STATE’S REPLY TO THE REQUEST FOR FURTHER PARTICULARS
IN TERMS OF SECTION 87 OF ACT 51 OF 1977

GENERAL

The schedule to the Indictment and the Summary of Substantial Facts has been amended. A copy of the amended schedule is attached (Annexure H to the KPMG Report). The amended schedule reflects 238 payments in the aggregate amount of R1 269 836.41. The State will not rely on payments 15, 32, 125, 127, 136 and 152 in an aggregate amount of R20 611.50. The aggregate amount on which the State will rely is thus R1 249 224.91, as the table below indicates.

Aggregate of schedule to the Indictment and Summary of Substantial Facts R1 269 836.41 Less :Aggregate of payments 15, 32, 125, 127, 136 and 152 of schedule to the Indictment and Summary of Substantial Facts R20 611.50 Aggregate amount on which the State will rely R1 249 224.91

Any reference hereunder to the schedule is the amended schedule and to the aggregate or total amount of the schedule is R1 249 224.91.

AD THE PREAMBLE

1. AD PARAGRAPH 25 THEREOF

1.1. The paying account holder and account number in respect of each payment is reflected (where the details are available) in the schedule to the Indictment and Summary of Substantial Facts. (Refer to columns C and D of the schedule) It should be noted that the schedule is the same document as annexure H to the KPMG report.

An additional schedule is attached hereto as annexure H1 that specifies the accused from whose bank accounts the payments were made, where this is known. (Refer to column D of annexure H1)

Those payments that cannot directly be identified as having been paid from the bank account of a specific accused are identified as such in column D of annexure H1 and marked unknown.

Payments identified in items 7, 10 and 12 of schedule H were made by Chartley Investments (Pty) Ltd, of which accused 1 is a director and shareholder. The State intends adding Chartley Investments (Pty) Ltd (as represented by accused 1) as accused 12. The formal application is attached herewith.

All global references in the Indictment and Summary of Substantial Facts to accused 1 to 10 must be understood to include accused 12.

Each payment, whether or not it can be identified as having been made from the bank account of a particular accused, was generated by and/or on the instructions of accused 1. In this sense, each payment was also made by accused 1.

In addition, the accounting treatment of the payments in the books and records of the corporate accused reflects that entries relating to some of the payments were also passed in the books and records of accused other than the paying accused, or that other entries relating to the payments were also passed in the records of the paying accused.

Columns J, Q, W, AC, AJ, AP and AV of annexure H1 reflect which accused were complicit in the payments in this way. Accused 1, 2, 4 to 10 and 12 are complicit in the payments in this manner.

1.2. Refer to columns E and G of annexure H1.

2. AD PARAGRAPH 26 THEREOF

2.1 Yes, according to the accounting treatment in the accounting records of accused 4. The various amounts making up the total amount of R1 282 027.63 were reflected in the following loan accounts in the accounting records of accused 4:

• “590/000: Loan Account – S Shaik”.

Inasmuch as accused 1 is a director, this constituted director’s loans.

• “580/120: Loan account - Clegton Investments (Pty)”
• “580/150: Loan account – Floryn Investments”

Inasmuch as Clegton (accused 9) and Floryn (accused 10) are third parties, and inasmuch as they are related to Kobifin (accused 4) in the sense that accused 1 is a director and shareholder of each of accused 4, 9 and 10, Clegton and Floryn are related third parties.

The forensic analysis of these loan accounts, however, reveals that there are amounts in each of the respective loan accounts that represented payments to or on behalf of Zuma. A schedule reflecting all items in the abovementioned loan accounts is attached as annexure H2. The items that originated as payments to or on behalf of Zuma are identified in column F of annexure H2 (and also identified in column AZ of annexure H1).

Here one should not lose sight of what the crux of the State case is on count 1, namely that the payments as reflected in schedule H1 constituted bribes. How the different accused treated these payments in the books of account does not detract from this fact and in fact largely constitutes evidence of this fact.

2.2

2.2.1. Refer to 2.1 above. The amount of R736 700.73 is recorded as a director’s loan account (accused 1).

2.2.2. Refer to 2.1 above. The amounts of R198 167.40 (accused 9) and R347 159.50 (accused 10) are recorded as third party loan accounts.

2.3 Director: accused 1. Related third parties: accused 9 and 10.

2.4 Refer to 2.1 above. R293 451.16.

2.5

2.5.1. Refer to 2.1 above. R736 700.73 as reflected in accused 1’s loan account, (see column N of annexure H2), but R713 550.05 (see column J of annexure H2) if the amounts paid to or on behalf of Zuma in this loan account, being R23 150.68 (see column F of annexure H2), are excluded.

2.5.2. Refer to 2.1 above. R347 159.50 as reflected in accused 10’s loan account (see column M of annexure H2), but R284 027.00 (see column H of annexure H2) if the amounts paid to or on behalf of Zuma in this loan account, being R63 132.50 (see column F of annexure H2), are excluded.

2.5.3. The State alleges that accused 9’s loan account of R198 167.40 (see column L of annexure H2) as reflected was also included in the amount of the write-off. No amount was owing by accused 9 (see column G of annexure H2), if the amounts paid to or on behalf of Zuma in this loan account, being R207 167.98 (see column F of annexure H2), are excluded.

