The deaths of four key witnesses in the arms-deal related racketeering and corruption trial of former president Jacob Zuma and French arms company Thales meant that neither accused could adduce or challenge evidence.
This, it was submitted by lawyers for the two before Pietermaritzburg high court judge Nkosinathi Chili on Thursday, meant they would not get a fair trial and the prosecution should be halted.
Beyond this, advocate Nqaba Buthelezi, who appeared for Zuma with advocate Dali Mpofu, said it also left the state with a hopeless case.
He said the state wanted to run the case “knowing they can’t win it” to “save face” because it had spent hundreds of millions of rand pursuing a “dud case” involving charges related to R3m and events of 20 years ago.
Zuma has piggybacked on an application brought by Thales for a discharge of the charges based on the fact that two of its key witnesses, directors of the company who were alleged to be involved in the dodgy deals with Zuma and facilitated by his then financial adviser Schabir Shaik, had died.
If Thales succeeds, it was argued for Zuma, the prosecution against him must also be stopped.
Advocate Barry Roux, for Thales, said the company had been ready to stand trial since it pleaded to the charges in May 2021.
“This is not a tactical ploy to delay the trial,” he said.
After the deaths of Pierre Moynot and Alain Thetard (in 2020 and 2022, respectively), the company had now been left “naked” and “paralysed from the neck down” with no witnesses to call in its defence.
“Thales is a company, which means that vicarious criminal liability is imputed on them. Whatever the directors did wrong they must stand in for that. So it’s not a case where you have the accused and he can tell his story, it’s a case where the company is dependent on the offending directors,” Roux said.
He said in the racketeering charge and general corruption charges, the state alleged Shaik made various payments to Zuma over the 10-year period and Thales was also criminally liable for those payments because there was a common purpose between the directors of Thales and Shaik to make the unlawful payments.
“There were only two persons acting on behalf of Thales in that period in SA, Mr Moynot and Mr Thetard.
“So this common purpose must have been formed by either or both with Shaik. And they are dead.”
On the contention by the state it could call Shaik, he said: “Ja, right. He has been found to be unreliable, not to be credible, not only by the trial court but by the Supreme Court of Appeal and the Constitutional Court.”
Regarding another contention by the state that Thetard had always said he would not give evidence, Roux said he had only said he would not give evidence in any forum in SA because he was scared of being arrested.
“But he could have testified from France,” he said.
He submitted Chili should find Thales would be subject to trial prejudice if it was forced to face all or some of the charges and leave it up to the National Prosecuting Authority “to decide what it will do”.
In his submissions Mpofu raised the issue of the “encrypted fax” — which was first introduced during the Shaik trial through the evidence of Thetard’s secretary Susan Delique, who has also died.
In the fax, which was translated from French to English, Thetard reports meeting Shaik and subsequently Zuma and that Zuma gave him an “encoded” confirmation to “validate the request by SS”. He recorded R500,000 per annum to be paid for “protection” in investigations regarding the award of the arms deal.
Mpofu said without Delique and Thetard, Zuma’s rights to challenge evidence would be infringed.
He said the KPMG forensic auditor who testified in Shaik’s trial, Johan van der Walt, had also died.
While the state had said it would call the co-author of the forensic report, that was also unacceptable.
“We want to cross-examine Mr Van der Walt based on what he testified during the Shaik trial.”
He said the complaints by the state of Zuma’s so-called “Stalingrad tactics” were like a stuck record and were irrelevant to the present proceedings.
Advocate Andrew Breitenbach, for the state, submitted both Zuma and Thales were, in effect, trying to have a second bite of the cherry after they had both failed in their applications for permanent stays of prosecution.
He said the relief they wanted “was effectively the same”.
In the permanent stay application in 2018, Thales had specifically relied on its inability to get assistance from Moynot and Thetard, saying Moynot was too ill and Thetard was unwilling.
Zuma, in his application, had relied on forensic and evidential prejudice that, he said, resulted from the loss of witnesses, loss of evidence and the general dimming of memories attendant to the lengthy delay in the start of the trial.
The court had dismissed both applications.
Breitenbach persisted with the argument that Thales could consult and, if necessary, call Shaik as a witness. And there were other possible witnesses, including Thetard’s superiors (to whom he allegedly sent the encrypted fax).
The state, he said, would apply to admit hearsay evidence given by Delique at Shaik’s trial, including the cross-examination, and for the admission of the encrypted fax. Thales, he said, would oppose this, but “that is a dispute for another day”.
“If due to the delay Thales is unable to adduce evidence or challenge evidence, and if this court finds that as a result its right to a fair trial has been infringed, this court can take the remedial steps to protect and vindicate its rights. And the presumption of innocence and onus on the state of proving beyond a reasonable doubt, will result in it being acquitted,” Breitenbach said.
“It is impossible for this court at this juncture to determine the actual prejudice to them. It can be measured after the court has heard the evidence.”
Chili reserved judgment.
He adjourned the trial to June 3, being a holding date, when, if he is ready, he will deliver the ruling.
Earlier on Thursday, Chili refused to grant Zuma leave to appeal to the Supreme Court of Appeal (SCA) against a ruling he made in September last year, dismissing his application that Billy Downer be taken off the case.
Chili said there were no reasonable prospects that another court would come to a different conclusion.
Mpofu placed on record that he had instructions to petition the SCA for leave to appeal.
Update: April 24 2025
This story has been updated throughout.
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