The trial of Durban businessman Schabir Shaik delivers a daily reminder of how the arms deal continues to rumble across the country’s political landscape, dragging corruption allegations and smashed reputations in its wake.
This week the court relived the ignominious process whereby the Cabinet crushed an attempt by Parliament’s Standing Committee on Public Accounts (Scopa) to flex its oversight muscles in probing the deal.
In particular, the court heard evidence under oath of how President Thabo Mbeki misled the nation during a special national television broadcast on January 19 2001.
In that extraordinary address Mbeki delivered a stinging attack on Scopa and attempted to justify his decision to exclude the Special Investigation Unit (SIU) led by Judge Willem Heath from the multi-disciplinary investigation of the arms deal, contrary to the recommendation by Scopa.
In his speech, Mbeki referred to legal advice obtained from advocate Frank Kahn, then the Western Cape director of public prosecutions, and advocate Jan Lubbe, then the senior legal adviser to the Heath unit. Mbeki quoted one extract of their advice, which found that “at this stage there is no prima facie evidence in law that any person or persons committed a criminal offence”.
However, he omitted to tell the nation that the two senior lawmen did in fact say there were legally “sufficient grounds” for the Heath unit to conduct an investigation and that, in their opinion, such an investigation was warranted. He also failed to disclose that they endorsed the recommendation by Scopa, saying it was “imperative” that the Heath unit be involved in the multi-agency probe.
At the time the full text of the legal advice was leaked to the media and experts pointed out that “prima facie evidence of a criminal offence” was generally the end product of an investigation rather than its starting point, but the government remained steadfast in its refusal to include the SIU.
In court this week Lubbe was called by the state to confirm his advice to the president and the fact that it was ignored. Choosing his words carefully, Lubbe stated that Mbeki’s address “did not reflect that we advised that the SIU should be part of the investigation”.
Mbeki’s office has indicated he will not comment at all on the court proceedings until they are over.
The state has focused attention on the exclusion of the Heath unit because of a controversial letter signed by Deputy President Jacob Zuma and sent to Scopa chairperson Gavin Woods on the same day as Mbeki’s January 19 public address.
Giving evidence this week, Woods testified that he believed the letter was an attempt to intimidate him in relation to the committee’s bid to probe irregularities in the arms deal. He said he found its attack on his committee’s interim findings and on him personally to be “sarcastic” and “spurious”. He testified that the letter formed a crucial part of what Judge Hillary Squires encapsulated as “a hatchet job on your committee from somewhere on high in government” that eventually led to the emasculation of Scopa and Woods’s own resignation as chairperson.
The state has suggested that Zuma’s letter flowed from a bribe agreement allegedly concluded in March 2000 among Zuma, Shaik and Alain Thetard, the local manager of French defence company Thomson CSF. Thetard’s handwritten note of his March 2000 meeting with Shaik and Zuma — the notorious “encrypted fax” — records a request for the payment of R500 000 a year in return for “protection” during the investigation of the arms deal.
The state has argued that Zuma’s intervention in attacking Woods and defending the arms deal, and the exclusion of the Heath unit, were elements of that “protection”.
The court has heard evidence that Shaik and Thomson were concerned about the possibility of an investigation by the Heath unit. In terms of its governing legislation, the SIU is empowered to apply for the cancellation of a contract tainted by corruption; further, its cases are based on the lower civil law standard of proof — resting on the balance of probabilities — rather than on the criminal law requirement of proof beyond reasonable doubt.
Shaik’s counsel, François van Zyl, extracted a concession from Woods that Zuma’s letter was in line with the general attitude of the executive and similar sentiments expressed by other ministers. However Woods insisted that Zuma’s letter went further, pointing out that his committee had not before or since had any correspondence from Zuma, except one follow-up letter in the same vein, and that he found it strange that an official government letter to him had been copied to main arms deal contractors.
Van Zyl also put it to Woods that as late as November 2000, long after the alleged bribe agreement, Zuma had supported Scopa’s attempt to probe the arms deal and protected Woods’s colleague, African National Congress committee member Andrew Feinstein, who was coming under pressure from the party over Scopa’s stance. Woods conceded that this might have been the case.
What Van Zyl omitted to note, however, was that by November 2000 Thomson had not paid any of the money allegedly promised to Zuma and that Shaik was writing urgent letters to Thomson about its failure to honour an “undertaking” to his party. Van Zyl has indicated that Shaik will testify that this undertaking related to a donation to the Jacob Zuma Education Trust, not to any bribe.