Legal trench-warfare has begun in the run-up to the trial of Schabir Shaik, accused of pursuing a corrupt relationship with Deputy President Jacob Zuma – and what it has exposed is the crucial role that will be played in the trial by the evidence of two frightened secretaries.
Last week the French arms giant Thales (formerly known as Thomson CSF and renamed ”Thint” in South Africa) lodged an application in the Pietermaritzburg High Court for the company to be removed immediately as one of Shaik’s co-accused.
The court papers reveal how National Director of Public Prosecutions Bulelani Ngcuka was apparently suckered into agreeing to withdraw charges against Thint.
This offer – mediated on behalf of the French by the ubiquitous advocate Kessie Naidu -was made in return for confirmation by former Thint director Alain Thetard that he had been responsible for the famous handwritten note that the Scorpions believed implicated Shaik and Zuma in soliciting a R500 000-a-year bribe from the French company.
Zuma has repeatedly denied there was a bribe demand.
On April 20 this year Thetard signed a one-page affidavit confirming he was the author of the original handwritten document that was allegedly encrypted and transmitted to Thales headquarters.
In what appears to have been an overly hasty response, Ngcuka wrote to Naidu, thanking him for the affidavit and stating: ”In the result we will withdraw the charges against accused No 11 [Thint] on the date of next appearance. We have also instructed the investigating team to withdraw the subpoenas and warrants against Mr Thetard.”
It seems Ngcuka assumed erroneously that Thetard’s admission meant he was now ”onside”.
(Often, prosecutors will ”indemnify” accomplices if they deliver evidence to secure convictions; in this case, as it turned out, Thetard got the deal without delivering the goods.)
The French seized on Ngcuka’s apparent strategic lapse. On May 10, Thetard produced another affidavit, now alleging that the note he had written did not ”even remotely” refer to a discussion of a bribe and that the document was never, to his knowledge or on his instructions, typed or faxed.
Thetard further attempted to provide an innocent explanation for the words that appear. He claimed that the R500 000 referred to a payment requested by Shaik ”totally unrelated to the payment of any bribe”.
He stated: ”It will be noticed that it [the note] is haphazardly and carelessly drafted with alterations and amendments. It was merely a rough draft of a document in which I intended to record my thoughts on separate issues in a manner, which was not only disjointed, but also lacked circumspection.
”It is for this reason that I did not fax the document or direct that it be faxed. I crumpled it and threw it into the waste-paper basket from where it was possibly retrieved and provided to the state.”
The Mail & Guardian understands that a key figure – the person who provided the state with evidence from the heart of Thetard’s office – is one of the two ”very scared and reluctant witnesses” referred to by prosecuting advocate Billy Downer in his original affidavit used to obtain warrants for raids conducted on Shaik and Thetard in 2001.
The two are believed to be former secretaries/assistants to Thetard and Shaik respectively.
According to Downer’s affidavit, ”Both indicated their wish not to get involved in the matter and had to be summonsed and compelled to testify. Undertakings were given to them that their identities … would not be disclosed.”
It is clear that these two witnesses will be crucial to the state’s case, providing the context for the documentary evidence and, for instance, contradicting Thetard’s claim that the note was never typed and faxed.
Downer stated: ”The evidence under oath proceeds as follows. When an article pertaining to the allegation of corruption in respect of the contract awarded … for the corvette combat suite appeared in the City Press newspaper during February 2000, numerous faxes flowed backwards and forwards between Thetard and Thales, Paris, concerning how to react to the article.
”During that period a board meeting was requested by Schabir Shaik. Arrangements were made for Thetard to go to Durban and a reservation was made for him to stay at the Holiday Inn.
”On his return from Durban a letter handwritten by him in French was typed and then faxed in encrypted form to Yann de Jomaron and copied to Jean-Paul Perrier [Thetard’s superiors].”
On Shaik’s side, Downer noted evidence to the effect that a settlement fee was paid to an employee of the Nkobi group when she left its employ. Shaik’s attorney, who presented her with a contract for signature, allegedly informed her that the confidentiality clauses were included because she knew too much about the relationship between Shaik and Zuma.
It is clear that the Scorpions appreciate the importance and vulnerability of these two witnesses. The M&G understands both have been offered witness protection and bodyguards.
In December last year Scorpions head Leonard McCarthy opposed a court application by Zuma to have the original handwritten note, thus far made public only in transcribed form, disclosed to him.
In his affidavit McCarthy stated: ”At this stage the disclosure of the handwritten version could reasonably be expected to reveal … the identity of a confidential source(s) of information in relation to the prosecution of Shaik and others, with possible detrimental consequences to those persons … ”
McCarthy added that the Scorpions were well aware that the authenticity and admissibility of that document were likely to be a central feature of the trial. ”Because of the nature of the allegations and the extent of the interest that may be adversely affected by a successful prosecution, there is a real fear that the disclosure of the identity of the confidential source or informant could reasonably be expected to result in the intimidation or coercion of a witness … ”
An out-of-court settlement was reached that the document would only be disclosed once it was also disclosed to Shaik in the course of the normal discovery process. This has not yet happened.
Now Ngcuka’s deal has indeed made that document available to the French and placed the searchlight on his scared, reluctant witnesses.
And the cost of swallowing Thetard’s bait may prove to be quite high.
Following Ngcuka’s undertaking to withdraw charges against Thint, the French company immediately initiated negotiations to secure the total withdrawal of the entire count three of the indictment against all the accused, including Shaik.
Count three is the charge that alleges that Shaik and Thetard agreed to give or offered to give the deputy president R500 000 a year. Without the company as an accused, or Thetard as a witness, the prosecution’si options are considerably narrowed.
The company has also indicated it intends to use Ngcuka’s undertaking to oppose attempts by the prosecution to take statements from Thales witnesses on commission in France and Mauritius – and also to force the state to give it access to documents seized during the 2001 raids.
It appears the Scorpions have launched a rearguard action to buy time, saying the charges will only be formally withdrawn when the Shaik trial gets under way in October.
The intention of the Thint application in Pietermaritzburg is to have charges withdrawn now. The Scorpions have indicated they intend to oppose the application.
The actual content of Thetard’s second affidavit appears less damaging than the strategic impact of his successful opening gambit. The credibility of Thetard, who played a key role in negotiating a highly controversial French frigate sale to Taiwan, has always been weak. The Scorpions also have other witnesses relating to Thetard’s varying versions of his evidence.
