Thabo Mbeki and Jacob Zuma at the ANC policy conference in Midrand in 2007. Picture: MARTIN RHODES
Thabo Mbeki and Jacob Zuma at the ANC policy conference in Midrand in 2007. Picture: MARTIN RHODES

Back in 2005, Jacob Zuma’s prosecutors were intent on getting then president Thabo Mbeki to provide evidence against his deputy, stressing that Mbeki’s co-operation was essential to rebutting Zuma’s claim that he had not corruptly blocked a crucial investigation into the arms deal.

Though Mbeki’s name never made it onto the state’s list of 207 witnesses against Zuma, confidential National Prosecuting Authority (NPA) documents, handed over to Zuma’s lawyers under threat of legal action, now confirm that the NPA had repeatedly sought meetings with Mbeki to secure his evidence.

The then Scorpions believed Mbeki could testify about "Zuma’s role as deputy president while dealing with [his former financial adviser Schabir] Shaik and [French arms company Thales’ SA subsidiary] Thint".

"[Mbeki’s] support is very important," states a confidential NPA memo, written days before Zuma was charged with fraud and corruption on June 29 2005. Another says: "Without [Mbeki’s] co-operation we will encounter great difficulty rebutting Zuma’s version."

However, it would appear that Mbeki was not able to provide the state with the evidence it wanted.

The NPA documents, which run into hundreds of pages, now reveal how the state’s efforts to obtain access to witnesses and evidence — including Zuma’s 2000 official diary — were repeatedly frustrated by government departments for what they identified as legal or state security reasons.

Prosecutors used the code name "Project Bumiputera" — a Malaysian term for indigenous peoples — for the Zuma fraud and corruption case. The Project Bumiputera documents reveal that one of the Scorpions’ biggest struggles involved persuading the SA Revenue Service (Sars) that it had the legal mandate required to access Zuma’s tax records.

Correspondence reveals that Ivan Pillay, who was Sars boss at the time, obtained a legal opinion that suggested the Scorpions were only mandated to investigate offences "conducted in an organised fashion", and that the prosecutions body had to persuade the revenue service that Zuma’s alleged crimes fitted the criteria.

"It seems to me that [Sars wishes] to do everything in [its] power to stay out of this matter," former Zuma prosecutor Anton Steynberg says in a March 31 2006 Scorpions memo marked Top Secret. "I presume this may be ascribed to a desire not to become embroiled in such a politically charged and potentially damaging affair, especially when [Sars does] not stand to benefit substantially in the form of tax revenue, given Zuma’s financial position."

The ‘regularisation’ of [Zuma’s] tax affairs after years of delinquency does not exculpate him any more than a thief who repays the stolen money
Johan Du du Plooy

Steynberg adds: "More sinister motives cannot be excluded. On the most charitable interpretation, [Sars is] just being bloody-minded and overly cautious."

Zuma’s legal team, which is fighting to have the corruption case against him permanently stayed, has used that letter — as well as correspondence between former NPA head Vusi Pikoli, Pillay and former Sars commissioner Pravin Gordhan — to argue that the Scorpions strong-armed Sars into assisting them with information for a tax evasion prosecution. It is, they suggest, evidence of improper interference in the case against him.

Confidential memos and letters show the state was intent on charging Zuma with "failing to show gross income or material facts in tax returns in contravention of ... the Income Tax Act". This, after it had established through evidence led at the Shaik trial that his tax affairs were not in order.

Zuma allegedly failed to submit tax returns from 1995 to 2003 and declare income of R2.7m, and he is said to have evaded tax of R1.6m.

After months of back-and-forth communication over whether Sars could co-operate with the Zuma prosecutors, a February 19 2007 letter to Pillay from Pikoli reveals that the revenue service provided then senior staffer Mark Kingon and Johan van der Walt — who had prepared the KPMG report used in the Shaik trial — to assist the Scorpions.

According to lead Zuma investigator Col Johan du Plooy, in an affidavit filed at the Constitutional Court, Zuma settled his tax problems after being served with the indictment against him — which included tax evasion charges — in 2007.

"The ‘regularisation’ of his tax affairs after years of delinquency does not exculpate him any more than a thief who repays the stolen money, or a shoplifter who attempts to replace the stolen goods on the shelf after he is caught," says Du Plooy.

The NPA’s Zuma files also reveal how Zuma prosecutors Steynberg and Billy Downer expressed concern that the composition of their investigating and prosecuting team — predominantly white men — might leave them vulnerable to claims of racism before Zuma’s trial even began: "The investigation/prosecution team [in the Shaik trial] faced criticism relating to the fact that it consisted largely of white males, which exposed it to allegations/insinuations of racism.

