Thorny Posers in Wake of Shaik Outcome
Judgment in the Schabir Shaik trial has answered the big question about the guilt of the accused, but it has also launched a small army of subsidiary questions, particularly around the future of the Nkobi group and where else the spotlight might now fall.
By all accounts, the future of Shaik’s Nkobi group might well be threatened from the multiple blows it has received, starting with the fines of about R4,4m imposed yesterday.
If that is not enough, potentially more onerous threats are the asset-forfeiture provisions of the Prevention of Organised Crime Act, which are the subject of a separate hearing next month, as well as civil proceedings.
By agreement last week, R30m of the assets of the Nkobi group have been frozen pending the hearing, including the group's shareholding in Thint (originally called Thomson-CSF), which are valued by Nkobi at R22m. In addition, a small amount of R250 000 in terms of Shaik’s bogus service-provider agreement *1 will be the subject of this hearing.
It is likely that this hearing will be heavily litigated, with Shaik’s group probably relying on a section of Judge Hilary Squires’s judgment in which he concluded that Deputy President Jacob Zuma’s intervention to help Shaik get these shares was in his capacity as African National Congress deputy leader and not in his then-official capacity as KwaZulu-Natal MEC.
However, head of Asset Forfeiture Unit in the National Prosecuting Authority Willie Hofmeyr said the unit’s argument would be that the shares came to Shaik as proceeds of an “unlawful activity”.
This concept of “unlawful activity” has a wider definition than formal, criminal liability.
Also assisting the state is the fact that it is a civil application, and proof is required on the less onerous basis of a balance of probabilities rather than beyond reasonable doubt.
But even if the Nkobi group clears this hurdle the finding in the court case powerfully assists the R149m civil claim of Richard Young’s C²I², which is currently wending its way through the legal preliminaries.
There is also an outside possibility that the arms-deal contracts themselves could be at risk as a result of the contract.
These contracts all included standard anticorruption clauses, which suggests they might be vulnerable to being unwound or damages being sought, notwithstanding the fact that much of the work has already been done and the corvettes have already been delivered.
However, one legal expert said this was a “practical and legal long shot”, partly because the anticorruption clauses were designed to be invoked by the buyer.
Still, the case does signal bad news for Thales, and particularly for its one-time local representative, Alain Thétard.
Squires castigated Thétard in his judgment, and went so far as to suggest he should have been charged. At one point he used the words “if Thétard had been one of the accused, which he would have been had he not left the country and refused to return”.
Later, he acknowledged the defence’s proposition that Thétard was a “demonstrably untruthful and dishonest person” *2.
With acknowledgements to Tim Cohen and Business Day.
*1 Specifically arranged on an a priori basis by Thomson-CSF specifically to circumvent the OECD Anti-Corruption Regulations.
*2 The poor man was only a stooge *3 of his employers, Thomson-CSF International, Thomson-CSF Holdings (Southern Africa) (Pty) Ltd, Thomson-CSF (Pty) Ltd and African Defence Systems (Pty) Ltd.
*3 Alain Thetard was merely the stooge or flunkey *4 of Jean-Paul Perrier, Chairman and Chief Executive of Thomson-CSF International and Vice-Chairman and Executive Director of Thomson-CSF.
*4 "A person of slavish or unquestioning obedience"