Publication: Mail and Guardian
Reporter: Sam Sole
Mail and Guardian
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
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
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
The companies are alleged to have been party to a corrupt
relationship with Zuma, secured with undue payments and promises made via
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
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
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
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
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.
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
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
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.
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
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
Central to such an application will be claims that Zuma’s rights
have been irretrievably prejudiced by the conduct of the
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
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.