2.6. Yes. R23 150.68.

2.7. Yes. R207 167.98 (accused 9) and R63 132.50 (accused 10).

2.8. No. In terms of the accounting records, the amounts were owed to accused 4 and Nkobi group is used in this sense.

3. AD PARAGRAPH 29 THEREOF

3.1 All the accused.

It is not alleged that it was a term of the agreement that any of the accused would directly pay Zuma. The agreement was that one or more of the Thomson-CSF entities or subsidiaries (including the then named Thomson-CSF International (France), Thales International Africa Ltd (Mauritius) and Thomson Holdings would provide the funds and so Thomson-CSF (as represented by Thetard and/or Perrier and/or de Jomaron) in this sense agreed to pay Zuma.

Here also, one should not lose sight of what the crux of the State case is on count 3, namely that the agreement in respect of the annual payments to Zuma was a bribe agreement. How the accused dealt with any funds paid as a result of or pursuant to this agreement does not detract from this fact and largely constitutes evidence of this fact.

The accuseds’ participation in the agreement includes the following:

Accused 1

The agreement was concluded through the intermediation of accused 1, both in his own interests, and in the interests of accused 2 to 11 and Zuma.

It was also an implied term of the agreement that accused 1 would facilitate the payments to Zuma as circumstances might dictate, including with the assistance of accused 2 to 10.

Accused 2 to 10

Inasmuch as the agreement was in the particular interests also of accused 2 and 3, as the beneficiaries of accused 3’s shareholding in accused 11, and in the general interests of accused 4 to 10, accused 1 also represented accused 2 to 10 in the agreement.

It was also an implied term of the agreement that accused 1 would facilitate the payments to Zuma as circumstances might dictate, including with the assistance of accused 2 to 10, in effect, his corporate alter egos, in accordance with the pattern of assistance that accused 2 and 4 to 10 had provided in the past in connection with other payments to or on behalf of Zuma.

In the abovementioned circumstances, accused 2 to 10 agreed to pay Zuma.

Accused 11

Inasmuch as the agreement was in the particular interests also of accused 11, as impliedly being included as a recipient of Zuma’s protection and support for future projects, accused 1 and Thetard also represented accused 11 in the agreement.

In the abovementioned circumstances, accused 11 agreed to pay Zuma.

3.2 The agreement was concluded in an ongoing series of related events over a period. The following events during the period mark the development of the agreement:

3.2.1. Accused 1 met Thetard on 30 September 1999 in Durban. At this meeting the issue of the payment was discussed.

3.2.2. At some time during the period 30 September 1999 to11 March 2000, and at a place unknown to the State, accused 1 arranged with Zuma to meet Thetard for the purposes of confirming the request for payment.

3.2.3. On 11 March 2000, accused 1, Thetard and Zuma met in Durban and Zuma confirmed the request.

3.2.4. Thomson-CSF, as represented by Thetard, Perrier and/or de Jomaron, agreed to pay Zuma the amount of R500 000 per annum at a precise date or dates unknown to the State, but during the period from, at the latest, 30 September 1999, (if not earlier) through 11 March 2000, and extending to the period thereafter when Perrier personally sanctioned the agreement in Paris at a meeting with accused 1.

3.2.5. It was a term of the agreement as it developed during the period and at the places mentioned above that payment to Zuma in terms of the agreement would not be direct, but that it would be disguised as circumstances might dictate as the payments were to be made.

3.2.6. The mechanism of the payment was thereafter agreed between accused 1 and Thetard, during the period 2000 to 2001, and at Durban on the part of accused 1, to be the arrangements in respect of the service provider agreement, as described in paragraphs 30 to 36 of the Preamble to the Indictment. The involvement of each of the accused is as follows:

Accused 1

3.2.6.1. During 2000 and at Durban, accused 1 entered into the service provider agreement (also on behalf of accused 4) with Thetard on behalf of Thomson-CSF International Africa Ltd (Mauritius).

3.2.6.2. In the period preceding 16 February 2001, accused 1 corresponded with Thetard and urged him to make the payment as agreed. The correspondence was conducted using the facilities and letterheads of accused 2 at Durban.

3.2.6.3. Accused 1 arranged with Thetard that the first payment was made to accused 5’s account on 16 February 2001 at Durban.

3.2.6.4. Accused 1 caused accused 5 to pay Development Africa as described on 24 February 2001 at Durban, to issue the post-dated cheques to Development Africa and to stop them on 19 April 2001.

3.2.6.5. Accused 1 caused accused 5 to pay him R175 000 on 4 September 2001.

3.2.6.6. Accused 1 paid R125 000 to Development Africa on 5 September 2001 and 17 September 2001 respectively for the benefit of Zuma in part settlement of Zuma’s obligation to pay Development Africa the total sum of R1 million.

Accused 2

3.2.6.7. Accused 2 provided its facilities to accused 1 to conduct correspondence with Thetard concerning the service provider agreement.

Accused 4

3.2.6.8. During 2000 and at Durban, accused 1 entered into the service provider agreement (also on behalf of accused 4) with Thetard on behalf of Thomson-CSF International Africa Ltd (Mauritius).

Accused 5

3.2.6.9. Accused 1 arranged with Thetard that the first payment was made to accused 5’s account on 16 February 2001 at Durban.

3.2.6.10. Accused 1 caused accused 5 to pay Development Africa as described on 24 February 2001 at Durban, to issue the post-dated cheques to Development Africa and to stop them on 19 April 2001.

