Thales SA says there is no evidence to charge it for scheme to bribe Jacob Zuma
The Pietermaritzburg high court must rule on whether Thales SA is an “unfortunate unfair casualty” of the more than decade-long process to prosecute Jacob Zuma, or if there is enough evidence to charge the French arms company for allegedly participating in a scheme to bribe the former president in return for his influence and protection.
Judge Mahendra Chetty, judge Anton Van Zyl and Alsa Bezuidenhout on Monday reserved judgment in the review application of racketeering charges against Thales SA.
Thales wants the court to set aside the decision to charge it for racketeering because the National Director of Public Prosecutions (NDPP) lacks the evidence to charge it.
While Thales attempted to distance itself from the 783 corrupt payments made to Zuma from convicted Durban businessman Schabir Shaik, the National Prosecuting Authority (NPA) told the court that Thales was not only aware that Shaik was financing the former president via a “retainer”, but worked with Shaik to bribe him to protect the arms manufacturer from an investigation into the multimillion-rand arms deal.
In its heads of arguments, the state provided a lengthy history of the case against Thales and Zuma.
“A company in the Thales (Thomson-CSF) group was part of the consortium (the German Frigate Consortium) that was awarded the contract for the supply of corvettes to the SA Navy, and ADS was the subcontractor for the German Frigate Consortium for the supply of the corvette combat suite,” it argues.
“On September 15 1999 a company controlled by Schabir Shaik, namely Nkobi Investments (Pty) Ltd (at all material times Schabir Shaik held an effective shareholding of 75% in this company), had acquired an effective shareholding of 20% in ADS through a 25% shareholding in Thint (Pty) Ltd (named Thomson-CSF (Pty) Ltd up to August 19 2003) which on that date acquired 80% of the shares in ADS from Thomson-CSF (International), a wholly-owned subsidiary of Thomson-CSF (France).
“During 2001, the NPA investigators who were members of the then newly established DSO [Directorate of Special Operations, or Scorpions] discovered an encrypted fax sent by Mr Alain Thétard (executive chairman and CEO of Thales SA and a director of Thint (Pty) Ltd) to his superiors, Mr Jean-Paul Perrier of Thomson-CSF (International) in Paris and Mr Yann de Jomaron of Thales International Africa Ltd in Mauritius.
“It recorded the acceptance by Mr Zuma of a proposal that in return for an annual payment of R500,000 he would protect the Thales group against the investigation into the arms deal and support it in future projects.”
State advocate Wim Trengove on Monday told the court the encrypted fax was part of the evidence against Thales.
In the state's heads of arguments, it provided the evidence that was put before the NDPP to come to the decision to charge Thales with racketeering.
This included “a wealth of documentation” obtained during the investigation, including business records and correspondence in respect of entities within the Thales group obtained by way of searches and seizures in SA, Mauritius and France, both before and after the Shaik trial, evidence from state witnesses and a forensic report.
Thales' advocate Barry Roux argued there was no evidence that Thales was aware of the alleged bribes to Zuma.
He argued that most of the evidence used to obtain authorisation to charge Thales for racketeering related to Shaik's trial, and that Thales was being held responsible for payments of which it was not a part.
“The authorisations fail the test of legality. They fail on the most basic premise, as the authorisations were granted without determining there was available identified evidence to show that there was reasonable and probable cause to believe Thales SA had committed the racketeering acts,” said Roux.
“The strategic benefits to the prosecution probably resulted in the failure to act fairly, rationally and objectively and led to an arbitrary decision to authorise the prosecution of Thales SA on racketeering without any evidence to show Thales SA had committed the racketeering acts.”
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