"It is anticipated that these criticisms would sound even louder if the same team were to prosecute Zuma.

"It is therefore our view that investigators and prosecutors of colour [should] be included in the team from the outset, and that such persons should play a meaningful role in the proceedings so [that their inclusion is not] seen as mere window-dressing."

Within weeks, the NPA appointed prosecutor George Baloyi to join the Zuma prosecution team. He would remain there until the case was unceremoniously withdrawn by the state in 2009.

These insights have emerged about 17 years after the probe into the former president began, as part of Zuma’s last bid to stop the case against him from going to trial.

Zuma’s lawyers argue a permanent stay of prosecution is justified because the state delayed unreasonably in putting him on trial, as well as due to improper political interference in the case against him.

Zuma’s legal troubles began in 1997, when French arms company Thomson-CSF, now known as Thales, scored a R2.6bn contract to provide four navy frigates to the government as part of the wider R60bn arms deal.

As corruption rumours grew and calls for an investigation intensified, Thales allegedly agreed in 2002 to pay R500,000 to Zuma, then SA’s deputy president, for his "political protection" from any such investigation — a deal the state says was brokered by Shaik.

Against the advice of the Shaik prosecution team, then national director of public prosecutions Bulelani Ngcuka made a history-changing decision: to not charge Zuma alongside the man accused of corrupting him.

Though Zuma was not in the dock, significant amounts of evidence against Shaik seemed to implicate him in serious corruption. At the very least, it revealed that he was manifestly unable to control his own finances.

During Shaik’s criminal trial, it emerged he had paid R888,527 to the financially indebted Zuma in various ways — including for repairing his cars, paying school fees for his children, paying his bond, buying him clothes and even giving him R15,000 in Christmas spending money in 1997.

In turn, prosecutors said, Zuma tried to help Shaik’s prospective business partners — including Thales, which had picked Shaik’s company Nkobi as its black empowerment partner.

After a headline-grabbing trial, Shaik was convicted of corruption on June 2 2005 and given a 15-year prison sentence (he served only two after being granted medical parole).

In an 88-page document dated just two weeks later — June 16 2005 — and titled "Prospects of a Successful Prosecution of Jacob Zuma", Downer and Steynberg express confidence that they have strong prima facie evidence to convict Zuma on two counts of corruption (linked to his relationship with Shaik and the alleged Thales bribe), as well as fraud of parliament (linked to his alleged nondisclosure of the benefits he’d received from Shaik).

"The documentation reveals that Shaik and the Nkobi group have trumpeted their association with influential government personalities, and Zuma in particular, to business clients and prospective business clients, trading particularly on Zuma’s position of influence, ostensibly to gain business advantage," Downer and Steynberg state in the document.

"Zuma has in turn corruptly assisted Shaik and Nkobi and allowed his position to be used in the aforementioned way for the private purposes of Shaik and Nkobi, in return for receiving substantial and ongoing financial assistance from Shaik/Nkobi. These payments fund Zuma’s permanent excess of expenditure over income."

But they note that they need Mbeki’s evidence to refute Zuma’s possible defence to a potentially important piece of evidence against him: a letter, signed by Zuma, and sent to Gavin Woods, the chair of the standing committee on public accounts (Scopa).

What it means

Significant amounts of evidence against Shaik seemed to implicate Zuma in serious corruption

In that January 2001 letter, Zuma allegedly informed Scopa that further investigation of the arms deal would be unnecessary.

The letter went on to say: "We are convinced that there is no need for the Heath Special Investigating Unit to be involved in any investigation of the defence acquisition." The unit, under judge Willem Heath, was tasked with forensically investigating irregular or corrupt government contracts.

Judge Hilary Squires stated in his Shaik judgment that the letter signed by Zuma was "hostile", and proved that Zuma had been carrying out the task for which he had allegedly been bribed by Shaik and Thales — to protect them from further scrutiny.

Zuma’s defence to that claim is understood to be simple: he may have signed the letter, but Mbeki wrote it, in conjunction with the cluster of ministers tasked with resolving the controversy surrounding the arms deal. In his permanent stay of prosecution application, Zuma claims Mbeki confirmed this to be the case.

Whatever the explanation, the NPA — which was due to file its response to Zuma’s stay application on March 11 — has chosen not to list Mbeki as a witness.