In a detailed judgment, the High Court, KwaZulu-Natal (local division), dismissed with costs the applications brought by Jacob G Zuma, ex-President of South Africa, and Thales South Africa.
Zuma and Thales can now be indicted for racketeering, corruption, and money laundering, and Zuma for a further 12 counts of fraud.
Zuma and his legal team have used every legal ploy available to delay and obfuscate legal proceedings, referred to as the “continuing litigation saga” by the Supreme Court of Appeal (SCA) in the so-called Spy Tapes Judgment (Case No: 771/2016).
Thales attempted to have the charges against it either withdrawn or its prosecution to be discontinued.
The Arms’ Deal
The charges relate to the notorious “Arms’ Deal”, which comprised the procurement of sophisticated military equipment, and allegations of impropriety in the acquisition of strategic armaments for the Department of the Defence Force, of nepotism, conflicts of interest.
The catalogue of ‘events’ stretches back many years. In 2000 Arthur Anderson (Thales’ auditors at the time) referred to a report of bribery involving a senior government official (Zuma) relating to the Arms’ Deal in the Thales 2000 audit working papers.
The Arms’ Deal narrative unfolds like the plot of a crime novel, and includes connected parties, enablers and enforcers, offshore dealings, secret meetings, searches and seizures, convicts at the door of death improving their golf handicap on the golf course, changes in political power, illicit payments of millions of rands, foreign governments, encrypted faxes and pre-agreed coded indications to be used in meetings, ‘spy tapes’, conspiracy theories, and allegations of abuse of prosecution processes.
The main players are Zuma (then Deputy President of SA), Shamin Chippy Shaik (Chippy), Schabir Shaik (Brother of Chippy, then-chief of acquisitions in the Department of Defence, who held interests in Thales and African Defence Systems (ADS) – bidders for arms deal contracts). Shaik was Zuma’s financial advisor. Also making an appearance are Patricia de Lille (then Minister of Defence), and Alain Thétard (executive chairman of the board of directors, CEO of Thales, and director of ADS – the consortium’s sub-contractor for the corvette combat suite supply).
Stay of prosecution
Zuma and Thales, comrades in the ultimate act of defiance, applied for permanent stay of prosecution. The two cases were heard together as the issues were substantially the same.
Zuma’s grounds were based on violations of rights, and alleged misconduct by successive National Director of Public Prosecutions (NDPPs), prosecutors and officials in SA’s National Prosecuting Authority (NPA).
Thales argued that former NPA head Shaun Abrahams’ decision to re-institute the criminal prosecution was inconsistent with the Constitution, invalid, ultra vires (Investopedia defines this as acts beyond a corporation’s authority to perform), in breach of the NPA’s prosecution policy, and irrational. Both parties argued that a permanent stay of prosecution should be granted on the grounds of unreasonable delay.
- Court’s reasoning
Zuma – the Ngcuka decision
Former NPA head Bulelani Ngcuka publicly disclosed in 2003 that after careful consideration of the evidence, the NPA had a prima facie (first glance) case against Zuma, but their prospects of success were negligible. Zuma’s counsel argued that a prosecutor is obliged to prosecute when he has a prima facie case, and that Ngcuka was conspiring to keep Zuma in the “public controversy”.
The court found that depriving Zuma of a joint trial with Shaik and the latter’s Nkobi Group did not prejudice him, and any was justifiable in the context of the ongoing investigations.
Zuma – the Pikoli decision
Vusi Pikoli, a former NPA boss, reversed the Ngcuka decision not to prosecute Zuma, and on June 20, 2005 announced his decision to indict Zuma and Thales. This made Zuma and Tales officially “accused persons”.
Pikoli declared that the “contents of the Browse Mole report had nothing to do with and played no part in the investigation and prosecution of Zuma and Thales, and that during his time as the NDPP, it was not handed to the investigators and prosecutors handling the investigation and prosecution of this case”.
Zuma’s counsel contended that the Constitution entitled an accused person, which Zuma was, to have right to a trial without an unreasonable delay. The NPA in their view, had sufficient evidence to prosecute Zuma.
