12. Nkobi Holdings (Pty) Ltd (accused 2) was registered on 27 February 1995 as a holding company. It was initially wholly owned by accused 1. The shareholding went through various permutations subsequently. The current shareholders are:
i. Star Corp SA (Pty) Ltd (60%),
ii. Clanwest Investments (Pty) Ltd (20%),
iii. Floryn Investments (Pty) Ltd (10%) (accused 10), and
iv. Workers College (10%).
Star Corp is in its turn wholly owned by accused 1 and he also has an interest in Clanwest Investments. Accused 1 therefore has an effective majority shareholding in Nkobi holdings, whose only kown investment is Nkobi Investments.
Floryn Investments is ostensibly wholly owned by accused 1. Accused 1 purports to hold the shares as nominee or cedent for the African National Congress, making the latter, from the point of view of Accused 1 and/or the Nkobi group, a 10% shareholder in Nkobi Holdings.
Nkobi Investments
13. Nkobi Investments (Pty) Ltd was registered on 24 February 1995 as an investment company. It was initially wholly owned by accused 1. The shareholding went through various permutations until, on 20 August 1998, Nkobi Holdings became the sole shareholder.
14. As described above, Nkobi Investments had an initial minority shareholding in Thomson Holdings. In addition it had, and continues to have, a minority shareholding (25%) in Thomson (Pty).
Accused 4 to 8
15. Accused 4 to accused 8 are all entities within the Nkobi group, being 100% owned by Nkobi Investments. (There are a number of other entities within the Nkobi group.)
Accused 9 and 10
16. Accused 1 is the sole shareholder of accused 9 - Clegton Investments (Pty) Ltd.
17. Accused 1 is the sole shareholder of accused 10 - Floryn Investments (Pty) Ltd, which in its turn is a 10% shareholder of accused 2 - Nkobi Holdings. As described above, accused 1 purports to hold the shares as nominee or cedent for the African National Congress
18. Accused 1 was and remains a director of all the corporate accused and exercises effective control over the Nkobi group and also accused 9 and 10.
C. AFRICAN DEFENCE SYSTEMS (PTY) LTD
19. African Defence Systems (Pty) Ltd (hereinafter also referred to as ADS) was first registered in 1967 under another name. After a history of various owners, Thomson-CSF (France) acquired 7 000 001 shares on 14 April 1998, to become a joint shareholder with Allied Technologies Ltd. On 19 February 1999 Allied Technologies Ltd transferred its shareholding in ADS to Thomson-CSF (France). On 9 June 1999 Thomson-CSF (France) transferred its shareholding in ADS to Thomson-CSF International (France). On 15 September 1999 Thomson-CSF International (France) transferred its shareholding in ADS to Thomson (Pty) (80%) and FBS Holdings (Pty) Ltd (20%).
D. ZUMA
20. Jacob Zuma (“Zuma”) was a member of the KwaZulu-Natal legislature and the Minister of Economic Affairs and Tourism from May 1994.
21. In terms of section 136 of the Constitution of the Republic of South Africa, 1996, Zuma as a member of the executive council of a province, may not have-
(a) undertaken any other paid work;
(b) acted in any way that is inconsistent with his office, or exposed himself to any situation involving the risk of a conflict between his official responsibilities and private interests; or
(c) used his position or any information entrusted to him, to enrich himself or improperly benefit any other person.
22. Zuma was appointed as Deputy President of the Republic of South Africa, Leader of Government Business in Parliament and a member of the National Assembly of Parliament on 17 June 1999. The Code of Conduct in Regard to Financial Interests, as adopted by the Joint Meeting of the Rules Committees of the National Assembly and the Senate on 21 May 1996, applied to him in this capacity. In terms of paragraph 1.1, Zuma was duty bound to maintain the highest standards of propriety to ensure that his integrity and that of the political institutions in which he serves are beyond question. In terms of paragraph 1.2, Zuma was duty bound not to have placed himself in a position which conflicts with his responsibilities as a public representative in Parliament, nor may he have taken any improper benefit, profit or advantage from the office of Member.
