Schabir Shaik, the man at the centre of much of the controversy surrounding the multi-billion rand arms deal, will have to answer questions about an alleged bid by Deputy President Jacob Zuma to secure bribes of R500 000 a year from French defence company Thales.

Durban High Court Judge Ron McLaren ruled on Friday that Shaik will have to honour a summons served on him by the Directorate of Public Prosecutions to answer questions about the alleged bribery attempt by Zuma. Shaik, a director of several companies that secured lucrative defence contracts, was a friend of - and financial adviser to - Zuma.

Shaik was contesting the validity of the summons to answer questions about meetings with Thales at which Zuma was allegedly present and to explain several letters.

The Nkobi Holdings director was allegedly present at a meeting on March 11, 2000 at which Zuma allegedly delivered a coded request for R500 000 per year for his protection during the arms deal investigations and for future support of Thales in South Africa. Senior Thales executive Alain Thetard was also allegedly present at the meeting in Durban.

Zuma has denied all the allegations against him, including that the meeting ever took place.

Shaik, who has been charged with theft of state documents found at his home during a raid by the Scorpions in October 2001, contended in court that the demand for him to answer the directorate's questions is invalid and unconstitutional. He argued the summons violates his constitutional right to a fair trial and the right of a person facing charges not to be forced to incriminate himself.

The state, represented by Advocate Marumo Moerane SC, argued that Shaik is the only available witness for their investigation. No decision has yet been taken on whether Shaik will be charged in the bribery matter, although he has been listed as a suspect.

Shaik challenged the constitutionality of Section 28(6) of the National Prosecuting Authority Act, which permits in-camera questioning even when the answers to the questions would incriminate the person being interviewed. The interviewee could also be asked to produce certain documents, books or objects at the questioning.

Shaik also contended that the summons is too vague as it asks him to produce any document in his possession or under his control that relates to the aspects being investigated.

McLaren ruled that the powers conferred by Section 28 of the act are central to the capacity of the investigating directorates to conduct investigations and fulfil the constitutional purpose of the act.

He said Section 35(1)(a) of the Constitution gives an arrested person the right to remain silent but Section 28(8)(a) of the National Prosecuting Authority Act infringes that right.

This would have compelled Shaik to answer questions on the alleged corruption of which he is suspected.

"In view of the insidious nature of corruption, it is understandable that extraordinary procedures and powers are necessary to eradicate it," he said, agreeing with Moerane that extending the right to silence to a person in Shaik's position would defeat the object of Section 28 and frustrate part of the Constitution.

"... The public clearly has a right to know whether the arms deal is, in any way, tainted with corruption - I think transparency demands that much," the judge said.

Acting for Shaik, advocate N. Singh SC argued that Section 28 does not provide adequate protection against the use of evidence derived from such an inquiry against the person questioned. McLaren said, however, that the trial court has the discretion whether to admit or exclude such evidence in order to ensure a fair trial for the accused.

"In my view, this is sufficient protection to ensure that derivative evidence is not unfairly used against [Shaik] in any criminal trial which he may face in respect of the subject matter of the inquiry," he said.

McLaren said he found it irrelevant that Shaik is a suspect in the theft case. He said the state made it clear they intend to question him about the suspected bribery and not the theft. "I am, therefore, not prepared to strike down Section 28(6) as being unconstitutional," he said.

The directorate stated in an annexure to the summons the inquiry relates to the investigation into the arms deal and Shaik's evidence is required in 12 aspects.

The first is an alleged meeting in November 1998 at which the sale of 10% of Thomson CSF's share in African Defence Systems to Nkobi was discussed and at which "Minister JZ" was allegedly present. Shaik will also be questioned on several other meetings including the March 11, 2000 discussion at which Zuma was also allegedly present.

The probe will include questions on a handwritten letter by Thetard in French that was typed and then faxed in encrypted form, and Shaik was asked to produce any documents he has or controls that relate to the 12 aspects.

On Shaik's contention that the summons is too vague, McLaren said the annexure has "a significant degree of particularity" and the subject matter of the inquiry is clearly articulated. "The description of the documents which [Shaik] is requested to produce at the inquiry is broad - and I have no doubt that it was intended to cast the net as wide as possible," he said, adding the state obviously does not know what documents Shaik has in his possession or they would have been specifically referred to in the annexure.

McLaren said the inquiry is, in his view, not of a judicial nature and does not constitute an administrative act. He denied Shaik's request for an independent arbiter to be present at the inquiry and ordered him to pay the costs of the application.

With acknowledgements to Zoubair Ayoob and The Natal Witness.