3.2.6.11. Accused 1 caused accused 5 to pay him R175 000 on 4 September 2001.

Accused 2 to 10

3.2.6.12. Inasmuch as the agreement was in the particular interests also of accused 2 and 3, as the beneficiaries of accused 3’s shareholding in accused 11, and in the general interests of accused 4 to 10, accused 1 also represented accused 2 to 10 in the agreement relating to the mechanism of the payment of the annual benefits.

It was also an implied term of the agreement that accused 1 would facilitate the payments to Zuma as circumstances might dictate, including with the assistance of accused 2 to 10, in accordance with the assistance that accused 2 and 4 to 10 had provided in the past in connection with other payments to or on behalf of Zuma.

3.2.6.13. In the abovementioned circumstances, accused 2 to 10 were parties to the agreement to pay Zuma.

3.3 a. Oral; b. by other means of coded communication; c. implied from an encoded declaration and from the circumstances of the agreement; and/or by means of written correspondence, over the period as described in 3.2 above.

3.4 Accused 2 to 10 : Represented by accused 1

Accused 11 : Represented by accused 1 and Thetard.

3.5 Yes. Zuma was a party to the bribe agreement.

3.5.1. Zuma himself attended the meeting on 11 March 2000 and indicated his agreement. Accused 1 also represented Zuma at this meeting.

3.5.2. Accused 1 represented Zuma during the communications preceding and following 11 March 2000.

3.6. Full and precise details regarding the requested further particulars are not specified in the terms of the agreement, other than those details alleged in the Indictment and Summary of Substantial Facts. The State does not allege the agreement in terms any more specific than the agreement itself.

Nevertheless, the circumstances reveal that the general terms of the agreement may be further refined, but not limited to, the following.

3.6.1. Protection

The required protection was agreed to be in respect of Thomson-CSF during the current investigations that included investigations in respect of project SITRON.

It is alleged that this included accused 11.

It is also alleged that this impliedly also included accused 1 to 10.

Support

The required permanent support was for future projects, without specifying directly in respect of which accused or other party.

It is alleged that this impliedly included any future projects involving Thomson-CSF and thus accused 11, and also future projects involving some form of collaboration between Thomson-CSF and accused 11 on the one hand and any of accused 1 to 10 on the other hand.

3.6.2. The exact nature and extent of the protection that was agreed to is unknown to the State. In general, the agreement implied that Zuma should seek to use his positions of high office to shield the accused from the then current investigations and the consequences thereof in whatever manner.

3.6.3. The exact nature and extent of the support that was agreed to is unknown to the State. In general, the agreement implied that Zuma should seek to use his positions of high office to support the accused in whatever manner in relation to the accuseds’ future business projects.

3.6.4. It is not alleged that the agreement included Zuma’s protection for future projects.

It is not alleged that the agreement specified exactly which future projects required Zuma’s support.

In general, the agreement implied that Zuma should seek to support any of the accused’s future business projects, of whatever nature. It is alleged that this impliedly included any future projects involving Thomson-CSF and thus accused 11, and also future projects involving some form of collaboration between Thomson-CSF and accused 11 on the one hand and any of accused 1 to 10 on the other hand.

It is alleged that both the Thomson-CSF and the Nkobi groups envisaged future projects. Precisely which of these projects would require Zuma’s support is unknown to the State.

4. AD PARAGRAPHS 33, 34, 35 AND 36 THEREOF

Development Africa is a trust. Vivian Reddy is a trustee.

5. AD PARAGRAPH 38 THEREOF

Accused 1 to 11.

6. AD PARAGRAPH 39 THEREOF

Any of the entities within the Nkobi group, including accused 2 to 10. Accused 1 as a director and shareholder of accused 2 to 10 is also included.

7. AD PARAGRAPH 49 AND 50 THEREOF

7.1 Accused 1 to 3, and any of the other accused 4 to 10 that accused 1 intended to employ as vehicles to accommodate the group’s participation with Thomson in the arms deal.

7.2 Nkobi sought to achieve the situation that an Nkobi entity should have an effective (if not a direct) shareholding in ADS.

7.3 Thomson considered that it was necessary to obtain black empowerment partners to assist in achieving its goal of obtaining a slice of the arms deal. It was anxious that the partners it chose should meet the approval of the South African Government or more specifically the ANC leadership. In order either to succeed in a bid to sell the corvettes, or at least assure a successful bid in respect of the combat system and the sensors, it was also considered necessary to obtain Zuma’s approval for its choice of black empowerment partners, or at least for its choice of one of such partners.

Accused 1 also sought to rely on Zuma’s support to assist Nkobi to obtain an effective interest in ADS.

At some time during the period preceding 18 November 1998, Zuma signified his approval of Nkobi as an empowerment partner for Thomson. It is unknown to the State precisely when, where or in what form such approval was given during this period. The following events are included in the process whereby Zuma’s approval and support were sought and given:

7.3.1 Accused 1 signified to Perrier in letters dated 17 March 1998 and 12 May 1998 Zuma’s wish to meet Perrier.

7.3.2 Accused 1, Perrier and Zuma met in London on 2 July 1998.

7.3.3 On 18 November 1998, Zuma attended a meeting at the Nkobi offices between Nkobi and Thomson-CSF France. The subject matter of the meeting was the sale of 10% of Thomson-CSF France’s share in ADS, through accused 11, to accused 3.

