When Schabir Shaik enters the dock for trial on Monday October 11, he will have an unseen political behemoth beside him – in the absent, but potent, form of Deputy President Jacob Zuma.
Zuma has denied any wrongdoing, but new documents setting out the details of the case against Shaik make it clear that the state persists with the allegation that Zuma was a conscious party to the corruption for which Shaik is charged.
In a nutshell, Shaik is accused of bribing only one man: Zuma. And if Shaik goes down, the deputy president must follow. If Shaik goes free, Zuma’s path to the Presidency is cleared. The stakes at the trial, political and personal, could hardly be higher.
Shaik faces two counts of corruption: the first relating to a series of payments made for the alleged benefit of Zuma between 1996 and 2002, totalling R1,25-million; the second relating to the alleged solicitation of a R500 000 a year bribe for Zuma from French defence company Thales.
Shaik faces a third charge, of fraud, relating to the writing off of payments made by his Nkobi group – some allegedly for the benefit of Zuma and some for the benefit of Shaik.
In further particulars on its case filed by the state last week, advocate William ”Billy” Downer is blunt about the alleged role played by Zuma.
Downer states that the crux of the state’s case is that payments to Zuma by the Nkobi group were bribes, that the alleged agreement in respect of annual payments to Zuma by Thales was a bribe agreement and that, ”Yes, Zuma was a party to the bribe agreement.”
Downer continues to maintain that the deputy president attended a meeting with Shaik and Thales director Alain Thetard on March 11 2000 at which Zuma indicated his approval of the Thales payment.
The state persists with this allegation notwithstanding a formal written denial by Zuma – and despite Thetard’s belated repudiation of that crucial meeting.
The state has relied, for evidence of the meeting, on a contemporary handwritten note by Thetard.
In it, the Frenchman refers to a meeting with ”JZ” and ”SS” at which Zuma gave a coded endorsement of the request for an ”effort” to be made by Thales.
Thetard recorded that the objective of this ”effort” was the protection of Thales in the context of investigations of the arms deal and ”the permanent support of JZ in future projects”.
Thetard noted an amount attached to this effort: ”500K ZAR per year.”
In August this year Thales made public a statement by Thetard in which he finally admitted being the author of the note, but maintained it was a ”haphazard” record of ”separate issues” and in no way referred to a bribe. He claimed the note was never sent to his superiors, but was discarded.
Thetard has refused to testify in South Africa.
The state claims the note was indeed transmitted to Thales headquarters in encrypted form; that an arrangement was indeed made to pay Zuma; and that R500 000 was indeed paid for his benefit, disguised as a donation to the Development Africa Trust, run by millionaire Durban businessman Vivian Reddy.
In relation to the many payments to Zuma by the Nkobi group, Downer alleges that Zuma acted together with Shaik and others ”in the furtherance of a common purpose … to secure and cement the political connections that the accused [Shaik and his companies] thought necessary for achieving success in conducting business … ”
The state alleges the payments ”were made and received in order for the accused … to benefit from Zuma’s powers relating to the public offices he held”.
”Zuma was effectively placed on a retainer,” said Downer.
The payments, detailed in a schedule of 238 separate amounts, mostly did not go straight to Zuma. Only 26 of them, totalling R223 589, are alleged to have benefited Zuma directly, either through payments into his personal account, payments for two of his motor vehicles, or payments in cash.
The rest of the ”indirect benefits” to Zuma are made up of payments for rent, bond and loan repayments, payments on behalf of his wives [including his then wife, Foreign Affairs Minister Nkosazana-Dlamini Zuma] and payments on behalf of his children. The latter include school and university fees and living allowances.
Zuma has claimed that the monies paid by Nkobi were effectively interest-bearing loans. The evidence to back up this claim has never been made public, though it was accepted by Parliament’s ethics committee.
The state claims there is no documentation that credibly supports this claim and that there is no evidence of Zuma making any repayments to Shaik or Nkobi. Neither did such ”loans” make any business sense for Nkobi, which was constantly cash-strapped and couldn’t afford them.
Not only does the state allege that Shaik paid, but that Zuma performed.
