AFFIDAVIT OF DR MADUNA

I, the undersigned,

PENUEL MPAPA MADUNA

make oath and state that:

1. I am an adult male, resident at Sandton, Johannesburg. I am an attorney in private practice. I was previously the Minister of Justice and Constitutional Development.

2. The facts deposed to below are within my personal knowledge, save to the extent that the context indicates otherwise.

3. I have read the affidavits filed on behalf of the accused in their application for a permanent stay of the proceedings and the alternative remedy to refuse the State's application for a postponement and to strike the matter off the roll. In this affidavit, I shall answer those allegations of the accused that fall within my knowledge.

THE AFFIDAVIT OF ACCUSED NUMBER 1

4. I begin by dealing with the affidavit of Accused No 1.

The allegations of conspiracy

5. It is appropriate for me to deal at the outset with a theme that resonates throughout the affidavit of Accused No 1. It is the allegation that the investigation into the alleged involvement by Accused No 1 in corrupt activities and the subsequent actions by the NPA were "designed solely or mainly to destroy [his] reputation and political role playing ability" (para 17 of the founding affidavit), and form part of "a political conspiracy to remove [Accused No 1] as a role player in the ANC". (paragraph 20 of Accused No 1's affidavit)

6. In my previous capacity as Minister of Justice and Constitutional Development, I interfaced with the then National Director of Public Prosecutions and Head of the National Prosecuting Authority ("NPA"), Mr Bulelani Ngcuka ("Ngcuka"). What is set out below is based on my interaction with Ngcuka during the period in which I occupied the position of Minister of Justice and Constitutional Development.

7. I have noted Accused No 1's claim that the investigation into his alleged involvement in corrupt activities and the subsequent actions by the NPA are part of a political conspiracy to prevent him from becoming President of the country. In particular, I note his accusation that Ngcuka was a participant in such a conspiracy. I reject these allegations in unequivocal terms. I note that Accused No 1 has put up no facts upon which such a serious accusation could reasonably have been founded, but has chosen instead to rely on rumours, press reports, speculation and innuendo. I am advised that these accusations are scurrilous and unfounded, and that they appear to be part of a concerted publicity campaign. I set out the correct facts below.

8. I was made aware by the NPA at an early stage of the investigation into the Arms Deal. The name of Accused No 1 did not feature at all at that stage. I am advised that the events which led to Accused No 1 becoming a suspect in this investigation are set out elsewhere in these papers. Suffice it to say that I am personally aware that, once evidence was uncovered that required an investigation to be conducted in relation to Accused No 1, the NPA made every effort to handle the investigation with the utmost discretion and sensitivity. The steps taken by the NPA to avoid public disclosure of the investigation of Accused No 1 are listed in Ngcuka's press release (Annexure LM4). These efforts were successful until Mr Shaik deliberately and cynically revealed in court papers the identity of Accused No 1, who had hitherto been referred to in all of the State's papers only as "Mr X". This was discovered by the Mail and Guardian, which published this fact in November 2002.

9. I respectfully submit that the conduct referred to above is not the conduct of a person who is party to a conspiracy such as that alleged by Accused No 1. I can state unequivocally that neither Ngcuka nor the NPA were party to any conspiracy against Accused No 1. On the contrary, they made every effort to shield Accused No 1from adverse publicity throughout the course of the investigation.

10. If there was any conspiracy at the time, then it was a conspiracy designed to discredit Ngcuka and the NPA simply because they was doing their job without fear, favour or prejudice (as demanded by the Constitution). This resulted in a shameful smear campaign against Ngcuka, culminating in the allegations that he had been an apartheid spy. These allegations were publicly and thoroughly discredited in the Hefer Commission. It is significant to note that, despite the fact that all interested parties (including Accused No 1) were invited to make submissions to the Hefer Commission, there were no allegations at that time that there was any such political conspiracy against Accused No 1 or that Ngcuka was part thereof.

