Jacob Zuma's Affidavit
In the matter between :
Jacob Gedleyihlekisa Zuma
National Director of Public Prosecutions
National Prosecuting Authority
Directorate of Special Operations
The purposes of this application are :
To obtain a judicial pronouncement that in refusing to give me immediate access to the handwritten version in the French language of the encrypted fax mentioned below, the respondents acted unlawfully and unconstitutionally;
To compel the respondents, through the court, to give me immediate access to the handwritten version;
To obtain a punitive costs order against the respondents for the manner in which the respondents dealt with my request for access to the handwritten version.
Background facts :
From relatively early on in the investigatory process, reports began to appear in the SA media suggesting that I was one of the persons so being investigated. However the respondents adopted the position that they were not prepared, for reasons of investigatory policy, to confirm or deny these reports. The Minister of Justice stated publicly that he did not know whether or not I was under investigation.
This position, which I respected at the time, placed me personally in a very difficult position. I felt that I could not exercise pressure to force the respondents into a public declaration for fear of prejudicing the investigation. I was therefore forced to largely remain silent.
My financial adviser, Schabir Shaik, was one of the persons under investigation by the respondents.
By notice of motion dated September 6 2002, Shaik instituted an application in the Durban and Coast Local Division of the High Court for certain relief arising from the investigatory methods employed by the respondents.
In his founding affidavit, Shaik made certain allegations to the effect that I might be one of the persons under investigation. The respondents in the answering affidavits did not dispute the suggestion.
I then instructed my former attorneys to write to the first respondent to obtain clarity in regard to my true position vis-à-vis the investigation. The first respondent responded . . . that it was not in the nature of the respondents' business to disclose prematurely the substance and subjects of an investigation.
The media speculation increased. It was impossible for me to defend myself. While the respondents did not hesitate to raid the premises of other persons for evidence and to summon persons to give information, no such investigatory tools were used directly against me. This, I have learnt, was on the grounds of "deference" due to my position as deputy president.
Such deference was clearly misplaced. The respondents are under a constitutional duty to act without fear, favour or prejudice.
In addition, the respondents unlawfully obtained access to my banking records (i.e. without any search warrant or other legal instrument) and instructed my bankers to keep secret from me the unlawful access to my personal information and records afforded to the investigating team.
The deference actually worsened my position: not only was there media speculation about my complicity in wrongdoing, but there was also speculation that I was misusing my position to inhibit the investigation against me.
In late April 2003 . . . my attorneys demanded that the first respondent now tell me "forthrightly and unequivocally and in writing, whether or not your office is conducting an investigation against [me ]".
The first respondent replied . . . that an investigation against me was being conducted.
I am forced to deal with the claim by the first respondent in his letter that he and the Minister of Justice personally informed me of the nature and purpose of the investigation. I was not told by either of them that an investigation was under way against me. Nothing was said to me for the record or to which I felt I was entitled to respond publicly.
Senior counsel, who had acted for me in certain unrelated matters, interviewed the first respondent on behalf of other clients in the first part of 2003.
Senior counsel reported to me that the first respondent had asked him to convey to me that the investigations being conducted could be made to go away against all concerned, subject to the following:
I should answer a set of innocuous questions compiled by the first respondent;
My answer to the first respondent's questions would remain confidential to the first respondent and not be disclosed to the other members of the respondents.
I rejected out of hand the offer so conveyed to me by senior counsel.
Under cover of a letter dated July 9 2003, the head of the third respondent furnished me with the list of 35 questions. Many of the questions did not appear to be relevant. In my response, I answered the questions I believed to be relevant and invited the respondents to explain why the other questions were relevant.
No explanation of relevance was forthcoming. Instead I learnt through the media that:
An attempt had been made by the first respondent, behind my back, to solicit the intervention of a person to mediate between the respondents and me, amongst others; and
A meeting had actually been held for this purpose between the first respondent and Mr Cyril Ramaphosa on Sunday August 17 2003.
I decided to take the matter further. My attorneys addressed letters dated August 21 2003 to the Minister of Justice and the first respondent. The Minister of Justice neither acknowledged receipt nor replied.
Instead the first respondent convened a press conference for August 23 2003.