Zuma was also there as a mediator to resolve the dispute between Thomson and Nkobi and to facilitate Nkobi (also in the promotion of empowerment) obtaining effective shareholding in ADS.

7.4. Zuma during this period was a member of the KwaZulu-Natal legislature and the Minister of Economic Affairs and Tourism. He was also a high-ranking member of the ANC leadership whom both Thomson and accused 1 perceived to be a rising political force, and also destined for the office of Deputy President of the Republic of South Africa.

Zuma acted in the abovementioned capacities.

8. AD PARAGRAPHS 54 AND 55 THEREOF

8.1. All the accused.

8.2. Accused 1 on behalf of accused 2 to 10. Accused 1 and Thetard on behalf of accused 11.

AD COUNT 1

9. Refer to 1.1 above.

10. Accused 1 acted on behalf of all the accused in the capacity of director. (Refer to 16 below for the details of the dates of incorporation and accused 1’s directorships.)

Thetard also acted on behalf of accused 11 in the capacity of director from the date of the commencement of his directorship on 1 April 1998.

11. General

It is not alleged that the payments listed in the schedule can be linked to any particular act or omission on the part of Zuma. The payments were made and received in order for the accused and those other entities referred to in the Preamble to benefit from Zuma’s powers relating to the public offices he held, alternatively as reward for Zuma having so exercised his powers.

The State is not party to precise and comprehensive particulars of the accuseds’ intentions, other than those alleged in the Indictment and Summary of Substantial Facts.

Nevertheless, the circumstances reveal that the general intention alleged may be further refined, but not limited to, the following.

11.1. Acts - Commissions

It is alleged that each payment was one of a series of payments that collectively and in furtherance of an ongoing scheme were intended to continue to secure Zuma’s influence to use his office or position to advance the accuseds’ and said other parties’ private business interests whenever the necessity or the opportunity arose. Zuma was effectively placed on a retainer.

The acts that Zuma was intended to commit may conveniently (and without limiting their generality) be categorized as follows:

11.1.1. In general, it was intended that Zuma should allow the accused to accord specific prominence to accused 1’s relationship with Zuma in promotional material relating to the Nkobi group and in any other form in which the accused conducted private business with third parties, such as correspondence and personal contacts. Zuma should allow the accused so to conduct business in furtherance of accused 1’s intention to rely on his political connections in order to attempt to facilitate contacts, contracts, tenders and other business dealings.

11.1.2. It was intended that Zuma should appoint and continue to retain accused 1 as Zuma’s “special economic adviser”, “financial adviser”, “personal adviser” and “special adviser”, and allow the accused also to use this connection with Zuma to further their private business interests as described above.

11.1.3. It was also intended that Zuma should make himself available to meet the accuseds’ business partners and potential business partners (if necessary even by traveling abroad) in order to promote the accused or signify, by his mere presence or otherwise, his approval and support for the accused as a business partner or potential business partner, or his approval for the accuseds’ intended business ventures.

11.1.4. It was also intended that Zuma should allow the accused to compose, to suit the accused, official correspondence between Zuma and potential business partners of the accused and that Zuma should sign such correspondence.

11.1.5. It was also intended that Zuma should allow the accused to threaten to withdraw Zuma’s support in those instances where his support had been obtained but where the conduct of the accuseds’ business dealings with business partners or potential business partners was not proceeding as the accused might wish.

11.1.6. It was also intended that Zuma should allow the accused to use Zuma’s name in order to cajole and/or bully third parties to act according to the accused’s wishes.

11.1.7. It was also intended that Zuma would offer his protection to the accused.

11.2. Acts - Omissions

The duties imposed upon Zuma in his various capacities by the Constitution of the Republic and the Rules Committees of the National Assembly are as described in the Preamble to the Indictment.

In all of the instances mentioned above in 11.1, it was intended that Zuma was to omit to act in accordance with such duties.

In each category of Zuma’s intended actions described above in 11.1, Zuma would have omitted to comply with his constitutionally imposed duty not to 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.

Similarly, each category of actions required Zuma to omit to comply with his duties imposed by the Code of Conduct, namely:

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 and 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.

In all of the instances mentioned above in 11.1, it was intended that Zuma should omit to accord equal treatment to any of the accuseds’ business competitors or potential business competitors and to provide such competitors with opportunities to enjoy the benefits of Zuma’s official sanction, equal to those provided to the accused.

12. It is alleged that it was intended that Zuma should commit acts and omit to do the acts that fall within all of the categories described in 11.1 and 11.2 above, in each respective period when he was a member of the KwaZulu-Natal Legislature, Minister of Economic Affairs and Tourism (KZN), Deputy President of the RSA, leader of government business in Parliament and member of the National Assembly of Parliament and in relation to those powers and duties conferred upon him by the position(s) which he occupied during such periods.

13. Refer to 11.1 above. It is alleged that it was intended to influence Zuma to use his office or position to advance all the accuseds’ private business interests of whatever nature whenever the necessity or the opportunity might arise.

The nature of the interests appears from 11.1 to 11.7 above.

14.1. Each action in the categories described in 11.1 to 11.7 above was committed in excess of Zuma’s powers in respect of each of the positions that he held, in that he was not permitted to favour the accused, being a private individual and private entities, as described in all the categories. Specific acts committed in excess of Zuma’s powers are as follows:

14.1.1. Permitting the accused to use Zuma’s name and position to further the accused’s private interests

Refer to 11.1.1 above and paragraphs 58 and 60 of the Summary of Substantial Facts.