23. In terms of section 96(2) of the Constitution of the Republic of South Africa, 1996, Zuma as a member of the cabinet may not have-
(a) undertaken any other paid work;
(b) acted in any way that is inconsistent with his office, or exposed himself to any situation involving the risk of a conflict between his official responsibilities and private interests; or
(c) used his position or any information entrusted to him, to enrich himself or improperly benefit any other person.
24. Zuma, by virtue of the various offices he held, had the powers and/or duties attendant to such offices.
E. ZUMA’S FINANCIAL BENEFIT FROM THE ACCUSED
25. Accused 1 and/or the corporate accused have benefited Zuma in the period 1 October 1995 to 30 September 2002 in the amount of R1 340 078.01, as set out in the schedule (hereinafter referred to as the schedule benefits). This is by way of payments from accused 1 and/or the various corporate accused to Zuma and various parties for the benefit of Zuma.
26. On 28 February 1999 an amount of R1 282 027.63 was irregularly written off in the Nkobi accounting records (Kobifin (Pty Ltd)) under the description of development costs of Prodiba. This included an amount that was paid to Zuma. The balance represented amounts that accused 1 and accused 10 owed to the Nkobi group. This resulted in the misrepresentation of the 1999 Annual Financial Statements of Kobifin (Pty) Ltd, in that accounts receivable or director’s and/or related third party loans were understated. Alternatively, retained income was overstated.
27. Also on 28 February 1999, a non-distributable reserve was created against a loan account of Nkobi-IT (Pty) Ltd. The development costs amounting to R1 282 027.63 were finally written off against the non-distributable reserve. The annual financial statements reflect the net amount of the non-distributable reserve i.e. R2 217 972.00 as a “surplus” on disposal of work share in Prodiba (Pty) Ltd.
28. The payments to Zuma make no legitimate business sense, in that neither accused 1 nor the Nkobi group could afford the payments, being at all times in a cash-starved position relying on and at times exceeding bank overdrafts and thus effectively borrowing money from banks at the prevailing interest rates to make the said payments interest free. On the other hand, the group’s survival depended upon obtaining profitable new business, inter alia, with the assistance of Zuma.
29. In the period 1999 to 2000, the accused agreed to pay Zuma the amount of R500 000 per annum (hereinafter referred to as the annual benefits) as a bribe in exchange for Zuma’s protection and support of the accused for future projects. These annual payments were to continue until the first payment of dividends by ADS.
30. At a stage in 2000 Kobifin (Pty) Ltd (accused 4) entered into a so-called “service provider agreement” with Thomson-CSF International Africa Ltd in Mauritius as a device to conceal or disguise the true nature and source of the payment of the bribe. In terms of the agreement, remuneration was to be a total of R1 million, in instalments of R250 000. The first two instalments were due before the end of December 2000 and on 28 February 2001 respectively.
31. Zuma needed funds to pay for the development of his traditional residential village estate at Nkandla in rural northern KwaZulu-Natal. Plans for the development were dated March 2000. The development commenced in approximately July 2000. The final tender amount agreed to was R1 340 000 (after the development was commenced with). The development was finalized during March 2001. Various arrangements were made during the construction and subsequently to provide finance on Zuma’s behalf. At no stage during construction and thereafter has Zuma been able to settle the outstanding amount or obtain finance without the assistance of third parties, including arrangements for payment through the accused in accordance with the agreement to disguise payments to Zuma.
32. On 16 February 2001, R249 725.00 was transferred from Thales International Africa – Mauritius to the ABSA current account of Kobitech (Pty) Ltd (accused 5) as a first payment in pursuance of the abovementioned scheme.
33. Within eight days, on 24 February 2001, Kobitech (Pty) Ltd paid Development Africa R250 000 as part of the scheme.
34. At the same time, Kobitech (Pty) Ltd issued three post-dated cheques, with numbers sequential to the first paid cheque of R250 000, each also in the amount of R250 000 and each in favour of Development Africa.
