Publication: Mail and Guardian Issued: Date: 2006-05-12 Reporter: Sam Sole

Zuma's Secret Diary



Mail and Guardian




Sam Sole

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Jacob Zuma’s official diary for the year 2000, when he is alleged to have met Schabir Shaik and French arms dealer Alain Thetard to request a bribe, was discovered during the Scorpions raid on Zuma’s office at the Union Buildings in August last year.

But prosecutors preparing for the former deputy president’s forthcoming corruption trial have not had insight into the entries for March 10 and 11, the dates on which it is alleged that Zuma might have met Shaik and Thetard. This is because the Presidency says the diary is secret and won’t release it.

The diary has been sealed and kept in the possession of the Presidency pending the determination of the prosecution’s right to access this material.

The spokesperson for the Presidency, Mukoni Ratshitanga, said the matter was being dealt with in terms of state policy which provided that the diary was a classified document.

The existence of Zuma’s diary and its uncertain legal status is revealed in new legal papers filed at the Durban High Court.

Thetard’s erstwhile employer, Thint, has launched an application to force the state to disclose particulars of its case against Thint and its representative, Pierre Moynot, who succeeded Thetard as chief executive.

In his affidavit opposing the application, Scorpions investigator Johan du Plooy cites the diary as one example of evidence that is still needed before the state can finalise its case.

Thint is the South African arm of French defence conglomerate, Thales.

Thint and Thint Holdings are co-accused with Zuma in the corruption trial set down to begin on July 31 this year.

The companies are alleged to have been party to a corrupt relationship with Zuma, secured with undue payments and promises made via Shaik.

The meeting of March 10 or 11 gave rise to the infamous “encrypted fax” sent by Thetard to his superiors in which he appeared to report that Zuma had confirmed, via a coded phrase, a request for a payment of R500 000 a year in return for his “protection” and “support”.

Shaik claimed at his trial that the meeting concerned not a bribe but a request for a donation to the Jacob Zuma Education Trust, a version flatly rejected by Judge Hillary Squires in convicting Shaik.

Following Zuma’s sacking as deputy president in the wake of Judge Squires’s judgement, the National Prosecuting Authority (NPA) came under immense pressure to bring Zuma to court.

Prosecutors produced a “draft indictment” against him and Thint, but warned that it might be amended and other charges might be added relating to Zuma’s alleged failure to declare the benefits he received.

The August 18 raids carried out on various premises occupied by Zuma were supposed to garner further evidence needed to finalise the indictment, but appear to have backfired on the NPA because of the unacceptable broadness of the search warrants and a failure to take steps to prevent a breach of attorney-client privilege.

Although some 93 000 pages of new documentation were seized, Zuma and his former legal adviser, Julie Mohamed, have successfully challenged the legality of the searches. The state is appealing against these rulings and claims that until the legal status of the seized documents is decided, it cannot be expected to finalise its case.

Moynot, on behalf of Thint, counters that the legal battle over the raids may end up in the Constitutional Court and his company cannot be expected to sit with the charges hanging over its head while that process runs its course. If the state is not ready to proceed, it must withdraw the charges, he argues.

Part of the defence strategy has been to stampede the prosecution into making technical mistakes. The Shaik trial was run largely on the basis of not challenging the evidence put up by the state, but offering an innocent interpretation. That approach failed, leaving Zuma with a serious risk of conviction on the same set of facts.

Hence, the defence is attempting to exclude as much evidence as it can and, if possible, to prevent the trial from going ahead at all.

In this vein, Thint has applied to court to force the state to supply further particulars ­ in essence, the detailed legal nitty-gritty that the prosecution commits itself to having to prove to make its case.

The prosecution has replied that crucial evidence remains in limbo, pending the outcome of challenges to the raids. In particular, Du Plooy cites evidence given by Shaik in his trial that payments to Zuma continued up to 2005.

Records obtained by the Scorpions for the Shaik case only recorded payments up to 2002, and the raids were intended to fill this gap.

In particular, documents seized from Zuma’s attorney, Michael Hulley, related to Shaik’s conduct of Zuma’s financial affairs.

Zuma’s financial records were transferred to Hulley when Shaik resigned as Zuma’s financial adviser after his conviction.

The diary may be equally crucial. As Du Plooy points out in his affidavit, Zuma is on record as stating that he did not meet Thetard and Shaik on March 11 2000 ­ the date mentioned in the encrypted fax ­ and has denied that a bribe was ever discussed.

However, he never disclosed a meeting the previous day and never made reference to Shaik’s explanation that it related to a request for a donation to the Jacob Zuma Education Trust.

Zuma’s official diary, Du Plooy notes, “may shed considerable light on the date of the meeting, the subject of the meeting and Zuma’s professed lack of recollection thereof”.

Another equally crucial diary currently lies beyond the Scorpions’ legal grasp.
Thetard’s diary for the same period, which noted his meeting in Durban, formed a vital part of the evidence against Shaik, together with other documents seized during raids in Mauritius in 2001.

But now those documents have to be admitted in the new case, involving a request to the Mauritian authorities, who hold the originals.

In 2003, Thint reached an agreement with the Mauritian anti-corruption­ agency that the documents would not be released, except in response to a new court order, so the Scorpions will have to lodge a new application in the Mauritius High Court.

Earlier this year Thint mounted a successful challenge to an attempt by prosecutors to secure a court order mandating a request to the Mauritians for the necessary legal assistance.

The ruling held that only the trial judge, who has not yet been officially appointed, could make such an order, meaning that access to the Mauritian documents is also in question.

But even before the trial gets under way, the prosecution may face a bid to have the charges set aside.

Hulley told the Mail & Guardian this week that an application to set aside the charges would go ahead ­ it was merely a matter of deciding whether to launch a separate action ahead of the trial, or make the application in front of the trial judge.

Central to such an application will be claims that Zuma’s rights have been irretrievably prejudiced by the conduct of the investigation.

Hulley would not be drawn on the details, but the claims are likely to be comprehensive, ranging from former national director of public prosecutions Bulelani Ngcuka’s alleged comments in his controversial off-record briefing to editors, to prejudice suffered because of the Scorpions’ illegal raids, to complaints about the separation of the Shaik and Zuma matters.

The Shaik case was fought on gentlemen’s terms. For Zuma, expect as close to a street brawl as the law will allow.

With acknowledgement to Sam Sole and Mail and Guardian.