11. I point out that Accused No 1 was specifically invited, but declined, to testify at the Hefer Commission. He went as far as suggesting that, if subpoenaed to testify, he would ignore such subpoena. (See the report of the Hefer Commission, Annexure BTN1) If Accused No 1 had any credible information to put before the Commission, (whose terms of reference were specifically extended to include an investigation into whether Ngcuka had acted improperly of abused his position) then I would have expected him to have placed these before the Commission, where they could have been thoroughly canvassed and tested. It is revealing that these allegations have only arisen after Accused No 1 was charged. I verily believe that these allegations are part of a cynical ploy by Accused No 1 to evoke uninformed public sympathy and to deflect attention from the serious charges that he faces.

12. In a report in the Sowetan newspaper during his recent rape trial, Accused No 1 named me as being part of the alleged conspiracy together with Ngcuka. If Accused No 1 denies that he said this to the reporter in question, then I challenge him to say so under oath. During the rape trial, Accused No 1 changed his version and alleged that it was Ngcuka and Minister Ronnie Kasrils who were behind the plot, an allegation which he repeats in the present affidavit. I respectfully submit that this serves to demonstrate the opportunistic and squalid nature of these allegations.

13. Accused No 1 and I attended various meetings of the National Executive Committee of the ANC, of which we are both members, at which the suggestion that he was a victim of a political conspiracy was discussed. At no stage did he place before the NEC any evidence of such a political conspiracy. I would have expected that, had he had any evidence of such a conspiracy, he would have availed himself of this opportunity to air them. I should add that the NEC concluded that there was no such conspiracy, a conclusion which he has never refuted.

Response to individual paragraphs in the affidavit of Accused No 1

14. I turn now to deal with individual paragraphs where I am referred to in the affidavit of accused No 1. In order to avoid prolixity, I shall not repeat what I have already stated but respectfully request that it be read as if incorporated in what appears below.

AD PARAGRAPH 17 TO 35

15. The deponent deals herein with the alleged political conspiracy against him. I refer to what I have stated above in this regard. I deny the contents of these paragraphs to the extent that they are inconsistent with what I have stated above.

AD PARAGRAPH 36

16. Accused No 1 refers herein to the public announcement of Ngcuka made on Saturday 23 August 2003. I make the following observations regarding this public announcement:

17. On or shortly before 23 August 2003, Ngcuka contacted me and advised me that he had reached a decision regarding the prosecution of the suspects in the Shaik/Zuma/Thint investigation. He informed me that, in the interest of transparency and public accountability, he had decided to arrange a press conference at which he would announce his decision.

18. Ngcuka did not discuss his decision with me. As Minister exercising political responsibility and in light of the importance of the decision, I felt that it was appropriate that I should attend the press conference, which I then did. I heard Ngcuka's decision for the first time as it was read out to the press.

19. It should be noted that, although this was not contained in the body of the press release, Mr Ngcuka stated in answer to a question by a journalist that should new information come to light, he would review his decision not to prosecute Accused No 1. This is confirmed by various press reports. (Attached hereto as Annexures PMM 1 and 2)

AD PARAGRAPH 37

20. I admit that I said that this was a "sad day" on the occasion referred to herein. However Accused No 1 misinterprets what I meant by this statement. I made the statement in response to a question from a reporter as to what effect this decision would have for the ANC. I was reacting to a question by a journalist. I was not reading Mr Ngcuka's mind, but was expressing my own feelings. What I intended to convey was that it was a sad day when investigations did not find that Accused No 1's behaviour was beyond reproach, as I would have expected from the Deputy President of the country.

AD PARAGRAPHS 39 - 40

21. It is incorrect that Mr Ngcuka and I did not respond other than through the press conference. The NPA and I prepared a comprehensive joint written response and requested leave to address the National Assembly on this issue. Unfortunately, leave was denied and the NPA was never afforded a sufficient opportunity to put its views across. I am advised, however, that this issue is of such limited relevance to the present application that it does not merit further discussion. A copy of this report can, however, be made available should the court so direct.

