Zuma breaks silence on corruption case
If the court decides against a permanent stay of prosecution, Zuma will have run out of options. A decision in his favour will end a legal battle that’s been 15 years in the making
Jacob Zuma challenged the National Prosecuting Authority (NPA) to put him on trial for corruption 15 years ago, the former president says, arguing that the state’s "undue delay" in prosecuting him was — and is — part of a strategy to paint him as a criminal and neutralise him politically.
"I virtually challenged and invited the NPA to charge me and resolve issues of my guilt once and for all in a trial," Zuma states in a nearly 300-page affidavit filed at the KwaZulu-Natal high court last week. "I sought no favours. I wanted the matter finalised there and then [during June-August 2003], one way or the other."
In his application for the recently revived corruption prosecution against him to be dropped permanently, Zuma is adamant that, when he said "I want my day in court", it was in relation to being tried alongside his former financial adviser Schabir Shaik in 2003, or just after Shaik himself was convicted of corruption in 2005.
Zuma’s application also, perhaps for the first time, reveals some responses to accusations that he acted corruptly to benefit Shaik’s business interests. These include his contention that he regularly, and lawfully, acted to advance the interests of business groups, not for corrupt reasons, but because "the relationship of assistance between comrades remains part of the intricate relationship within African culture".
"What I did for Shaik, he also did for others," Zuma says.
Prior to Shaik’s trial, Bulelani Ngcuka, the then national director of public prosecutions (NDPP), said the state believed it had a prima facie corruption case against Zuma but was unsure if such a prosecution was "winnable".
Ngcuka went against the advice of his own prosecuting team when he made that history-altering announcement. His 2007 recorded "spy tapes" conversations with the then Scorpions head Leonard McCarthy later led the NPA to withdraw the corruption case against Zuma in 2009, based on alleged political interference in it.
The decision to drop the case, made by the then acting NPA head Mokotedi Mpshe, was successfully challenged in court by the DA. Former NDPP Shaun Abrahams reinstated the Zuma prosecution in March this year.
Now Zuma faces charges relating to incidents that are alleged to have occurred around two decades ago — and which he now suggests may have a perfectly innocent explanation.
The genesis of Zuma’s troubles was in 1997 when a French arms company called Thomson-CSF, now known as Thales, scored a R2.6bn contract to provide four navy frigates to SA as part of the wider R60bn arms deal.
As corruption rumours grew, the state alleges that Thales — through its SA subsidiary Thint — agreed in 2002 to pay R500,000 a year to Zuma, who was deputy president at the time, for his "political protection" in any investigation — a deal allegedly brokered by Shaik.
The state further holds that Shaik and his Nkobi Holdings made 783 payments to Zuma, totalling more than R4m, between October 25 1995 and July 1 2005. In return for these payments, the state claims, Zuma abused his position as an MEC in KwaZulu-Natal and as deputy president of the ANC to do unlawful favours for Nkobi Holdings and Shaik, who was jailed for his role in the matter.
If a reasonable possibility exists that this was the explanation for Shaik’s conduct, I could not be convicted on this pivotal chargeJacob Zuma
In his application for a permanent stay of prosecution, Zuma states that the truth of these claims would need to be tested during his trial.
"I, however, am now asked to remember details of conversations, nuances of conduct and motivations for my actions and what exactly my actions were in regard to events long ago. In short, I must now, more than 17 years after the event, think and reconstruct as a feat of memory, what occurred in relation to these charges and transactions that this prosecution is about.
"Moreover, I would, as a matter of course, act to advance the interests of business groups, given my political role and government position. This would be completely lawful and permissible."
Zuma says he wishes to lead evidence, about how "assurances as to the status of a BEE partner were often sought from me", to prove these claims. But, he says, doing so is difficult given how much time has passed.
He further details how the failure to charge him along with Shaik prevented his lawyers from being able to cross-examine Shaik, and potentially prove Zuma’s innocence.
As an illustration of that argument, he refers to the so-called "encrypted fax", written in March 2000 and sent by Thales’s Alain Thetard to his bosses in Paris.
The state argued successfully that the fax set out how the company would pay Zuma R500,000 a year in exchange for his political protection from any arms deal probe.
The fax is addressed to Thomson-CSF’s sales director for Africa, Yann de Jomaron, and headed "Subject: JZ/S.Shaik".
It reads: "Dear Yann: following our interview held on 30/9/1999 with S Shaik in Durban and my conversation held on 10/11/1999 with Mr J P Perrier in Paris I have been able (at last) to meet JZ in Durban on the 11th of this month, during a private interview in the presence of S S.
"I had asked for S S to obtain from JZ a clear confirmation or, at least, an encoded declaration (in a code defined by me), in order to validate the request by S S at the end of September 1999. This was done by JZ, (in an encoded form).
"May I remind you of the two main objectives of the ‘effort’ requested of Thomson-CSF are:
• Thomson-CSF’s protection during the current investigations (Sitron)
• JZ’s permanent support for the future projects
"Amount: 500k ZAR per annum (until the first payment of the dividends by ADS [African Defence Systems, a joint venture with Nkobi])."
What it means
Zuma’s application offers a glimpse into his response to corruption charges — and argues he has been intentionally maligned by the NPA
But Zuma maintains there are many possible explanations for that fax, and denies that it represented "a tri-party arrangement" between himself, Shaik and Thales.
"One alternative explanation was that Shaik held out to Thint that they needed my protection, unbeknown to me, while Shaik pocketed the protection money for himself … The other possibility is that the fax was created in order to frame Shaik and me.
"The evidence in the Shaik trial, on which this analysis is based, strongly supports such a construction. It is clear from the documentation found admissible against Shaik that the French arms companies thought that he could assist in procuring a contract for a bidder associated with them. This notion was probably influenced by a number of features Shaik could have held out to them, from both his relationship with me, to his brother Chippy [Shamin Shaik] being the head of the defence procurement division."
He adds: "I have been denied the opportunity of cross-examining Shaik on this issue … If a reasonable possibility exists that this was the explanation for Shaik’s conduct, I could not be convicted on this pivotal charge."
According to Zuma, the coded arrangement found to have been detailed by the fax is "strange", and he denies that he either knew about it or went along with it.
Had he been charged along with Shaik, and given the opportunity to cross-examine him, Zuma contends he "could have challenged Shaik’s evidence or indeed the state’s case on this".
Zuma further states that there is "not a single state witness involved in the arms deal who contends that I ever even remotely requested or suggested that he or she act in an improper manner in the process or that I tried to influence the process or its outcomes in any way … I indeed had nothing to do with the entire arms deal."
Zuma has also used the findings of the Seriti commission, which he appointed to investigate allegations of corruption in the arms deal, as a basis from which to attack the legitimacy of his prosecution.
Judge Willie Seriti found there was no corruption involved in the awarding of the arms deal contracts, sparking outrage from arms deal activists and opponents.
Those findings are currently being challenged in court.
Zuma is expected to return to court on November 30, when a date will be set for the NPA to file responses to both his and Thales’s applications for a stay of prosecution. Should the court find in his favour, a legal battle that’s been 15 years in the making will finally draw to a close. If not, Zuma will have reached the end of the line — pending the resolution of any appeals — and will finally stand trial.