Lawyer battles to convince judges that Thales bribery case should be stayed

A lawyer for the French arms firm accused of bribing then deputy president Jacob Zuma, advocate Anton Katz, appeared to have a tough time convincing three judges that the case against Thales SA should be permanently dropped.

It is the state’s case that Thales, in a deal brokered by Zuma’s former financial adviser Schabir Shaik, agreed to pay Zuma an annual bribe of R500,000 to protect the company from any potential investigation into the R60bn arms deal.

The company had scored a R2.6bn contract to provide four navy frigates to SA’s government as part of that deal.

Thales SA, which formerly traded as Thomson-CSF, contends it “has suffered significant and irreparable prejudice to its fair trial rights” as a direct result of the National Prosecuting Authority’s (NPA’s) delay in prosecuting it from 2009 to 2018.

Thales argues that the NPA was solely responsible for this nine-year delay, which was caused by then acting prosecuting head Mokotedi Mpshe’s unlawful decision to withdraw the corruption case against Zuma that was later overturned in court.

The company contends it suffered such prejudice because it does not have “access to any possible witnesses to assist it to prepare its defence or even determine whether it has a defence”.

Cannot respond

Thales claims that “all of the employees/officials who were involved in the relevant events are not in any way at all available to assist it in preparing for the criminal trial”.

This, it argues, has left it in a position where it cannot respond to the evidence against it, and does not even know what it should plead to the charges against it.

Katz, one of the lawyers arguing Thales’s case, told the Pietermaritzburg high court on Tuesday that Alain Thetard, the author of the notorious “encrypted fax” found by the Durban high court to have constituted an agreement to bribe Zuma, left the company in 2011 and cannot be traced.

He added that Thetard, who the state says also cannot be located by Interpol, has made it clear he will not return to SA.

The NPA says it withdrew charges against Thales in the Shaik case because Thetard promised to co-operate with its investigation, but later reneged on that deal.

According to Thales, Pierre Moynot, who previously represented the company when it was charged alongside Zuma, has Alzheimer’s disease and is not available to testify at the trial.

Ajay Sooklal, who formerly worked as a lawyer for Thales and has confirmed that he is prepared to testify at any future Zuma or Thales trial, claims he “witnessed first-hand Mr Pierre Moynot paying Mr Zuma various sums of money”.

Medical condition

He also claims Moynot often personally settled Zuma’s hotel bills in Paris and Brussels and “gave Mr Zuma cash money in Brussels, in London and in Paris”.

The judges hearing Thales and Zuma’s applications for permanent stays of their prosecution asked on Tuesday for further clarity about Moynot’s medical condition and its impact on his ability to testify.

“This court will need to decide: will this trial be fair, bearing in mind, not speculation, but the proven facts?” Katz asked. “And the proven facts are that Thales cannot obtain a fair trial, on the facts and circumstances of this case.”

He attempted to argue that Thales is unable to defend itself against the charges because at least four key officials involved in the events that form the basis of the case are no longer available to it as witnesses.

But judges Esther Steyn and Bhekisisa Mnguni were unconvinced, and questioned Katz about whether Thales company lawyer Christine Guerrier, who had worked with the firm for years, would not be able to assist the company in its response.

Judge Thoba Poyo-Dlwati added: “Where does it say she was not there?”

Mnguni and Steyn added: “Because she was an in-house counsel.”

Katz contends that Guerrier only joined Thales after they had allegedly committed the crimes they now stand accused of, and was therefore unable to assist the company in its defence.

He then urged the court “not to speculate” on whether the lawyers who had previously represented Thales would be able to assist it in defending itself.

“I hope you are not suggesting that we are speculating by that submission,” Poyo-Dlwati said.

“I would never do that,” Katz said.

The judge then pointed out that Thales had complained that it lacked the institutional knowledge it needs to defend itself, “but Ms Guerrier seems to have been there from the time that these indictments were formulated”.

“That’s right,” Katz said.

Katz also argued that then national director of public prosecutions Shaun Abrahams should have consulted with Thales before making this decision, but instead refused to hear the company’s representations on why they should not be prosecuted.

According to Katz, Abrahams’s reasons for making the decision — which includes that there is a reasonable prospect that Thales will be convicted — are “procedurally irrational”.

Katz contended that Abrahams refused to consider Thales’s representations on why the case against it should not continue and made his decision “on a knee-jerk reaction”.

But Steyn was not convinced and pointed out that Abrahams had considered a memorandum about the case against Zuma and Thales.

“So that is factually not correct,” she said.

The case continues.