22. I remain of the view that the report of the Public Protector is seriously flawed and believe that his findings cannot be supported. I note, however, that even the Public Protector concluded that no indication could be found that Ngcuka acted in bad faith or with the intent to prejudice the Deputy President. AD PARAGRAPHS 60 TO 65

23. Accused No 1 deals in his affidavit with a letter addressed to the Chairman of SCOPA, Mr Gavin Woods, that he signed on 19 January 2001. I was not aware of this letter until it became public knowledge. I have no knowledge regarding the contents of these paragraphs, which I am informed will be dealt with elsewhere in the affidavits filed on behalf of the state. I do however point out that the effect of this letter was to exclude the Heath Investigating Unit from the investigation into the Arms Deal. Speaking for myself, I would not, in my position as a cabinet minister, have appended my signature to a document in circumstances where I did not endorse its contents. I respectfully submit that, by signing the letter, Accused No 1 appropriated the letter as his own. Accused No 1 would have been entitled to amend the letter before signing it, if he was uncomfortable with any portion(s) of it. I note also that he copied the letterž inter alia, to Accused No 3. It is not clear whether this was his decision or also merely an instruction.

THE AFFIDAVIT OF MOYNOT FILED ON BEHALF OF ACCUSED NUMBER 2 AND ACCUSED NUMBER 3

24. I turn now to address the affidavit of Mr Pierre Jean Marie Robert Moynot ("Moynot"), which has been filed on behalf of Accused Nos 2 and 3. I shall begin by dealing with certain general issues in the affidavit of Moynot. Thereafter I shall deal seriatim with those paragraphs that require a response from me.

Initial meetings with Thales/Thint in Paris

25. I have already indicated that, in my previous capacity as Minister of Justice and Constitutional Development, I interfaced with the then National Director of Public Prosecutions and Head of the NPA, Mr Ngcuka. During this period, I was approached, while on an official trip to London together with Ngcuka, by a person purportedly acting as an intermediary for Thales International (previously Thomson International - "Thomson/Thales"). He informed me that Thomson/Thales wanted to have an audience with me and Ngcuka as they were ready to furnish us with the information that we had been looking for. This approach was against the backdrop of a pending request for mutual legal assistance which the NPA had directed to the French authorities with the aim of securing the questioning of Mr Alain Thetard ("Thetard"), the then managing director of Accused Nos 2 and 3, and certain other senior officials of Thomson/Thales.

26. In pursuance of this request by Thomson/Thales, I sanctioned Ngcuka and McCarthy to travel to Paris for an off-the-record meeting with the executives and lawyers of Thomson/Thales. Ngcuka later reported that the discussions did not yield any results. I authorized a second trip for Ngcuka to travel to Paris to pursue these discussions but once again they bore no fruit. We then concluded that these meetings served little purpose and decided rather to proceed with our formal request for assistance from the French authorities.

27. I was subsequently approached by a Mr Robert Driman ("Driman"), a partner in the law firm Deneys Reitz Attorneys in Johannesburg, with a request to the effect that representatives of Accused Nos 2 and 3 and Thomson/Thales (I shall refer to these parties collectively as "Thales/Thint") sought a meeting with myself and Mr Ngcuka, as they were now ready to co-operate. I was ambivalent about the need for another meeting with Thales/Thint, since a considerable amount of time and money had already been wasted on the two previous meetings overseas which had yielded no results. I informed Mr Ngcuka about the request of Thales/Thint, and he was of the opinion a meeting should be held notwithstanding the fact that the previous meetings had been fruitless. I then informed Thales/Thint that we could meet, on condition that the meeting occurred in South Africa.

28. I must mention that it had been agreed since we were first approached in London that these discussions would be conducted on a confidential and privileged basis. In particular, I regard the meeting at my house as a privileged discussion, aimed as it was at negotiating the withdrawal of charges against Accused No 3. I therefore record my dismay at the fact that Accused Nos 2 and 3 and their legal representatives have breached this confidentiality undertaking by publishing the contents of the meeting described below - and inaccurately at that - in court papers. I am advised that this is not the first time that they have behaved in such a manner. In court papers filed in the Natal Provincial Division of the High Court on 12 August 2004, they disclosed the contents of the "confidential and off the record" discussion on 19 April 2004 with Ngcuka and McCarthy, which led to the agreement to withdraw charges in return for Thetard's affidavit, and also the contents of the "without prejudice" correspondence that followed. In both instances, these parties have referred selectively to the contents of such discussions and correspondence, with the result that an incomplete and unbalanced version of events has been presented. The unfortunate result of their conduct is that the State is now compelled to deal with these and other confidential discussions in order to ensure that the full picture is placed before the court. I do so below.