Aside from the allegation of a general agreement for Zuma to support Shaik’s businesses and to allow Shaik to trade on his name, the state cites several examples that allegedly demonstrate a corrupt relationship, including:
The arms deal
Initially, Thales excluded Nkobi from their South African subsidiary, African Defence Systems (ADS), the company that was to have a R450-million direct stake in the arms deal. Zuma allegedly interceded, resulting in Nkobi being granted a 20% effective interest in ADS.
Protection against investigations
In January 2001 Zuma wrote a stinging letter to public accounts committee chair Gavin Woods, attacking the committee’s the power to cancel corrupt contracts, be excluded from the investigation.
The Durban Point Development
When Shaik’s company lost out to another empowerment group, Zuma attended a meeting with the developers, Renong, and allegedly urged that Shaik be involved in the project.
Tourism school
Zuma signed a letter allegedly drafted by Shaik urging a British tourism academic to include Nkobi as a joint venture partner in a planned tourism training school in South Africa.
The witnesses
The state has assembled a massive list of 105 witnesses to pull the threads of the prosecution case together. Some idea of the scale of the Scorpions’ investigation of Shaik and Zuma is provided by the listing of 20 members of the Directorate of Special Operations as witnesses.
The most crucial witnesses are those whose identity is still being shielded, even at this late stage. They are known to include the former secretaries to both Shaik and Thetard, but there may be some other surprises from the state. Their role will be to provide context and interpretation for the documentary evidence.
Much of this evidence consists of financial records and correspondence seized during raids on Nkobi and Thales in 2001. Half a dozen computer experts specialising in forensic retrieval of computer data will be on hand to testify about the information obtained from seized hard-drives and disks.
The auditing firm KPMG was contracted by the Scorpions to analyse Nkobi’s accounts and has produced a report that is likely to be strongly contested by the defence. Shaik’s attorney Reeves Parsee told the Mail & Guardian that the report went much further than simply tracing the alleged flow of funds from Nkobi to Zuma. He said the report expressed opinions outside the purview of auditors and explored Shaik’s relationship with other high-ranking figures in a manner that was potentially embarrassing.
It is known that among the documents seized were business files Shaik kept on several Cabinet ministers. Leaked documents relating to former transport minister Mac Maharaj led to his resignation from the board of FirstRand.
The relationship between Shaik and the African National Congress, which the state at one stage claimed held a 10% beneficial interest in Nkobi, is also likely to come under the spotlight.
A risky feature of the state’s case is the number of its own witnesses who are likely to be guarded, if not actively hostile. They include: three Nkobi directors; Nkobi’s current auditors who presided over what the state alleges was the fraudulent write-off of some of Zuma and Shaik’s debt; members of his former auditing firm; the auditor of Thales’s Mauritius operation that oversaw its South African business; Nkobi’s bankers; and Shaik’s former attorney.
The state’s list is also replete with witnesses close to Zuma, including: his friend and benefactor Vivian Reddy; Mpumalanga businesswoman Nora Fakude-Nkuna (another friend who lent Zuma money); the builder of his Nkandla homestead, which the state alleges was partially funded by kickbacks from Thales; and two representatives of the Nelson Mandela Foundation, which claimed to have donated R1-million to Reddy’s Development Africa Trust via Zuma’s personal account.
Among those witnesses considered more sympathetic to the state are: the Independent Democrats’ Themba Sono, an early director of Nkobi; Gavin Woods, the former chair of the public accounts committee; and Shaik’s old nemesis, Richard Young, the local defence contractor who has pursued a private investigation of the arms deal after his company was replaced as a nominated subcontractor by a company in the Thales group.
The lawyers
Zuma may not be in court, but his lawyers will be there. Zuma has retained advocate Neil Tuchton to represent him during the case.
Shaik has engaged top Cape advocate Francois van Zyl. Van Zyl is a former prosecutor who knows his state adversaries well.
Leading the prosecution is Cape Town-based state advocate Downer, who led the Scorpions’s investigation of Shaik, assisted by Durban state advocate Anton Steynberg.
Representing Thales will be Hefer Commission showman advocate Kessie Naidu.
On the bench will be judge Hillary Squires, brought in from retirement because of the expectation that the trial will run and run.
