Shaun Abrahams had no legal power to reinstate Thales prosecution, court hears

Former national director of public prosecutions Shaun Abrahams did not have the power to reinstate corruption charges against French-owned company Thales SA, the high court in Pietermaritzburg heard on Tuesday.

The electronic communication company is former president Jacob Zuma’s co-accused on corruption charges. It allegedly sought to bribe Zuma with an annual amount of R500 000 to further its business interests and protect it during the arms deal investigation.

The corruption trial is scheduled for October, but this week both Zuma and Thales applied to permanently stay the prosecution. Thales further applied to have Abrahams’ 2018 decision to reinstate charges against it reviewed.

Abrahams reinstated the charges against Thales after the Supreme Court of Appeal found that the decision to drop charges against Zuma — which was made in 2009 by former acting head of the National Prosecuting Authority (NPA) Mokotedi Mpshe — was irrational and set it aside. The appeal court decision was the result of a marathon legal battle between the Democratic Alliance, the NPA and Zuma — but in which Thales was not involved.

Thales’ counsel, Anton Katz SC, said the company was then treated as a mere “add-on, flotsam” and that Abrahams’ decision was unlawful for a number of reasons.

The first was that he did not have the power to institute a prosecution on behalf of the state. This power is vested in provincial directors, Katz argued, and the only time a national director could take such a decision was when he would personally appear in court to prosecute.

However, Katz faced repeated questions from the bench on this issue, with Judge Esther Steyn suggesting that he was reading the different sections of the NPA Act in isolation, when he should be looking at the Act overall.

Katz was further questioned on his argument that Thales and Zuma should be treated separately, and that Thales was instead treated as a mere add-on. Judge Thoba Poyo-Dlwati asked him to refer to the indictment and the charges against the two, because it seemed that they were very linked. Steyn added that once Mpshe’s decision was determined to be unlawful, the question became why one would treat the two accused differently. “Now that would be irrational,” Steyn suggested.

Katz countered by saying the case against each accused should be determined “on its own facts and circumstances.” According to Katz, what the NPA has done is to say: “Bad Zuma, bad Thales; good Zuma, good Thales”. This could not be constitutional, he said.

Thales’ second counsel, Mushahida Adhikari, argued that the extended delay meant that key witnesses — whom Thales would need for its defence —were unavailable. They were not employed by Thales anymore and the state had said that none of them were in South Africa nor could Interpol locate them. This meant irreparable harm to the possibility that the company would get a fair trial, she said.

She said a corporate accused was different to an accused person, in the sense that a corporate accused, which is a legal construct, acted through its people. When its people were not available, the effect was that “Thales is, in essence, an accused that isn’t there,” she said.

She acknowledged that there were documents available, but said there was no one able to explain them.

The hearing will continue on Thursday, when the state will make its arguments as to why the prosecution should go ahead.

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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