The meeting at my house in April 2004

29. A meeting was held at my house in April 2004. It was a culmination of the two previous meetings already referred to. As indicated above, this meeting took place at the initiative of Thales/Thint. This meeting was held at my house since I was temporarily wheelchair-bound at that stage, due to a broken leg sustained during a car accident. The Thales/Thint delegation consisted of Messrs Driman, Moynot, Ajay Sooklal and Christine Guerrier, a lawyer from France. Mr Ngcuka was also present.

30. Thales/Thint wanted to assure us of their bona fides. Due to the earlier meetings in Paris which had turned out to be a wild goose chase, Mr Ngcuka and I were somewhat sceptical. Thales/Thint sought to persuade us that they wished to invest in South Africa and made it clear that they did not want their name to be tainted by allegations of corruption. In short, they were the ones doing the talking and making representations to us, and not vice versa. I cannot now remember precisely who said what but I recall that the issue of the economic benefits of their investment in the country was indeed discussed. However, this was raised by them and not by me, as is suggested in Moynot's affidavit.

31. The Thales/Thint delegation attempted to persuade us to withdraw the charges against Accused No 3. Mr Ngcuka was initially not prepared to agree to withdraw the charges and pointed out that they had not been willing to assist us previously with the simple matter of getting an affidavit from Thetard. He stated that he was not prepared to withdraw the charges unless they were prepared to cooperate. They then requested what was the nature of the cooperation that we sought, to which Mr Ngcuka replied that he wanted at least an affidavit from Thetard as a gesture of good faith. They indicated that they would take instructions and revert to us.

32. Ngcuka then invited them to call at his office in order to discuss how they would co-operate. We then agreed that they would pursue discussions with the NPA to define the parameters of their co-operation. I must emphasise that no decisions were taken at this meeting other than that we accepted their bona fides to the extent that it was agreed that the NPA would meet further with them. Certainly no undertaking was given at this meeting to withdraw charges against them and no agreement to this effect was reached.

33. I must stress that, while as Minister of Justice and Constitutional development I exercised political oversight over the NPA, I did not have the authority to intervene in their prosecution decisions or policies. It was certainly not my practice to do so.

Events subsequent to the meeting in April 2004

34. Subsequent to the meeting of April 2004, I was advised that Ngcuka and McCarthy met with the legal representative of Thales/Thint, represented at that stage by Mr Kessie Naidu SC, and an agreement was reached in terms of which Thetard would provide the NPA with an affidavit pertaining to his authorship of the so-called encrypted fax. I was also informed that the NPA started exchanging correspondence with a view to securing an interview by the prosecuting team with Thetard and to negotiate a possible indemnity from prosecution for certain persons.

35. At a certain stage, I was approached in private by Senior Counsel for Thales/Thint, Mr Naidu. I cannot recall the exact date, other than that it was some time after the first meeting at my house, but before the delivery of Thetard's second affidavit. We met alone. He informed me that he was not "getting any joy" from the NPA, and sought my intervention.

36. The contents of the discussion which ensued were to be strictly confidential, and I have to date respected this confidentiality. I am advised that I would be within my rights to divulge the contents of this conversation, in the light of the selective disclosure of confidential discussions made by the accused. However, I have decided not to descend to that level.

37. Suffice to say that Naidu made a certain report to me regarding the so-called encrypted fax and the events of 11 March 2000. This report differed materially from the version which Thetard subsequently recorded in his second, unsolicited statement dated 10 May 2004. Notwithstanding the breaches of confidence by the Accused as referred to above, I would prefer not to reveal the precise details of Naidu's report, more especially as these might be prejudicial to the Accused in the criminal trial. However, I am advised that should I be challenged on this version, the State may be compelled seek the leave of this Honourable Court to give a full account of this meeting.

Thetard's second statement regarding the encrypted fax

38. I am of the view that Thetard's second statement regarding the encrypted fax (to wit, that it was only Thetard's loose thoughts on separate issues that were scribbled on a piece of paper and later crumpled up and discarded) was a cynical attempt to sabotage the State's case in the impending prosecution of Shaik.