The court noted that Zuma had challenged the search warrants, and the NPA had to await the outcomes of the challenges, to seek clarity on whether they could access and use the documents found, without infringing on the fair trial rights of Zuma or Thales. Thus, both the NPA and Zuma contributed towards the delays.
Zuma – the spy tapes
Zuma’s counsel contended that the spy tapes were proof that the investigation and prosecution of Zuma was manipulated to suit external political machinations; that former Scorpions head Leonard McCarthy exercised his powers for political ends, his conduct was unlawful, improper, not independent, and influenced by persons outside the NPA.
The court noted that in the Zuma vs Democratic Alliance & others case, Zuma conceded and the SCA found in the DA review appeal that former acting NPA head Mokotedi Mpshe’s decision to withdraw the charges was irrational.
As Zuma was a party to the DA review application, the findings of the SCA on this issue are binding.
Further, the arguments were not aimed at the merits of the matters: both the NPA and Zuma contributed to the length of time (which was contended by Zuma and Thales to be unreasonable long) from April 2009 to October 2017 thus the period was not unreasonable.
Zuma – the Browse Mole investigation
The Browse Mole Report is a ‘top secret’ intelligence document of the Directorate of Special Operation, which was leaked to the public in 2007. The document contained political intelligence and numerous allegations and unsubstantiated statements about prominent political figures in South Africa and the African continent, including Zuma.
Zuma’s counsel contended that the Browse Mole report was a smear campaign against Zuma, and not produced for legitimate prosecutorial purposes.
The court referred to previous judgments in which the allegations regarding McCarthy were “diversionary and irrelevant”. The court agreed with the view that there was no rational link between McCarthy’s alleged conduct and Mpshe’s decision to discontinue the prosecution.
The court cited ‘National Director of Public Prosecutions vs Zuma 2009 (2) SA 277 (SCA)’, which held that “A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent ….”
Zuma – Mpshe’s 2009 decision
Counsel for Zuma contended that the public statement made by Mpshe constituted an egregious violation of the Constitution, the NPA Act, and the prosecution policy.
The court noted that Zuma had conceded (in the DA review appeal at the SCA) that Mpshe’s decision to withdraw the charges against him was irrational.
The court further found that McCarthy’s conduct had no bearing on the integrity of the investigation, no proof that McCarthy was politically motivated. In any event, the seriousness of the offences facing Zuma outweigh any prejudice.
The court found that the delay in Thales’ trial would not result in trial prejudice.
Thales’ challenge to Abrahams’ decision
Thales averred that Abraham’s decision to re-instate the prosecution was inconsistent with the Constitution and invalid. Further, it said the NDPP does not have a general power to institute a prosecution.
The court found that this view is extremely narrow and without merit.
The court opined that the NPA Act empowers the NDPP to exercise its powers, duties and functions. This is supported by previous court decisions.
The court found that it cannot be said that Abrahams had not grappled with the decision of re-instituting the prosecution against Thales nor can it be said that he did not have rational reasons for prosecuting Thales with Zuma. Not only did he consider the evidence relating to the charges, but also the public interest in having the matter prosecuted.
The court made the following order (briefly summarised)
- Granted/no cost order: NPA’s application for condonation regarding the late delivery of the answering affidavit/extension.
- Granted/no cost order: NPA’s application to expunge sections of Zuma’s replying affidavit on the grounds that they are scandalous, and/or vexatious, and constitute impermissible new matter raised in the reply.
- Dismissed with costs: Application brought by Thales to expunge sections of lead prosecutor Advocate WJ Downer’s answering affidavit dated March 11, 2019.
- Dismissed with costs: Zuma’s application to introduce the letter dated March 22, 2018 into court proceedings.
- Dismissed with costs: Zuma’s application brought under case number CCD30/2018.
- Dismissed with costs: Thales’ application brought under case number D12763/2018.
Zuma and his legal team have left a lengthy trail of judgments in their wake, spanning criminal law, constitutional law, and the powers of the NDPP. Our common law can only be better for it.