It is evident that this act is pervasive and has continued throughout the period of the Indictment.

14.1.2. Point Development

Refer to paragraphs 61 to 77 of the Summary of Substantial Facts.

14.1.3. Eco-tourism school in KZN

Refer to paragraphs 79 to 82 of the Summary of Substantial Facts.

14.1.4. Approval of Nkobi as an empowerment partner for Thomson

Refer to 7. above.

14.1.5. Venson PLC

Refer to paragraph 90 to 91 of the Summary of Substantial Facts.

14.1.6. Appointing accused 1 as adviser and allowing accused 1 to rely on this

Zuma appointed and continued to retain accused 1 as Zuma’s “special economic adviser”, “financial adviser”, “personal adviser” and “special adviser”, and to allow the accused also to use this connection with Zuma to further their private business interests as described above.

Accused 1’s apparent appointment as Zuma special economic adviser was not in terms of any regulations relating to such appointments, and accused 1 received no remuneration for apparently performing such an office.

14.2. Each action mentioned in 14.1.1 to 14.1.6 above is also in neglect of Zuma’s constitutionally imposed duty not to 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.

Similarly, each category of act required Zuma to neglect to comply with his duties imposed by the Code of Conduct, namely:

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 and 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.

In all of the instances mentioned above in 14.1 to 14.5, Zuma neglected to accord equal treatment to any of the accuseds’ business competitors or potential business competitors and to provide such competitors with opportunities to enjoy the benefits of Zuma’s official sanction, equal to those provided to the accused.

15.1. The acts mentioned in 14.1.1 to 14.1.6 above were committed in excess of Zuma’s powers derived from the following positions that he held respectively:

15.1.1. Member of the KZN Legislature

Acts 14.1.1, 14.1.2, 14.1.3, 14.1.4 and 14.6 above.

15.1.2. Minister of Economic Affairs and Tourism (KZN)

Acts 14.1.1, 14.1.2, 14.1.3, 14.1.4 and 14.6 above.

15.1.3. Deputy President of the RSA

Acts 14.1.1, 14.1.5 and 14.1.6 above.

15.1.4. Leader of government business

Acts 14.1.1, 14.1.5 and 14.1.6 above.

15.1.5. Member of the National Assembly

Acts 14.1.1, 14.1.5 and 14.1.6 above.

The power exceeded in each case is the power attaching to the positions to use the respective offices and the opportunities which Zuma had by virtue of those offices to promote the public interest as opposed to the private interests of the accused.

15.2. Refer to 14.2 and 15.1. above.

16. It is not alleged that the payments listed in the schedule were each intended as rewards that can be linked to particular acts. As explained above, it is alleged that each payment was one of a series of payments that collectively and in furtherance of an ongoing scheme were intended to continue to reward Zuma for having committed the acts in general. The scheme has continued through the last payment alleged in the Indictment. The intention to commence with the scheme of corrupt payments was formed on the part of accused 1 prior to the commencement of the first payment. Accused 1 also acted on behalf of the following accused that were incorporated and of which he was a director:

Accused Date of incorporation Date accused 1 became a director Accused 2 27 February 1995 27 February 1995 Accused 3 24 February 1995 24 February 1995 Accused 9 29 June 1994 2 November 1994 Accused 10 15 June 1994 16 June 1994

As the following accused were incorporated and accused 1 became a director, he also commenced acting on their behalf:

Accused Date of incorporation Date accused 1 became a director Accused 4 2 September 1996 2 September 1996 Accused 5 20 November 1996 20 November 1996 Accused 6 23 August 1996 23 August 1996 Accused 7 2 September 1996 2 September 1996 Accused 8 29 May 2000 1 July 2000 Accused 11 16 July 1996 16 July 1996

Accused 1 intended from the outset to employ the assistance of the other corporate accused in making the payments. In respect of accused 2 to 10, the assistance was according to which accused existed and had sufficient resources to meet the payments at any particular time. In this sense each accused placed itself at the disposal of accused 1 for this purpose from the incorporation of each accused and the commencement of accused 1’s directorship.

In addition, it was intended that accused 2 to 10 would continue to facilitate the payments and/or to assume the responsibility for the payments by means of later entries relating to the payments after the payments had been made. In this sense each accused placed itself at the disposal of accused 1 for this purpose from the incorporation of each accused and the commencement of accused 1’s directorship.

Accused 1 acted on behalf of the other accused at or near Durban.

17. Refer to 16 above. The rewards were both for acts committed in excess of powers and in neglect of duties, all acts being both excesses of powers and neglects of duties.

Refer to 1.1 above and annexure H1 for details of which accused gave which benefit.

18. Accused 1 acted on behalf of accused 2 to 11. Thetard also acted on behalf of accused 11 from the date of his directorship on 1 April 1998.

19. The State alleges that the accused contravened the provisions of both subsections (i) and (ii) of section 1(1)(a) of Act 94 of 1992. As explained, each payment was made and received simultaneously with the intention to influence future acts and to reward past acts.

20. Yes.

21. Common purpose

21.1 To secure and cement the political connections that the accused thought necessary for achieving success in conducting business in furtherance of an ongoing scheme to influence Zuma to use his offices or positions or the opportunities which he had by virtue of those offices or positions to advance the accuseds’ private business interests and/or reward Zuma.