In paragraph 32 of his written statement, the first respondent said as follows: ". . . Whilst there is a prima facie case of corruption against the deputy president, our prospects of success are not strong enough. That means we are not sure if we have a winnable case."
I am advised that the first respondent's decision is one of nolle prosequi [intention not to pursue the case]. However, it was made clear at the press conference that if further evidence against me should emerge, the first respondent intends to reconsider his nolle prosequi.
On Monday August 25 2003, Shaik was brought before the magistrate's court in Durban and a draft charge sheet was served.
I am advised that the draft charge sheet is unusually replete with allegations which it is said will be established at the trial. A considerable number of such allegations reflect badly on me.
Consequences to me of the above :
The result of the sequence of events to me personally is that I have been denied the opportunity of defending myself in court in answer to the charges . I have been subject of a judgment delivered by the first respondent. The result of making public the draft charge sheet has been an unrelenting sequence of allegations against me, reported prominently in the media. Not a day goes past without media coverage adverse to me and insinuating that I am guilty of corrupt behaviour.
I have always maintained that I am innocent of the charges in the draft charge sheet. I have never solicited or accepted a bribe or acted corruptly. I never will.
However, my assertions that I am innocent are not "news". While the media have fairly reported many of my statements, I have been unable to meet the case that I believe is being conducted against me through (not by) the media.
Facts directly relevant to present application :
The encrypted fax was at the heart of the investigation against me . . . [and] is confirmation of the evidence available to the respondents that:
At a meeting attended by Schabir Shaik, Alain Thétard, an official of Thomson/Thales and me in Durban, After the correct cryptic code previously established by Thétard had been given by me, I requested R500 000 per annum for:
a) continued protection against the pending investigation in respect of the arms deal;
b) continued support and lobbying which could benefit Thomson.
I have repeatedly stated that I did not attend any such meeting.
I believe that if I can demonstrate the fallacy of the respondents' contentions regarding the encrypted fax, I will go a long way towards demonstrating my innocence. *
Unusually, I am advised, the respondents did not put up when they applied for the search warrant against Shaik either the handwritten or typed versions in the French language of the encrypted fax. Instead they put up and relied upon a translation into the English language of the encrypted fax by a Dr O Fléchais, a sworn translator with the High Court of the Cape of Good Hope.
During the process of responding to the list of questions, the centrality of the encrypted fax and the possibility that the interpretation put on it by the respondents was wrong became apparent.
Accordingly, copies of the French versions of the encrypted fax, both handwritten and typed, were requested from the first respondents. No response was received.
My formal request for access to the French versions of the encrypted fax, both handwritten and typed, [was] made under the Promotion of Access to Information Act.
Only one typed version of the encrypted fax in the French language was provided to my attorneys by the respondents. I regrettably do not speak, read or write the French language but anyone can see the Scorpions' translation omits the letters "CSF" from the word "Thomson" in the sixth-last line of the Scorpions' translation.
The Scorpions' French transcript has been analysed and translated by Mrs C du Toit, a person proficient in the French and English languages, amongst others.
I believe that it is vital to my interests that I cause the handwritten version of the encrypted fax to be thoroughly investigated. Its handwritten form, the genesis of the encrypted fax, is manifestly of great significance. It may, for example, transpire that contrary to what has been alleged under oath on behalf of the respondents, the handwriting is not that of the said Alain Thétard.
I submit that the conduct of the respondents justifies a punitive costs order. Without any attempt to justify their actions as required by law, they have denied me access to a crucial document which might well contribute to my being able to demonstrate my innocence.
Through the actions of the first respondent, I have been stripped of the remedy available to any person confronted with such allegations: a trial in the normal course. I cannot think of any reason consistent with good faith why it was necessary for the first respondent after having come to the conclusion that he could not win a court case against me, in effect to tell the nation that I am nevertheless guilty.
I intend to invoke the protection of the Public Protector against what I view as a gross abuse of public power. An investigation by the Public Protector will, properly so, take some time. In the short term, my only remedy in this regard is the protection of the courts.
* Is a long way far enough? What about the R500 000 per year "Service Provider" agreement between Thomson International of Mauritius and Nkobi Holdings of Durban?
But, in any case, the Applicant has not been charged. Maybe the Applicant doth protest too much.
With acknowledgement to the Sunday Times.