The prosecution of Jacob Zuma and arms company Thint is a mess — but does this justify abandoning the case against them?
That’s the question facing Judge Herbert Msimang as the state and the defence gear up for argument on the prosecution application for a postponement of the trial until next year and the counter-application by the defence for charges to be permanently withdrawn.
To be fair, most of the mess was not caused by the team that has led the investigation and prosecution since 2001, but can rather be laid at the door of their erstwhile politically appointed masters — former national director of public prosecutions Bulelani Ngcuka and former minister of justice Penuell Maduna.
It is these two gentlemen whose actions and decisions — some seemingly influenced by political rather than legal considerations — have placed the prosecution in the difficult situation it now faces.
First came the leash Ngcuka placed on his investigators, vetoing their request to raid Zuma in 2001 when search and seizure operations were carried out against Schabir Shaik, Thint and its French parent, Thomson/Thales.
That left the state light on evidence on Zuma’s point of the Zuma-Shaik-Thint love triangle, impacting on the initial decision not to charge Zuma alongside Shaik and probably prompting the very wide terms of the search warrants eventually executed against Zuma last year.
Zuma successfully challenged the broadness of those warrants, leaving the state with a headache in relation to the admissibility of the evidence gathered, despite having lodged an appeal.
Second came Ngcuka’s decision to meet a group of black editors and give them an off-the-record briefing on matters concerning rumours circulating about him, as well as their alleged relationship to investigations being pursued by the National Prosecuting Authority (NPA).
Whatever the nature of the meeting, it was ill-judged and has allowed Zuma significant purchase for criticism in his latest affidavit.
Private briefings on sensitive matters by the person ultimately responsible for taking prosecuting decisions “without fear or favour” could only give rise to allegations of playing politics or acting in bad faith — as indeed happened.
In their latest court papers Zuma’s advocates have had rather a field day with Ngcuka’s attempts to defend the briefing.
“Ngcuka’s allegation that [the occurrence of] the meeting was a ‘matter of public record’ is rendered all the more extraordinary by his careful failure to disclose anything that occurred at the meeting,” they say. “Instead, his affidavit is devoted to an attempt to disprove what I have to say about the meeting, rather than his version of what was actually said.”
Third came the protracted and awkward efforts to obtain the cooperation of Thomson/Thales. These resulted in Ngcuka being suckered into withdrawing charges against Thint in exchange for an affidavit from Thales executive Alain ThÃ