21.2 All the accused.

21.3 Yes. Zuma, Thomson-CSF (France), Thomson Holdings, Thetard and Perrier.

21.4 Refer to 16 above. Because accused 1 represented all the other accused, the formation of each of their intentions was simultaneously the formation of a common purpose at Durban prior to the inception of the first payment. In the case of the corporate accused that were incorporated thereafter, they entered into the intention and common purpose after such date of incorporation and with the inception of accused 1’s directorship.

22. Representation

22.1 Accused 1.

22.2 Accused 1 conceived all aspects of the abovementioned corrupt scheme and made, directed or authorized each payment.

23. Refer to 3.1. and 3.2 above.

AD THE FIRST ALTERNATIVE COUNT TO COUNT 1

24. Refer to 1.1 above and annexure H1.

25. Refer to 1.1 above and annexure H1.

[25(1)] Mistakenly numbered as a duplicate 25)

25(1).1 No specific creditor is alleged. All the respective creditors collectively of the respective corporate accused 2 to 10 are alleged.

25(1).2 Accused 1 was a party to the carrying on of the business of accused 2 to 10 with intent to defraud in the manner described in the Indictment and in that the whole true nature of the business of accused 2 to 10 was not revealed to creditors. It was potentially prejudicial to creditors to fail to reveal that accused 2 to 10 were each complicit to a greater or lesser extent in making payments to a high-ranking politician, when the business of the accused consisted of competing for governmental business, amongst other projects.

26. The State does not rely on this allegation.

27. Refer to 25(1).2 above.

28. Refer to annexure H1.

It is indicated in column G of schedule H1 that all the schedule amounts were paid directly or indirectly to Zuma as specified.

Some of the said payments were ultimately treated in the accounting records as debits to accused 1’s loan account as indicated in column AX of annexure H1 and in this sense they could be regarded as indirect payments for the account of accused 1.

AD THE SECOND ALTERNATIVE COUNT TO COUNT 1

29. It is alleged that accused 1 is guilty of committing this offence.

30. General Refer to 28 above and annexure H1.

30.1. None.

30.2. Not applicable.

30.3. Inasmuch as some of the payments made to or on behalf of Zuma were ultimately treated in the accounting records as debits to accused 1’s loan account as indicated in column AX of annexure H1, they were treated as indirect loans for the account of accused 1.

It is uncertain to what extent accused 1 intended all the payments indicated in annexure H1 to be for his own account. To the extent that the accused may have intended all such payments to be for his own account, such payments were loans made indirectly to accused 1.

30.4. Refer to column AV of annexure H1.

31. Refer to schedule H3.

32.

32.1. Accused 2: Star Corp (SA) (Pty) Ltd Clanwest Investments (Pty) Ltd Accused 10 Workers College

32.2. Accused 4: Accused 3

32.3. Accused 5: Accused 3

32.4. Accused 6: Accused 3

32.5. Accused 7: Accused 3

32.6. Accused 8: Accused 3

32.7. Accused 9: Accused 1

32.8. Accused 10: Accused 1, Star Corp (SA) (Pty) Ltd

32.9. Accused 12: Accused 1, Dwight Martin Triegaardt, Mkhize, Ambrose Adebayo, Themba Joseph Sono.

AD COUNT 2

33. General

Refer to paragraph 26.e. of the Summary of Substantial Facts. In the period towards the end of 1999 at the Nkobi offices in Durban, on a precise date unknown to the State, accused 1 attended a meeting during which the audit of accused 4 in respect of the financial year for the period ending on 28 February 1999 was discussed. The issue of the loan accounts in respect of accused 1, 9 and 11 was discussed. It was decided, on the instruction of accused 1, and/or with his approval, to write off the relevant amounts as expenses. The amounts were not expenses and the consequent entries in the accounting records were false.

As a result of the decision, the auditors of accused 4 instructed the accounting staff of accused 4 to pass journal entries writing off the amounts as “development costs Prodiba”.

Also as a result of the decision, the annual financial statements for the 1999 financial year were finalized to reflect the write-off, they were signed by accused 1 ostensibly on 1 December 1999 and they were issued accordingly.

Accused 1 made the misrepresentation in the abovementioned manner at the meeting, at the abovementioned place and on the abovementioned date.

Misrepresentation made at the meeting

Paul Gering and Ahmed Paruk of auditors David Strachan & Taylor attended the meeting, together with director Phambile Gama.

Accused 1 made the misrepresentation at the meeting in the abovementioned manner to the director and auditors.

Misrepresentation made by means of the instruction to the Nkobi accounting staff

Accused 1 made the misrepresentation by means of the instruction to the Nkobi accounting staff in the abovementioned manner.

Misrepresentation made by means of the Annual Financial Statements

Accused 1 made the misrepresentation in the abovementioned manner to any party who would be likely to be interested in, have access to and/or rely on the Annual Financial Statements, including shareholders of other entities within the Nkobi group, other directors within the Nkobi group, the accountants of accused 4 and other entities within the Nkobi group, the creditors of accused 4, including especially creditor banks, employees of accused 4 and other entities within the Nkobi group and the Receiver of Revenue or SARS.

34. Accused 1 acted on behalf of accused 2 to 10 in making the representations as described in 33. above. Accused 2 to 10 thus acted at the same time and place and in the same manner as accused 1.

