The National Prosecuting Authority (NPA) has admitted that it should have put former president Jacob Zuma on trial for corruption 15 years ago, but vehemently denies that then prosecutions head Bulelani Ngcuka did not charge Zuma with his former financial adviser Schabir Shaik because he feared Zuma would clear his name.
Instead, Ngcuka claims, his decision not to charge Zuma with Shaik was driven by his deep concern about the lack of evidence directly implicating the then deputy president in corruption, as well as his "doubt" that Zuma was aware of the bribe allegedly solicited for him by Shaik from French arms company Thales.
Further, according to lead Zuma prosecutor Billy Downer, Ngcuka felt that "a decision to prosecute when the NPA was not assured of a successful outcome would have a disruptive effect on the government and the broader South African society".
Downer says that while he disagreed with Ngcuka’s decision on Shaik he believed that it was taken "in good faith and not for any ulterior purpose".
It is the state’s case that Shaik and his company Nkobi Holdings made 783 payments to Zuma, totalling more than R4m, in the 10-year period from October 25 1995 to July 1 2005.
In return for these payments, the state claims that Zuma abused his formal position as MEC and as deputy president of the ANC to do unlawful favours for Shaik and his company.
During Shaik’s trial, the state proved four instances of Zuma doing such favours
for Shaik. The state further alleged that Thales "conspired with Shaik and Zuma to pay the then deputy president the amount of R500,000 per annum as a bribe" in exchange for Zuma’s protection from any arms-deal investigations.
While Shaik claimed this payment was in fact a donation to the Jacob Zuma Education Trust, the high court in Durban rejected that claim as "nothing short of ridiculous".
Zuma denies any wrongdoing and remains adamant that the recently revived racketeering, corruption, fraud and
tax-evasion case against him is too tainted by prosecutorial interference and "undue delay" to continue.
Now, as part of the NPA’s response to Zuma’s bid to permanently stay his prosecution, the state has detailed for the first time why Ngcuka chose not to charge the then deputy president with Shaik because of his apprehensions about the evidence against him.
According to Downer, "the evidence the NPA has discovered and gathered during the investigation consisted largely of letters, faxes and records, and in [Ngcuka’s] view there was insufficient witness testimony linking the contents of the documents in question to Zuma".
Ngcuka’s successor, Vusi Pikoli, maintains that when he decided to charge Zuma after Shaik’s conviction in 2005 he believed there was strong admissible evidence against Zuma that justified
his prosecution.
Subsequent to Shaik’s conviction, the Scorpions conducted many raids on Zuma and his lawyers — securing 93,000 documents that would form the basis of an in-depth and allegedly damning report on Zuma’s finances.
In court papers, Zuma argues that the state used its prosecution of Shaik as a "dry run" for its legal pursuit of him, thereby effectively robbing him of the opportunity to cross-examine the man later convicted and sentenced to 15 years behind bars for corrupting him. "The prejudice of not charging me with Shaik meant that the NPA was continuing with the investigation without me being aware, and was testing the evidence in the Shaik trial so that it could be used against me later. This also meant that I would be deprived of cross-examining Shaik as
his co-accused."
But Downer remains adamant that the decision not to charge Zuma with Shaik did not violate his rights to a fair trial, and questions why Zuma chose not to testify in Shaik’s defence to explain "why he was not party to any of the corruption" when Shaik and Nkobi were charged.
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