WHY ZUMA’S DEFENCE WON’T FLY

The president’s representations to the NPA — about why he shouldn’t be charged again for corruption, fraud and a host of other charges — are unlikely to succeed

hort of a miracle, President Jacob Zuma’s argument for why the 2007 corruption indictment against him should not be revived will flop. Here are three reasons why:

The Shaik conviction

Zuma’s former financial adviser Schabir Shaik was convicted, in a damning ruling in 2005, of corrupting Zuma for payments made for the benefit of Zuma and his family.

Key to that judgment was a R1m bribe allegedly solicited for Zuma by Shaik from French arms company Thomson Csf/thint, (now known as Thales), in exchange for Zuma’s influence in shutting down any arms deal inquiry. That alleged “bribe” is linked, says the state, straight back to Nkandla.

According to the indictment Zuma will face if charged, he needed R1.34m to complete construction work at his homestead, long before it became the subject of former public protector Thuli Madonsela’s “Secure in Comfort” report.

“At no stage during construction and thereafter has [Zuma] been able to settle the outstanding amount, or obtain finance without the intervention and assistance of third parties,” the 2007 indictment reads, “including arrangements for payment through Shaik in accordance with the agreement to disguise payments to [Zuma].”

In court, Shaik admitted that he’d made payments of R888,527 to Zuma, but insisted they “were intended to assist Zuma, a former comrade in the struggle against apartheid, and were made out of friendship or alternatively were intended to be loans to be repaid”.

There’s no disguising the fact that Shaik lavished a fortune on Zuma.

But Shaik testified that his request for money from Thales “had nothing to do with an inquiry into the arms procurement process”, and he had merely asked “for a donation to be made to the Jacob Zuma Education Trust”.

The supreme court of appeal (SCA) found this to be “clearly false”.

Shaik also failed to convince any of the courts that there was no corrupt intent behind the payments to Zuma.

The SCA ruling is clear: “There is, in our view, only one reasonable inference to be drawn. It is that, in making the payments, whether as inducement or reward, Shaik intended to influence Zuma, in furtherance of the business interests of Shaik and his companies, to act in conflict with the duties imposed upon Zuma by the terms of [the constitution]”.

When contacted by the Financial Mail, Shaik said he was prepared to take the stand as a state witness if subpoenaed. But he stressed this was a legal requirement for any citizen.

The admissible evidence

As part of his “Stalingrad” legal strategy, Zuma challenged the evidence the state had gathered against him at every turn. In particular, his defence focused on the search and seizure raids conducted by the Scorpions in August 2005, in which 93,000 documents were seized. Zuma’s lawyers argued the search warrants were “overbroad and vague”, effectively authorising an “unbounded search”. This, they said, violated Zuma’s and his lawyers’ right to privacy.

The SCA rejected that argument, ruling that the raids were legal. This decision was upheld by the constitutional court by 10 judges to one.

The upshot: all the documents seized can now be admitted to court.

This is critical, especially since former Scorpions investigator Johan du Plooy told the constitutional court a decade ago that the case against Shaik was bolstered by the Zuma evidence. While Shaik’s conviction was due to five incidents in which Zuma intervened to further Shaik’s interests, Du Plooy said the prosecutors now believe they have evidence of 28 such incidents.

Central to Shaik’s corruption was an “encrypted fax”, written in March 2000, sent by Thales’s Alain Thetard to his bosses in Paris, setting out how the company would pay Zuma R500,000 in exchange for his political protection from any arms-deal probe.

Prosecutors had asked the high court to issue a letter to Mauritian authorities, asking for that original fax and 13 other documents, to circumvent any challenge to the admissibility of the documents in Zuma’s trial.

Zuma’s legal team also argued in the Mauritian high court that the fax would be used in a politically motivated case against him. That court rejected this argument.

So Zuma appealed to the constitutional court, arguing that the request to the Mauritians infringed his rights to human dignity and to a fair trial. The court rejected this.

The bottom line: the fax can be used as a lynchpin of the evidence against him.

Equality before the law

Reading out the high court’s unanimous decision last October that Zuma should be prosecuted, deputy judge president Aubrey Ledwaba stressed a powerful constitutional point: all citizens, even the First Citizen, must be treated as equal before the law.

Ledwaba said that by dropping the charges in 2009, then acting head of public prosecutions Mokotedi Mpshe “did not allow himself to consider the question whether the very decision he was about to take could be regarded by other people facing similar allegations throughout SA as a breach of equality before the law, or that it would be an abuse of process to discontinue charges against people of high profile”.

In other words, the court suspected it was Zuma’s status as the soon-to-be president of SA that played a part in Mpshe’s decision to drop the case.

The court, like the journalists all those years ago, didn’t understand why the timing around Zuma’s charging justified torpedoing a case that the National Prosecuting Authority had spent years building.

If the state does not prosecute Zuma now, and fails to provide compelling reasons why, it will in effect confirm that the powerful are immune from the consequences of their own alleged wrongdoing.

And if there’s one abiding lesson from the past nine years of Zuma’s rule, it’s that such a distortion of the constitution cannot stand.