35. Refer to 34. above.

36. Refer to 34. above.

37. Refer to 34. above.

38. Refer to 34. above.

39. Refer to 34. above.

40. Refer to 34. above.

41. Refer to 34. above.

42. Refer to 34. above.

43. Refer to 34. above.

44. Refer to 34. above.

45. Refer to 34. above.

46. Refer to 34. above.

47. Refer to 34. above.

48. Refer to 34. above.

49. Refer to 34. above.

50. Refer to 34. above.

51. Refer to 34. above.

52. Refer to 2.8 above.

53. Each accused had a duty to ensure that its books and records and Annual Financial Statements were accurate, and to reveal it if this was not the case.

53(1) [Duplication of 53] No.

54. The amounts were treated as debts of accused 1, 9 and 10 in the accounting records of Kobifin before the write-off. In respect of amounts payed to or on behalf of Zuma, the amounts were in fact bribes.

55. It is not alleged that the failure to reveal extinguished the debts – the write-off extinguished the debts.

Refer to 2.4 to 2.7 above and annexure H2.

56. Refer to 2.1 and 2.5 above and annexure H2 for details of the manner in which each payment to or on behalf of Zuma was treated in the books of the accused mentioned in annexure H2.

57. The write-off had the effect of concealing the debts owed to accused 4. The directors and shareholders suffered prejudice or potential prejudice in that they were placed in a position where they were unable to consider taking steps to recover the debts in the interests of accused 4 and the other accused involved in the accounting treatment of each payment as reflected in annexure H2. The creditors were similarly prejudiced in that they might rely on inaccurate information. The prejudice was the loss of the asset.

The further prejudice or potential prejudice to the shareholders, directors, accountants and creditors is that they were placed in a position where they were unable to appreciate the true extent of the bribes paid to Zuma and to take the steps appropriate in the circumstances that they might have considered appropriate or have been obliged to have taken had they known the truth.

Inasmuch as the write-off might also have included amounts expended in the interests of political parties and/or in other interests of a political nature, the write-off tended to conceal, to the prejudice of all the parties named, what the whole true nature of the business of the Nkobi group was.

58. Refer to 57 above. The same prejudice or potential prejudice is alleged.

In addition, and in respect of the Receiver of Revenue/ SARS, it suffered the prejudice or potential prejudice of being unable to assess accurately the benefit that accused 1 derived from accused 4, and more particularly in circumstances where accused 1’s directorship of accused 4 or any of the other accused was not disclosed to SARS.

59. The prosecution will be withdrawn against accused 11.

AD THE FIRST ALTERNATIVE TO COUNT 2

60. The contrectatio in respect of each of the three accounts is the write-off.

Refer to schedule H2 for the details of the amounts constituting the total amount.

590/000: Loan Account – S Shaik

The balance of this account before the write-off represented amounts owing by accused 1 to accused 4. The write-off extinguished accused 1’s liability and so permanently deprived accused 4 of this asset.

580/150: Loan account – Floryn Investments

The balance of this account before the write-off represented amounts owing by accused 10 to accused 4. The write-off extinguished accused 10’s liability and so permanently deprived accused 4 of this asset.

Accused 1 is the shareholder of accused 10. Accused 1 is thus effectively the sole beneficiary of the write-off in respect of accused 10’s loan account.

580/120: Loan account - Clegton Investments (Pty)

The balance of this account before the write-off represented amounts owing by accused 9 to accused 4. The write-off extinguished accused 9’s liability and so permanently deprived accused 4 of this asset.

Accused 1 is the sole shareholder and director of accused 9. Accused 1 is thus effectively the sole beneficiary of the write-off in respect of accused 9’s loan account.

61. Accused 1.

62. The assets of accused 4 are held for the benefit of its shareholder, namely accused 3, which in its turn is owned by accused 2.

The results of the Nkobi group’s business activities were consolidated.

AD THE SECOND ALTERNATIVE TO COUNT 2 – SUB-COUNT 1

63. Accused 1 and accused 4, in respect of all the actions.

64. Books of account:

64.1. Accused 4’s books of account (and accused 2’s books of account on consolidation), and particularly the journals, general ledger and loan accounts that reflected the write-off and such ledgers and loan accounts that reflected the balances carried forward.

Accused 4’s and accused 2’s Annual Financial Statements for the year ending on 28 February 1999 and subsequent Annual Financial Statements that carried forward the effects of the write-off.

64.2. Refer to 64.1 above.

65. In the case of accused 4, the other person is accused 1.

66. Refer to 33. above.

67. Refer to 33. above.

68. In respect of both 68.1 and 68.2: Accused 1 in respect of accused 4.

AD THE SECOND ALTERNATIVE TO COUNT 2 – SUB-COUNT 2 – THE ALTERNATIVE TO SUB-COUNT 2

69. Refer to 33. above.

70. Refer to 64.1 above.

71. Refer to 64.1 above.

72. Refer to annexure H2.

AD COUNT 3

73. Refer to 3.1 above. The terms “pay” and “give” are used interchangeably and they are intended to bear the same meaning.

74. Refer to 3.1 above. In the period after the initial request from accused 1 on Zuma’s behalf, and before the agreement was concluded, the accused as described in 3.1 offered to give the amounts in the manner described in 3.1 above.

75. All the accused, in the sense described in 3.1 and 3.2 above and paragraphs 30 to 36 of the Preamble to the Indictment.

