Publication: Nicholson J Issued: Date: 2008-09-12 Reporter:

Judgment Extracts



Case No : 8652\08

In the matter between:


12 September 2008
"I would say that in South Africa it goes far beyond being a 'grave violation of their professional and legal duty [for prosecutors] to allow their judgment to be swayed by extraneous considerations such as political pressure' as it is a very serious criminal offence for which the legislature has put a maximum sentence of 10 years imprisonment for any breach."

It is clear from Nicholson J's judgment that Bulelani Ngcuka allowed his judgement to be swayed by Penuell Maduna on behalf of Thabo Mbeki in not charging Jacob Zuma at the same time as Schabir Shaik.

It is as clear that Bulelani Ngcuka's and Penuell Maduna's interference in the matter caused them to abandon charges against Thint.

This is criminal conduct and they should be charged for it.

Nicholson J said it yesterday - I've been saying it as clearly for 5 years.

If it were not for the conduct of these criminals we would have other criminals in prison now and the entire country would not be in the mess its in.

Another collaborator in this farce was Leonard McCarthy.

Maduna, Ngcuka and McCarthy were all in France on multiple occasions going above the heads of principle investigators Deputy Director Gerda Ferreira and Investigating Magistrate Edith Boisette. This caused such pressure on the latter that the French abandoned the investigation into Thomson-CSF. In the meantime the DSO issued a Mutual Legal Assistance letter to the French. They have never even had the courtesy to acknowledge its receipt let alone reply let alone co-operate. This is in the 2001 to 2003 era. All this was to protect Thabo Mbeki and his benefactor Thomson-CSF.

The documentary evidence clearly shows that Thomson-CSF was awarded a contract for the corvette combat suite which was R250 to R300 million [1999 Rands] higher than it should have been.

Charge them all for obstructing the course of justice and for corruption.

"At first blush a decision not to prosecute the Deputy President of the country appears to be as a favour to the second to highest ranking politician in the country. The applicant denies this and puts quite a different slant on the objective. He says it was all part of a political agenda that had as its objective the favouring of  President Mbeki in his quest for a further term of office as ANC President. "

What absolute twaddle.

If it was all part of a political agenda that had as its objective the favouring of  President Mbeki in his quest for a further term of office as ANC President, what better situation than for one's opponent to be in jail after having been convicted of the serious crimes of bribery and corruption.

By the simplest dints of logic it could not have been the reason why President Mbeki did not want Deputy President Zuma not to be charged.

So there have to be other reasons.

The reason was that Mbeki did not want to tarnish the ANC, his government and his choice as Deputy President with the latter standing trial and worse, being convicted regarding the Arms Deal over which Mbeki presided as well as opening up allegations and charges against himself in this regard.

Here the judgment of Nicholson J is weak.

But is it only his fault that he makes this incredible finding?

I think the problem is that the NPA did not properly counter the implausible argument of the Applicant in its replying affidavit and argument. It seems simply to have applied to have the argument of the Applicant struck out, which failed, leaving the judge to accept the position of the Applicant. Not only did the Respondent fail to have the Applicant submissions in this regard, it failed with it having to pay the costs of three counsel, while the Applicant was successful in its similar applications and granted costs of three counsel.

The NPA was too coy to advance a properly formulated counter-argument as to why it is patent nonsense that it was all part of a political agenda that had as its objective the favouring of President Mbeki in his quest for a further term of office as ANC President.

The problem is that the NPA has demonstrated time and again that it is not prepared to go after Mbeki regarding matters such as the Arms Deal and Selebi.

It had its chances and instead of being the biter it got bitten, possibly even fatally.

The NPA failed in its constitutional duty to act without fear, favour and prejudice.

The NPA should blush at wasting the taxpayers' money so negligently.

It's been a very sad five years for the NPA and the DSO and the South African Public.


"I must repeat that this application has nothing to do with the guilt or otherwise of the applicant. It deals only with a procedural point relating to his right to make representations before the respondent makes a decision on whether to charge him again. Once these matters are cured the State is at liberty to proceed again against the applicant, subject to any further proceedings he may bring."

Once its shortcomings are cured the State is at liberty to proceed again against the Applicant, subject to any further proceedings he may bring.

The white judge he said so.

To make partial amends the State needs to rapidly cure such shortcomings and to proceed as rapidly as possible, but also as carefully as possible against the Applicant.

This is not a liberty, but an imperative.

I say so.

At the same time it should be giving every consideration about its case against The Two Thints to prevent a similar fiasco.

As soon as its wounds are licked and healing, the NPA can make further amends by charging Mbeki, Maduna, Ngcuka and McCarthy for unlawfully interfering with its work.

Then the NPA can make further amends by charging Mbeki for unlawfully interfering with the corvette combat suite acquisition process.

Then the NPA can make further amends by charging Joe Modise's estate and collaborators for unlawfully favoring British Aerospace with the Hawk and Gripen acquisition processes.

Then the NPA can make further amends by more rigorously defending the continued existence of the DSO.

Then the NPA can make further amends by reopening the Arms Deal investigation, specifically with regard to :
Until these matters are properly cleared up, the country is going to labour under the Arms Deal cloud for at least another decade.

A good start for the NPA would be to allocate a least half a dozen qualified Special Investigators and Senior Special Investigators to its current Arms Deal investigations and a dozen more to its new investigations, with the requisite budgets.