35. On 19 April 2001 Kobitech (Pty) Ltd requested ABSA Bank to stop payment on the three cheques each for R250 000 in favour of Development Africa.
36. On 4 September 2001 Accused 1 received a deposit of R175 000 from Kobitech (Pty) Ltd. On 5 September 2001 a cheque to the value of R125 000 was drawn against Accused 1’s account in favour of Development Africa. On 17 September 2001 a further cheque of R125 000 was drawn against Accused 1’s account in favour of Development Africa.
37. The schedule and/or annual benefits received and/or to be received by Zuma as aforementioned from or on behalf of Accused 1 and/or the other corporate accused, as set out above, constituted benefits which were not legally due to Zuma.
38. The payments made to Zuma, who would not otherwise have been able to meet his liabilities and fund his excessive expenditure, were corruptly made in furtherance of an ongoing scheme to influence Zuma to use his office or position to advance the accuseds’ private business interests and/or reward Zuma.
General
39. Accused 1 made it clear that Nkobi’s role in joint ventures with other partners was to provide political connections (as opposed to financial backing or technical expertise) and everybody understood that the political connection was so strong from accused 1’s side that there was no need for Nkobi to provide the money or the expertise. Accused 1 accords specific prominence to his relationship with Zuma in promotional material relating to the Nkobi group.
Joint ventures between the Thomson and Nkobi groups
40. Shareholders agreements were entered into between the Thomson and Nkobi groups on 22 May and 17 July 1996. In terms of these agreements, Thomson was bound to conduct its business in South Africa through Thomson (Pty) and thus effectively in partnership with Nkobi.
41. Consequently, Thomson and Nkobi were joint venture partners (together with Denel) in obtaining the award of the contract for drivers’ licences during 1996 – 1997 (the Prodiba joint venture).
42. There were a number of joint ventures and possible future joint ventures between Nkobi and Thomson, including Durban airport, the ID card contract, the N3 and N4 road projects, the third cellular telephone network, the arms deal set out below and other military deals, and smart card technology.
The Arms Deal
43. In the design for the South African Defence Force, which was recommended in the Defence Review, military equipment types were identified as being required by the Force.
44. In order to procure the said military equipment, requests for information were submitted during or about September 1997 to various other countries, and upon receipt of such information, requests for offers were issued to short listed potential suppliers.
45. The process to procure the various types of equipment was generally known as the Strategic Defence Package Acquisition Programme, or the arms deal.
46. In response to the request for offers, inter alia for corvettes, the German Frigate Consortium submitted an offer dated 11 May 1998 to supply the corvettes. The German Frigate Consortium included Thomson CSF NCS (France) and ADS.
47. Offers were also received from the other short-listed parties. The German Frigate Consortium bid was eventually approved as the preferred bidder by the South African cabinet on 18 November 1998.
48. Despite the shareholders’ agreement between Thomson and Nkobi, Thomson’s participation in the German Frigate Consortium was initially structured in such a way as to exclude Nkobi from the joint venture, in that the Thomson interest in ADS was at that stage owned by Thomson-CSF (France), in which latter entity, Nkobi did not have an interest.
49. Nkobi regarded its initial exclusion from the arms deal extremely negatively and sought to rectify the situation, inter alia, with the assistance of Zuma.
50. With the assistance of Zuma, the dispute between Thomson and Nkobi was resolved on 18 November 1998. In terms of the agreement reached on 18 November 1998, Thomson-CSF (France) would sell to Nkobi Investments, through Thomson (Pty), an effective shareholding in ADS. The result of this was that Nkobi Investments would become a joint venture partner with Thomson in the German Frigate Consortium and so joined the successful bidder in the corvette bid. The ADS portion of the corvette contract was worth R1,3 billion, with R450 million coming directly to ADS and the balance going to sub-contractors. In the result, the shareholders in the Nkobi group stood to benefit from profits arising from the corvette contract.
51. The actual transactions involving the sale of shares were registered in 1999. The most relevant transaction is that of 15 September 1999, when Thomson-CSF International (France) transferred 25 500 000 shares in ADS to Thomson (Pty), giving Thomson (Pty) 80% of ADS and consequently Nkobi Investments an indirect 20% interest in ADS.
