Curtain-Raiser for Zuma Trial
Karima Brown, Vukani Mde
On the eve of this weekend’s critical African National Congress (ANC) national executive meeting, the state and Jacob Zuma’s defence team squared off on Friday in the Durban High Court, in what can be seen as a curtain-raiser to the politician’s long-awaited corruption trial, which gets under way in July.
In separate affidavits filed with the court, the state confirmed that it was still investigating charges of fraud and tax evasion to add to Zuma’s indictment, while the ANC deputy president upped the political ante in a submission demanding a speedy trial.
Zuma alleges that further delays are calculated to hurt his chances of becoming the ANC’s next president. His argument confirms he intends making the alleged political conspiracy against him a linchpin of his defence in the upcoming trial.
“It would certainly be extremely detrimental to his prospects of occupying a leadership role in the ANC should the corruption proceedings not be finalised by (December 2007)," says Zuma’s attorney Michael Hulley in his affidavit.
The ruling party will hold its next national conference in December next year, where Zuma could possibly square off against President Thabo Mbeki for the ANC’s top job.
Hulley’s affidavit was lodged in support of an application by French arms company Thint, a co-accused in Zuma’s corruption trial, for the state to finalise its indictments in order for the trial to go ahead.
But in its answering affidavit the state hints at further delays to the case. The state argues delays will be necessary because of a widened probe against Zuma, Schabir Shaik’s appeals against his corruption conviction, and an application by the state to receive legal assistance from the authorities in Mauritius. The affidavit, sworn to by lead Scorpions investigator Johan Du Plooy, confirms for the first time that Zuma may yet face charges of fraud and tax evasion in addition to the two counts of corruption put to him in the state’s provisional indictment.
“On 8 August 2005, the investigation was extended to include the suspected commission or attempted commission of the following offences: One, fraud pertaining to declarations made by Jacob Gedleyihlekisa Zuma to the following persons or entities; the Registrar of Parliamentary Members’ interests, the Secretary for the Cabinet of the Government of SA, the South African Revenue Services and/or persons or entities associated with the above- mentioned persons or entities, in respect of benefits received from Schabir Shaik and/or companies associated with Schabir Shaik.
Two, contraventions of the Income Tax Act, No 58 of 1962, in respect of the declarations referred to above, by Jacob Zuma.
The widening of the Scorpions probe came just days before the unit’s dawn raids on residences and offices belonging to Zuma, his lawyers, Thint, and various businesspeople linked to the ANC deputy president, on August 18.
The raids yielded a mountain of new information for investigators, reported to run to 93000 pages of documentation.
Du Plooy’s affidavit says auditing company KPMG, contracted by the state “to provide as complete an analysis as possible of the financial positions to date of Shaik and the Nkobi companies, and Zuma”, cannot continue with its audit because of a raft of legal challenges brought by Zuma and his co-accused.
“I am advised by KPMG that its preliminary perusal of the evidential material seized during (last year’s raids) has revealed that a significant proportion of such documentation would be directly relevant to its investigation.
They advise, however, that they are not in a position to draft the forensic accounting report until such time as they have certainty as to the evidential material upon which they can base their opinions.
Therefore, this can clearly not be done until the various applications (by the accused) have been finalised,” says Du Plooy.
Zuma, Thint, Hulley, Zuma lawyer Juleika Mohamed, alleged Zuma funders Jurgen Kogl, Nora Fakude-Nkuna and Vivien Reddy have all challenged the validity of warrants obtained by the Scorpions to search their premises.
Mohamed already won round one of her legal battle with the state, when the Johannesburg High Court ordered the Scorpions to return items seized from her offices. The National Prosecuting Authority is appealing the order.
In addition, both Zuma and Thint are understood to be toying with a possible constitutional court challenge to their prosecution, which would argue it was not possible to conduct a fair trial.
This is because the political atmosphere has already been poisoned against Zuma in particular. An example of this was former national prosecutions head Bulelani Ngcuka “holding a secret meeting with some editors to set up an arrangement to try (Zuma) through the media in respect of the corruption trial,” Hulley contends.
However, in its affidavit the state argues that all these challenges and counter-challenges make it impossible for the trial to commence on July 31, the date set down in an agreement between the prosecution, Zuma’s lawyers and the Durban High Court.
But the delays seem to play into Zuma’s hands as he appears determined to link his prosecution for corruption to internal wrangling in the ANC over the succession. In his submission Hulley strongly suggests that either the state is deliberately dragging the case in order to hurt Zuma politically, or is unwittingly playing into the hands of his political foes.
The state should be ready to try Zuma following a marathon investigation that has already resulted in Shaik’s conviction and Zuma’s sacking from cabinet last year.
“A five-year-plus investigation plus a dummy run, an alleged mirror charge of Shaik, his former financial adviser, plus a year between charges and trial, constitute sufficient opportunity.
“Conduct designed to frustrate the completion of the trial with due expedition should not be tolerated,” Hulley argues. He says all delays are politically harmful to Zuma and an “advantage” to his ANC opponents.
In line with the political conspiracy theory held by Zuma’s supporters, Hulley’s affidavit explicitly links the impending corruption trial with Zuma’s rape trial, to make the point that both are widely seen as part of an onslaught against his political ambitions.
“In a recent trial wherein Zuma stood accused of rape, the complainant stated that she was well aware that the allegations she had made would become part of the political conspiracy against Zuma.
Zuma himself testified that his opponents are conspiring to preclude him from playing a meaningful role in ANC structures and the national government," says Hulley.
Zuma’s political fortunes turned around dramatically this week when he was acquitted of rape in the Johannesburg High Court. This led to renewed calls from supporters, particularly the ANC Youth League, for Zuma to take over as ANC president. But his path to the top job will have to clear yet another hurdle this weekend when the party’s top brass meet to consider the political implications of his acquittal and his stated desire to resume full party duties.
The legal cat-and-mouse game between the state, Zuma and Thint will result in some of SA’s sharpest legal minds squaring off in Durban and Bloemfontein. It is understood that Billy Downer and Anton Steynberg, who successfully prosecuted Shaik, will lead the prosecution of Zuma and Thint. The French company will be represented by Hefer Commission evidence leader Kessie Naidu SC.
Meanwhile, the Weekender has learnt that Zuma will be represented by Jeremy Gauntlett SC, famous for overturning the rape conviction of cricketer Makhaya Ntini on appeal. Gauntlett will also argue Shaik’s case in the Supreme Court of Appeal.
With acknowledgement to Karima Brown, Vukani Mde and Business Day.