The political ramifications of former deputy president Jacob Zuma’s trial have obscured a touchy legal issue: should French group Thales go on trial with him?

Newspapers have speculated that the Scorpions might be tempted to charge the group’s local subsidiary, based on the reasoning that not only the bribed party but the briber, too, should face charges.

All too often government employees in third-world countries face the music alone, while the slick suits from the first world slip away to glistening offices in the globe’s capitals and shrug off the accusations with a disdainful sneer, as if to say: “What do you expect from these people?”

Senior Scorpions members would dearly love to charge the local Thales unit, Thint, with Zuma for precisely this reason. Thint manager Pierre Moynot was included in the Scorpions’ search and seizures in August, fuelling speculation that Thint might be in hot water.

But apart from the potential diplomatic *3 fallout, there is a legal, and perhaps a practical, snag: the Scorpions agreed in writing not to charge Thales in exchange for information from the company.

The French government helped the Scorpions by allowing them to search Thales’ office in Paris, and Moynot appeared as a witness *1 in the Schabir Shaik trial. As a result the attitude of French authorities cannot be said to have been unremittingly hostile to the investigation.

The diplomatic fallout could be severe. Unnamed spokesmen have been quoted in the press as having indicated that France would take a dim view *4 of Thint being added to the charge sheet.

The Scorpions, however, have outstanding quarrels to settle, and might find ways to circumvent the legal undertakings. The question is whether a court will endorse these techniques.

The Scorpions’ task in charging Shaik and Zuma was complicated by the fact that, in effect, political realities required a two-stage process: a dry run against Shaik, and only if this was successful would the more politically contentious charges be brought against Zuma.

But in order to get past the first stage, the Scorpions were forced into some compromises. The most obvious of these was to try to ensure the legal admissibility and veracity of an encrypted fax crucial to the Shaik conviction.

The Scorpions struck a deal with former Thint head Alain Thetard. The terms are not exactly clear, but they amount to an undertaking that if he confirmed the contents of the fax, the company would not be charged in the Shaik case.

Thetard acknowledged that he had written a fax to his head office with the initials “S Shaik” and “JZ” requesting R500000 a year to protect the company during arms-deal investigations.

But then things went awry. Just before the Shaik trial was due to start last year, Thales brought an action in the Pietermaritzburg High Court, seeking to enforce the terms of the deal.

Attached to this application was a statement by Thetard, in which he claimed that although he had written the fax, it was just idle doodlings. He threw it in the rubbish bin, from where the Scorpions presumably retrieved it, he said.

The question is whether the statement effectively constitutes a repudiation *5 of the agreement Thetard had with the Scorpions, on the basis of which he was granted immunity. Even if it is not, the Scorpions have three other options.

First, they could argue that the immunity covered the Shaik trial only and not all subsequent legal action. Second, the Scorpions could argue that the immunity was based on Thetard providing a full statement to the Scorpions. But it transpired at the Shaik trial that his statements were wildly contradictory and unsatisfactory, negating the immunity.

And, if all this proves insufficient, the Scorpions could argue that the immunity was granted to Thint Holdings.

But there are two Thales subsidiaries in SA. The other is Thint (Pty), in which Shaik’s company Nkobi has a stake. This company may be the more appropriate target since it includes the Shaik link.

The company is facing a crisis at home as well *6. A story was published recently by the French daily Le Monde in which the former head of Thales’ engineering and consulting unit, Michel Josserand, said Thales had a secret internal system to pay commissions that totalled 2% of the company’s annual sales.

Last year Thales posted sales of €10,5bn. If Josserand is correct, the company paid bribes of almost R1bn *2.

Thales has filed a complaint against Le Monde and Josserand for defamation. French authorities have confirmed that they are investigating Josserand’s claims.

With acknowledgements to Tim Cohen and the Business Day