Protection against investigations pertaining to alleged irregularities in respect of the arms deal
52. During November 1998, the Defence Audit Centre of the Office of the Auditor-General identified the procurement of the Strategic Defence Package Acquisition Programme as a high-risk area from an audit point of view and decided on the need to perform a special review of the procurement process. On 28 September 1999 the Minister of Defence, MPG Lekota, approved the Auditor General’s audit review into the procurement process.
53. Questions relating to alleged irregularities in the Strategic Defence Package Acquisition Programme arose from September 1999. These were raised in the press and Parliament. Allegations of corruption in respect of the award of the contract for the corvette programme were raised in the media from February 2000.
54. As the matter progressed, the South African government eventually faced requests to appoint the Heath Special Investigation Unit to investigate irregularities relating to the arms deal. The Heath Special Investigation Unit was a statutory agency mandated to investigate irregularities.
55. There was a perception on the part of the accused that it would be in their interests to be protected against such investigations. As mentioned above, the bribe of R500 000 per annum was in exchange for Zuma’s protection.
56. In a letter dated 19 January 2001, written in his capacity as “Leader of Government Business” in Parliament, Zuma wrote addressed a long letter to Gavin Woods, then chairperson of the Parliamentary Standing Committee on Public Accounts. It included the contention that there was no need for the Heath Unit to be involved in any investigation of the arms deal.
Furthering other private business interests of the accused
57. Accused 1 and the Nkobi group sought to secure business partners and business opportunities by trading on accused 1‘s political connectivity. The accused relied on Zuma’s name and assistance in negotiations or communications with or in respect of (inter alia) the following :
a. David Wilson of
the Renong Group of Malaysia
b. Peter Watt of
Altron
c. Deva Ponnoosami
and Professor John Lennon
d. Thomson-CSF France
e. Kuwaiti
businessman Fouad Alghanim
f. The establishment of an Nkobi Bank
g. Jeffrey Crane of
Crane (Africa)(Pty) Ltd
h. The chairman of
United Bank for Africa PLC – Hakim Belo-Osagie
i. Grant Scriven of Venson PLC
The provisions of section 332 (1), (2), (3), (4), (6), (10) and (11) of Act 51 of 1977 are applicable to the accused.
NOW THEREFORE the accused are guilty of the crime of corruption in contravention of section 1(1)(a) of the Corruption Act, No 94 of 1992
IN THAT during the period 1 October 1995 to 30 September 2002 and at or near Durban in the district of Durban, the accused unlawfully and corruptly gave the abovementioned schedule benefits, which were not legally due, to Zuma, upon whom the powers had been conferred and/or who had the duties as set out in the preamble, with the intention to influence Zuma to commit and/or omit any act in relation to his powers and/or duties to further the interest of the accused and/or the entities associated with the accused as set out in the preamble and/or with the intention to reward Zuma because he so acted in excess of such powers or any neglect of such duties, as set out in the preamble
(in terms of section 156 of Act 51 of 1977 only against accused 1)
That accused 1 is guilty of contravening section 424(3) read with section 424(1) and 441(1)(d) of the Companies Act, No 61 of 1973
IN THAT during the period 1 October 1995 to 30 September 2002, and at or near Durban in the district of Durban, the business of accused 2 to 10 was carried on recklessly or with intent to defraud creditors of accused 2 to 10 or creditors of any other person or for any fraudulent purpose
IN THAT accused 2 to 10 as described in the Preamble directly or indirectly made the payments in the amounts as set out in the schedule to accused 1 and/or Zuma
AND IN THAT the said payments make no legitimate business sense, in that accused 2 to 10 were ostensibly not in the business of making payments to politicians and in that the Nkobi group could not afford the payments, being at all times in a cash-starved position relying on bank overdrafts and thus effectively borrowing money from banks at the relevant interest rates to make the said payments interest free, as set out in the preamble
AND IN THAT accused 1 was unlawfully and knowingly a party to the carrying on of the business in the manner aforesaid.