76. In respect of 76.1, 76.2 and 76.3: Accused 2 to 10 : Represented by accused 1 : as director

Accused 11 : Represented by accused 1 and Thetard : as directors.

77. Refer to 3.2 and 74 above.

78. General

It is alleged in the Indictment that the accused agreed, offered or gave the annual benefits with the intention to influence Zuma to commit or omit the acts described. The State is requested in paragraphs 78, 79 and 81 to supply further particulars of the acts that Zuma was in fact influenced to commit or omit. It is assumed that the required particulars, in accordance with the Indictment, concern the acts and omissions that Zuma was intended to commit and the answers are supplied on this basis.

The acts and omissions are in relation to both Zuma’s powers and duties.

It is not alleged that the annual benefits were each intended as inducements to commit or omit a particular act that could be linked causally to an isolated payment.

The State is not party to precise and comprehensive particulars of the accuseds’ intentions, other than those alleged in the Indictment and Summary of Substantial Facts.

Nevertheless, the circumstances reveal that the general intention alleged may be further refined, but not limited to, the following.

Acts – Commissions

Refer to 3.6.1-4 above.

The power alleged is the power to influence or attempt to influence, directly or indirectly, formally or informally, decisions of the organs of state at high political level or the power derived from the opportunities which he had by virtue of those offices or positions.

The duties alleged are those attendant to all the positions of high office alleged, which include performing the tasks at high political level required of such offices.

Acts - Omissions

It was intended that by committing the acts mentioned in 3.6.1.-4 above, Zuma should omit to comply with his constitutionally imposed duty not to 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.

Similarly, it was intended that Zuma should omit to comply with his duties imposed by the Code of Conduct, namely:

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 and 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.

79. See 78 above.

80. Thomson-CSF (France), Thomson-CSF International Africa Ltd (Mauritius) and Thomson Holdings.

81. The interests of all the accused to be protected during the then current investigations and to enjoy Zuma’s permanent support for future projects.

82. Yes.

83. Common purpose

83.1. To secure Zuma’s protection and support as described.

83.2. All the accused.

83.3. Yes. Thomson-CSF(France), Thomson Holdings, Thetard, Perrier and de Jomaron. Zuma was also a party to the bribe agreement and hence a party to the common purpose, in that he agreed to receive the corrupt payments in contravention or as contemplated in section 1(1)(b) of the Corruption Act.

83.4. Refer to 3.1 and 3.2 above. The common purpose arose simultaneously with the formation of the agreement.

84.

84.1. Accused 1-10 : represented by accused 1 Accused 11: represented by accused 1 and Thetard.

84.2. Refer to 3.1 and 3.2 above.

85.

85.1. Refer to 3.1, 3.2 and 83.3 above.

85.2. Thetard, Perrier and de Jomaron.

AD FIRST ALTERNATIVE TO COUNT 3

86. To achieve the effects mentioned in the Indictment.

87. All the accused.

88. Refer to 3.1 and 3.2 above and paragraphs 30 to 36 of the preamble to the Indictment. The common purpose arose simultaneously with the formation of the agreement, both regarding the agreement to pay and the agreement to disguise payment, over the period described.

89. Yes. Zuma, Thomson-CSF (France), Thomson-CSF International Africa Ltd (Mauritius), Thomson Holdings, Thetard, Perrier and de Jomaron.

90.

90.1. Accused 1-10: Represented by accused 1 Accused 11 : Represented by accused 1 and Thetard

90.2. Refer to 3.1 and 3.2, and particularly 3.2.6 above.

91.

91.1. Refer to 3.1, 3.2 and 3.6 above.

It is alleged that all the accused were party to an implied pre-planned common purpose to launder the proceeds of the unlawful activities set out in the Indictment, which common purpose arose on or about the same time as the agreement was reached, see 3.1 and 3.2 above. Pursuant to this common purpose the accused and other parties mentioned above performed the acts set out in para 3.2 and 3.2 above in furtherance of the common purpose.

See 3.1 and 3.2 above.

91.2. Thetard, Perrier and de Jomaron.

AD THE FIRST ALTERNATIVE COUNT TO COUNT 3 [It appears that this heading is a duplication – see paragraph 86 above]

92. The State alleges that the accused contravened the provisions of both subsections (a) and (b) of section 4 of Act 121 of 1998, alternatively a contravention of one or the other.

93. Refer to 86 above.

94. Yes. Refer to 89 above.

95. Refer to 88.4 above.

96.

96.1 Refer to 90.1 above.

96.2 Refer to 90.2 above.

97.

97.1. Refer to 91.1 above.

97.2. Refer to 91.2 above.

98. Refer to 3.1 above.

99. Refer to 3.4 above.

100. Refer to 3.2 above.

101. Refer to 3.1 above.

102. Refer to 3.4 above.

103. Refer to 3.2 above.

104. Refer to 3.1 above.

105. Refer 3.1 and 3.2 above.

106. Refer to 3.4 above.

107. See 3.1 above.

108. All the accused. Each of the accused was acting in furtherance of a common purpose to protect each other and other parties not charged.

AD THE SECOND ALTERNATIVE TO COUNT 3

109. Any of the accused or any of the other parties referred to in 89 above who may be found by the court to have committed the unlawful activities in the main count.

Dated at Durban on 23 September 2004

W J DOWNER SC
DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS

To :
The Registrar
High Court
DURBAN

And to:
Reeves Parsee Attorneys
68 Henwood Road
MORNINGSIDE