State prosecutor Billy Downer presented his closing argument in Schabir Shaik’s fraud trial in the Durban High Court this week. This is an edited extract.
It was promised at the beginning of this trial, with apologies to Virgil, that the prosecution would concern an epic of arms and a man — ”arma virumque cano”. Many other issues would also be covered and the epic would concern many persons other than one man. The epic has now been traversed as promised.
Unfortunately, the epic has proved anything but heroic. The facts more aptly prompt the cry which Cicero uttered in his famous denunciation of Cataline, namely ”O tempora! O mores! [Oh the times! Oh the morals!]”.
The Constitution of South Africa obliged Deputy President [Jacob] Zuma not to act in any way inconsistent with his office, or to expose himself to any situation involving the risk of a conflict between his official responsibilities and private interests. The Constitution imposed the same obligations on Zuma in his capacity as a member of the executive council in KwaZulu-Natal.
Parliament’s code of conduct in regard to financial interests imposed the duty upon him to maintain the highest standards of propriety to ensure that his integrity, and that of the political institutions in which he serves, are beyond question.
The state has proved there were two processes bidders saw fit to follow in attempting to secure government contracts. The first is the system of formal tendering, the second a parallel informal process of private contacts with persons influential in government.
Defence witness [Pierre] Moynot from Thomson/Thales/Thint testified that armaments contracts are very highly political. He elaborated as follows:
You must deal with people at high political level who take the decision.
It was hoped that this would give the edge over competitors who might not have such contact or even be aware of such contact.
The proceedings of such meetings are not minuted.
It is particularly advantageous to employ a trusted confidant of a politician to facilitate contact with the politician, allowing access to the corridors of power which would not otherwise be available.
This scenario applied to Shaik and Zuma.
Moynot understood that Shaik’s possible references to his ”political connectivity” meant ”he knew the people”.
It is submitted that the state has proved Shaik made payments to or on behalf of Zuma during the period October 25 1995 to September 30 2002 in the amount of R1 249 225. The total amount, on the defence version, is R903 527.
The state has proved that the payments allegedly made as ”contributions to the ANC” were in truth also payments to or on behalf of Zuma and must be included in the tally.
In accordance with Moynot’s view regarding the importance of high-level informal political approval and contact, Zuma assisted in 1998 in resolving Nkobi’s exclusion from Thomson’s acquisition of ADS. Had it not been for Zuma’s assistance, Nkobi would not have been taken on as a partner, because Thomson thought that Nkobi’s inclusion, if it had not been in favour with the government, would have jeopardised Thomson’s bid for the combat suites.
It is submitted that this informal process is not in accordance with the constitutional requirement that when organs of state contract for goods and services, they must do so in accordance with legislation that establishes a system that is fair, equitable, transparent, competitive and cost-effective.
The state has succeeded in proving that Shaik employed Zuma’s assistance in similar fashion to attempt to gain private business advantage in respect of other projects, namely the Point Development/Renong, the ecotourism school and other instances.
Zuma, in contravention of his constitutional duties, at the very least exposed himself to a situation involving the risk of a conflict between his official responsibilities and private interests, and thus acted in neglect of his duties.
Shaik has admitted that the regime of his payments to Zuma was somewhat formalised at an early stage in late 1996 or early 1997 when Shaik and Zuma discussed Zuma’s financial difficulties. Shaik agreed to provide financial assistance to ensure Zuma would remain in politics.
[Downer then quotes from the court records.]
Judge Hilary Squires: You begged him … to remain in politics?
Shaik: That’s quite right, M’Lord.
Judge: And you said that you undertook in these circumstances, to assist him financially?
Shaik: That’s quite right, M’Lord.
Judge: And that would have been what you understood at that stage — that as long as he needed the financial assistance, then you would help him to remain in politics. Not so?
Shaik: Yes, M’Lord.
Judge: So repayment wasn’t uppermost in your mind at that stage?
Shaik: That’s quite correct, M’Lord.
Judge: The monies you had expended on Mr Zuma’s behalf … ensured that your friend and confidant remained in politics and he was able to assume the influential positions which he did assume, moving up to his positions in the party and also his positions in national government?
Shaik: That’s quite evident, yes, M’Lord, I agree with you.
Shaik testified eventually that Zuma’s standing in the ANC would suffer if he failed to pay his ANC commitments and liabilities. These were regarded as a matter of integrity and would be known to the ANC treasurer general.
It is submitted that Shaik’s assistance in this regard was designed to maintain intact Zuma’s integrity within the ANC and so maintain Zuma’s positions within the ANC.
The above-mentioned scenario describes a deplorable system of corrupt patronage calculated to maintain Zuma in positions where he was available to further the interests of Shaik and his companies, as he did, and so provide Shaik with the ”connectivity” that Shaik trumpeted as important for achieving business success.
It is humbly submitted that this honourable court will determine that the payments made to Zuma, who would not otherwise have been able to meet his liabilities and fund his excessive expenditure, were corruptly made in furtherance of an ongoing scheme to influence Zuma to use his office or position to advance the accused’s private business interests and/or reward Zuma for so doing in excess of his powers and/or in neglect of his duties.