39. As I have already mentioned, this version was at odds with the report given to me by Naidu. I am also advised that Thetard's second version has been discredited by the evidence led at the Shaik trial - this evidence established that the letter was indeed typed and faxed to Paris. Furthermore, forensic examiners have determined that the document was never crumpled up.

40. If this version in Thetard's second affidavit had been given to me during the meeting at my house described above, I would not have accepted the bona fides of Thales/Thint and the matter would have gone no further. I am sure that Ngcuka would never have agreed to the withdrawal of charges if this had been disclosed at the relevant time. If Thales/Thint had been negotiating in good faith and if the contents of Thetard's second statement were in fact true, I would have expected them to disclose these details to us during the meeting at my house, or at least to Ngcuka and McCarthy at the subsequent meeting when the agreement was reached to withdraw the charges. I can only conclude that either Thales/Thint had had a change of heart regarding coming clean about their involvement in this matter, or that they had been negotiating in bad faith from the outset. Either way, I regard their actions as being male fides and believe that the effect of their behaviour is to render null and void the agreement reached to withdraw the charges.

Response to individual paragraphs in the affidavit of Moynot

41. I turn now to deal with individual paragraphs to which I am referred in the affidavit of Moynot. In order to avoid prolixity, I shall not repeat what I have already stated but respectfully request that it be read as if incorporated in what appears below.

AD PARAGRAPH 23

42. This paragraph is admitted.

AD PARAGRAPH 24

43. This paragraph is admitted. However, I must stress that I am not clothed with the authority to withdraw a criminal charge. I therefore referred the Thales/Thint delegation to Mr Ngcuka at the meeting referred to in this paragraph.

AD PARAGRAPH 25

44. This paragraph is admitted.

AD PARAGRAPH 26

45. I refer to what I have stated above regarding the contents of the discussions that occurred at the meeting. The impression is incorrectly created in this paragraph that the conversation was a monologue by me. I deny that I stated during the meeting that the focus of the prosecution was on Shaik and the corporate entities he controlled and not on Thales International, accused no. 3 or Thetard. I could not have made these statements for the simple reason that I did not have knowledge relating to matters of such detail. The remarks about investments were made by the Thales party in order to persuade us of their bona fides. In terms of my legislative powers, I could not recommend withdrawal of the charges. This is a discretion that is solely vested in the National Director of Public Prosecutions or a person delegated by him. It would have been improper in the extreme for me to give an undertaking to withdraw and I would never have done so.

46. Save as aforesaid, I deny the contents of this paragraph.

AD PARAGRAPH 27 - 28

47. These paragraphs are denied. There was no undertaking given at that meeting to the Thales/Thint delegation to withdraw the charges. All that was agreed was that, since Thales/Thint were prepared to co-operate, they would henceforth work with Mr Ngcuka to discuss how they could co-operate going forward. Thales/Thint then went away and subsequently had discussions with Mr Ngcuka at his office and correspondence was exchanged between them. I refer to what I have stated above in this regard.

AD PARAGRAPH 29

48. I note the contents of this paragraph.

AD PARAGRAPH 30

49. Once again, I deny that any agreement had been reached at the meeting save that the Thales/Thint delegation would work with Ngcuka to define the parameters of their co-operation going forward.

AD PARAGRAPH 31

50. I note the contents of this paragraph.

AD PARAGRAPH 33.1

51. I deny that I made the statements attributed to me in this paragraph. I merely commented, in response to the representations made on behalf of Thales/Thint, to the effect that foreign investment in South Africa was always to be encouraged. I certainly never gave any sort of assurance that Accused No 3 could go ahead with the expansion of their businesses in South Africa without fear of any future prosecution, nor do I believe that such an interpretation could reasonably have been placed on my comments. I must again stress that the decision to prosecute rested solely in the NPA and I would most certainly not have said anything that would have had the effect of fettering its discretion with regard to such decision.

AD PARAGRAPH 33.2

52. I deny the contents of this paragraph. I refer to what I have stated above in this regard.

AD PARAGRAPH 33.5 AND 33.6

53. I deny the contents of these paragraphs. I refer to what I have stated above in this regard.

AD PARAGRAPH 33.7

54. I deny the contents of this paragraph. At no stage did I ever make a recommendation that the charges should be dropped on the basis that the focus of the prosecution was not Accused No 3. I refer to what I have stated above in this regard.