IN THE SECOND ALTERNATIVE TO COUNT 1
(in terms of section 156 of Act 51 of 1977, only against accused 1 to 10)
That accused 2 to 10 are guilty of contravening section 226(4)(b) read with section 226(1)(a)(i), 226(2)(a) and 441(1)(d) of the Companies Act, No Act 61 of 1973
IN THAT during the period 1 October 1995 to 30 September 2002, and at or near Durban in the district of Durban, accused 2 to 10 directly or indirectly made the loans in the amounts, as set out in the schedule, to accused 1, being a director of accused 2 to 10, without the prior consent of all the members of accused 2 to 10, as applicable in each case, or in terms of a special resolution relating to the specific transactions
AND IN THAT accused 1, being a director of accused 2 to 10 as set out in the preamble, unlawfully authorized and/or permitted and/or was a party to the making of the loans as aforesaid.
(in terms of section 156 of Act 51 of 1977, only against accused 1 to 10)
AND THEREFORE the accused are guilty of the crime of fraud
IN THAT during or about the period February 1999 to early 2000 and at or near Durban in the district of Durban, the accused unlawfully and with the intent to defraud, falsely and to the prejudice, either real or potential, of the shareholders and/or directors and/or accountants and/or creditors of the corporate accused 2 to 10 and/or of the Nkobi group, and/or the Receiver of Revenue, and/or the South African Revenue Service
Gave out to the aforesaid persons and/or entities that an amount of R1 282 027.63 that was written off in the Nkobi books (Kobifin (Pty) Ltd) on 28 February 1999, as set out in the preamble, was development costs of Prodiba; and/or
Failed to reveal to the abovementioned persons and/or entities, when there was a legal duty so to reveal, that the abovementioned write-off had the net effect of extinguishing certain of accused 1’s and/or accused 9’s and/or accused 10’s and/or Zuma’s supposed debts in the books of the Nkobi group, as described in the preamble.
IN THE FIRST ALTERNATIVE TO COUNT 2
(in terms of section 156 of Act 51 of 1977, only against accused 1)
That accused 1 is guilty of the crime of theft
IN THAT during or about the period February 1999 to early 2000 and at or near Durban in the district of Durban, the accused unlawfully and intentionally stole the aforementioned amount of R1 282 027.63, being the property of Kobifin (Pty) Ltd and/or the Nkobi group, and/or the shareholders of the aforesaid Kobifin (Pty) Ltd and/or the Nkobi group.
IN THE SECOND ALTERNATIVE TO COUNT 2 (AS SEPARATE COUNTS)
SUBCOUNT 1
(in terms of section 156 of Act 51 of 1977, only against accused 1 to 10)
That the accused are guilty of the crime of contravening section 104(1)(c) read with section 104(2) of the Income Tax Act, No 58 of 1962
IN THAT during or about the period February 1999 to early 2000 and at or near Durban in the district of Durban, the accused wrongfully and unlawfully and with the intent to evade or to assist any other person to evade assessment or taxation, prepared or maintained or authorized the preparation or maintenance of any false books of account or other records or falsified or authorized the falsification of any books of accounts or other records
IN THAT the aforementioned amounts as set out in the preamble, were irregularly written off under the description, development costs of Prodiba.
SUBCOUNT 2
(in terms of section 156 of Act 51 of 1977, only against accused 1 to 10)
That the accused 1 to 10 are guilty of contravening section 284(4)(a) read with section 284(1) and 441(1)(d) of the Companies Act, No Act 61 of 1973
IN THAT during or about the period February 1999 to early 2000 accused 2 to 10 unlawfully failed to keep in one of the official languages of the Republic such accounting records as are necessary fairly to present the state of affairs and business of accused 2 to 10 and to explain the transactions and financial position of the trade and business of accused 2 to 10
IN THAT the aforementioned amounts as set out in the preamble, were irregularly written off under the description development costs of Prodiba; and/or
IN THAT the accounting records failed to reveal, in circumstances where it should have been revealed, that the abovementioned write-off had the net effect of extinguishing certain of accused 1’s and/or accused 9’s and/or accused 10’s and/or Zuma’s supposed debts in the books of the Nkobi group, as described in the preamble
AND IN THAT accused 1 unlawfully was a party to such failure and/or failed to take all reasonable steps to ensure compliance by accused 2 to 10.
