In the world of covert action and diplomacy it is called “plausible denial”. In court it’s known as establishing reasonable doubt.
In the Schabir Shaik trial this week, defence counsel François van Zyl focused on one crucial aspect of the state’s case — the alleged March 2000, R500 000 bribe agreement between Shaik, Deputy President Jacob Zuma and Alain Thetard, the local representative of the French Thales/Thomson Group.
Van Zyl put it to forensic auditor Johan van der Walt that Shaik would testify that Zuma, Shaik and Thetard did meet in Durban on March 10 2000 — something Zuma has so far resisted confirming — but that they discussed not a bribe for Zuma, but rather a donation to the Jacob Zuma RDP Education Trust.
The explanation is notable for the way in which it now draws Zuma directly into Shaik’s account of events. Shaik’s cards have been put on the table in a way that ascribes a particular role to Zuma. If Shaik’s explanation is not accepted by the court, Zuma is in a politically difficult position.
Whether Shaik’s explanation will stand as reasonably possibly true, or is dismissed as a fabrication, will be for Judge Hillary Squires to decide — but it is clear that the defence will need to answer doubts as to why this innocent version of events has been brought to light only now.
When a parliamentary question was put to him last year, Zuma denied meeting with Shaik and Thetard on March 11, the date on which the state suggested the meeting took place. But Zuma made no mention of the alleged meeting on the 10th or about any discussion of a donation to the trust.
The explanation of a donation would have at least suggested that perhaps there had been a misunderstanding with regard to the encrypted fax drafted by Thetard on March 17 2000 after his meeting with Shaik and Zuma.
In the fax, Thetard referred to the coded confirmation allegedly given by Zuma of a request conveyed by Shaik at the end of September 1999 for a R500 000 “effort” from Thales, which would secure Zuma’s “protection” and “future support”.
Shaik is contesting the admissibility of the fax.
For his part, Thetard never mentioned the issue of a donation to the Trust when, in April this year, he drew up two affidavits confirming he had authored the note that the state alleges was faxed — but denying it had anything to do with a bribe.
The affidavit, placed before the Pietermaritzburg High Court during a separate urgent application by Thales, merely claimed that the R500Â 000 referred to a request from Shaik for operational funding for his business.
And finally, Shaik’s own detailed plea explanation, entered at the start of the trial, made no mention of any discussion of a donation to the Trust from Thales.
This week Shaik’s counsel for the first time tendered his client’s explanation for the sequence of events and cryptic correspondence that the state alleges referred to the bribe agreement.
Van Zyl explained that Shaik had offered to raise funds for Zuma’s charity and that he had discussed a donation from Thales when he met with Thetard on September 30 1999. He had then told Zuma and said he was sure the French would oblige.
Van Zyl said Shaik would testify that at the beginning of 2000 he was asked by Zuma when the French were going to pay up, as the Trust, which supports needy students with tuition fees, was in need of funds.
It was this donation that Shaik was referring to when he wrote to Thetard on February 11 requesting a meeting to discuss “our understanding Re: Deputy President Jacob Zuma”.
Van Zyl told the court that Shaik was certain the meeting took place on March 10 at King’s House in Durban: “Zuma was under pressure, he couldn’t stay long … At this meeting the matter of the donation was discussed and Mr Thetard undertook, in Zuma’s presence, that Thomson would make a donation, but no amount was mentioned.”
First prize for the defence would be to have the fax ruled inadmissible, because its author has refused to come to court to be cross-examined on its content. But Van Zyl has launched other attacks on the document.
He told the court Shaik would deny any coded declaration was asked for or given and he argued that as the three men were meeting privately, there was, in any case, no need for secrecy. The Thetard fax states that Zuma had given a “coded” validation of Shaik’s request for the annual R500Â 000.
Van Zyl also questioned why Thetard would have sent the secret fax to his superior, Yann de Yomaron, in Paris on March 17, when De Yomaron had allegedly been in South Africa for a board meeting with Thetard only three days earlier.
Van Zyl said Shaik’s increasingly strident correspondence with Thetard over the “very important matter” that had been sanctioned for implementation but not followed through by Thales did not refer to a bribe, but was driven by Shaik’s embarrassment at the company’s failure to make the promised charitable donation.
Van der Walt responded that nowhere in his audit had he found any mention of such a donation to the Education Trust or any corresponding payment. Instead the matter had been handled as if it were a secret.
“If it was such a noble idea, why was it not reflected in the correspondence?” he asked.