AD PARAGRAPH 33. 8.1

55. In light of what is set out above, I do indeed differ from Moynot in his understanding of the circumstances that preceded the termination of the proceedings against Accused No 3.

AD PARAGRAPH 33.8.2

56. I reiterate that no agreement was reached at the meeting held at my house other than that that Thales/Thint would co-operate with Mr Ngcuka going forward. I deny that any legitimate expectation could have been created in the minds of Thales/Thint that the prosecution against Accused No 3 was not going to be reinstituted. I am advised that the matter will be further addressed during oral argument.

AD PARAGRAPH 33.8.3

57. I deny the contents of this paragraph, since there was no decision taken at the meeting held at my house to withdraw the charges. All that was agreed upon was that the Thales /Thint party would liaise with Mr Ngcuka in order to determine how they would co-operate with the NPA. I refer to what I have stated above in this regard.

AD MOYNOT'S SUPPLEMENTARY AFFIDAVIT AND GUERRIER'S AFFIDAVIT

58. I turn now to deal with the supplementary affidavit of Moynot and the affidavit of Adv Christine Guerrier ("Guerrier").

59. Both of these affidavits deal with what I believe to be Ngcuka's second trip to Paris, which I have referred to above. The impression that is created in these affidavits is that Ngcuka was pursuing Thales/Thint in an effort to secure their cooperation; the position was in fact the opposite. Thales/Thint approached me through an intermediary with an offer to cooperate. It was against this background that Ngcuka travelled to Paris to meet with officials of Thales/Thint. It is apparent to me that either Guerrier or Moynot have not been fully apprised of the factual background of this meeting, or they have elected not to disclose it.

60. I do not have a detailed knowledge of the contents of these negotiations, save that Ngcuka reported to me on his return that both trips were ultimately a waste of time. I will limit myself, therefore, to dealing with those specific paragraphs on which I am able to comment.

AD PARAGRAPH 2 OF GUERRIER'S AFFIDAVIT

61. I note that Perrier's report to Guerrier is hearsay. In circumstances where it has been indicated that he is not prepared to come to South Africa to give evidence in this matter, I am advised that it should be ignored. I reiterate, in any event, that his report, if true, was incomplete.

AD PARAGRAPH 5 OF GUERRIER'S AFFIDAVIT

62. I deny the averment herein that Perrier had been approached first by Ngcuka. I reiterate that the first approach came from the side of Thales/Thint. In the circumstances, the alleged "suspicion" occasioned by the fact that this approach was outside of formal diplomatic channels, was either misplaced or contrived. The negotiations were conducted on the basis that Thales/Thint had offered their cooperation voluntarily and hence there would be no need to pursue the formal channels that are used when the assistance of the country concerned is required to compel cooperation. As a cabinet minister in the government of South Africa, I did not believe there to be anything improper about such a course of action.

63. I draw the court's attention to the fact that in Thetard's second affidavit, delivered to the State by the same legal team which now seeks to take this point, he pertinently invites Ngcuka and McCarthy to interview him in France. One imagines that he would not have been advised to make such an offer if his legal representatives were genuinely of the view that this was somehow irregular or improper.

AD PARAGRAPH 8 OF GUERRIER'S AFFIDAVIT

64. It is noted that Accused Nos 2 and 3 have once again sought to breach the confidentiality of a discussion that they claim to have been "off the record". I should add, however, Ngcuka's view was that this particular meeting was to be "on the record" as the purpose thereof was to get a statement from Thetard. However, this did not transpire as a result of Thetard's apparent lack of willingness to cooperate.

65. I deny that Ngcuka was under any "severe pressure to obtain this affidavit from Thetard".

AD PARAGRAPH 13 OF GUERRIER'S AFFIDAVIT

66. I deny that the "approach" made by Ngcuka was irregular. The fact of the matter is that Thales/Thint approached Ngcuka and myself. I refer to what I have stated above in this regard.

The contents of this declaration are true to the best of my knowledge and belief. I read this statement before I signed it. I know and understand the content of this declaration. I have no objection to taking the prescribed oath. 1 consider the prescribed oath to be binding on my conscience.