ALTERNATIVELY TO SUBCOUNT 2
(in terms of section 156 of Act 51 of 1977, only against accused 1)
That accused 1 is guilty of contravening section 250(1) read with section 250(2) and 441(1)(e) of the Companies Act, No 61 of 1973
IN THAT during or about the period February 1999 to early 2000 accused 1 unlawfully falsified and or made false entries in any book, register, document, financial record or financial statement of any company, to wit accused 2 to 10
IN THAT the aforementioned amounts as set out in the preamble, were irregularly written off under the description development costs of Prodiba; and/or
IN THAT the accounting records failed to reveal, in circumstances where it should have been revealed, that the abovementioned write-off had the net effect of extinguishing certain of accused 1’s and/or accused 9’s and/or accused 10’s and/or Zuma’s supposed debts in the books of the Nkobi group, as described in the preamble.
AND THEREFORE the accused are guilty of the crime of corruption in contravention of section 1(1)(a)(i) of the Corruption Act, No 94 of 1992
IN THAT during the period 30 September 1999 to 2001 and at or near Durban in the district of Durban, the accused unlawfully and corruptly agreed and/or offered to give and/or gave the abovementioned amounts of R500 000 annually, as described in the preamble, which were not legally due, to Zuma, upon whom the powers had been conferred and/or who had the duties as set out in the preamble, with the intention to influence Zuma to commit and/or omit any act in relation to his powers and/or duties to further the interest of the accused and/or the entities associated with the accused, as set out in the preamble.
IN THE FIRST ALTERNATIVE TO COUNT 3
That the accused are guilty of contravening section 4(a) and/or (b), read with sections 1, 4(i), 4(ii) and 8 of the Prevention of Organized Crime Act, No 121 of 1998
WHEREAS the accused knew or ought reasonably to have known that property [to wit : the amount of R500 000 per annum, as described in the preamble], was or formed part of the proceeds of unlawful activities [to wit : the crimes or contraventions of the law mentioned in the main charge]
In that during the period 30 September 1999 to 2001 and at or near Durban in the district of Durban, the accused, acting in the furtherance of a common purpose, wrongfully and unlawfully entered into an agreement or engaged in an arrangement or transaction and/or performed any other act with one or some or all of the other accused in connection with the said property [to wit : the agreements, arrangements, transactions or other acts mentioned in the preamble relating to the so-called service provider agreement and/or the Nkandla development]
Which had or was likely to have had the effect -
(i) of concealing or disguising the nature, source, location, disposition or movement of the said property or the ownership thereof or any interest which anyone may have in respect thereof, and/or
(ii) of enabling or assisting one or some or all of the other accused who had committed or were committing an offence, whether in the Republic or elsewhere [to wit : the offence mentioned in the main charge] -
(aa) to avoid prosecution, and/or
(bb) to remove or diminish the said property acquired directly, or indirectly, as a result of the commission of the said offence.
IN THE SECOND ALTERNATIVE TO COUNT 3
That the accused are guilty of contravening section 6(a), (b) or (c), read with sections 1 and 8 of the Prevention of Organized Crime Act, No 121 of 1998
WHEREAS the accused knew or ought reasonably to have known that property [to wit : the amount of R500 000 per annum, as described in the preamble] formed part of the proceeds of unlawful activities of another person [to wit : the crimes or contraventions of the law mentioned in the main charge]
In that during the period 30 September 1999 to 2001 and at or near Durban in the district of Durban, the accused, acting in the furtherance of a common purpose, wrongfully and unlawfully acquired, used, or had in their possession the said property, as described in the Preamble.
INVESTIGATING DIRECTOR :
DIRECTORATE OF SPECIAL OPERATIONS
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