In the High Court of South Africa
CASE NO: CC27/04
In the matter between :
1. SCHABIR SHAIK
Judgment on Admissibility : 2005-02-17
In the presentation of its case in these proceedings, the State has tendered as evidence, a considerable number of documents. As he saw a need to do so during the course of the evidential narrative, Mr van Zyl, on behalf of the accuseds, objected to the admission of a number of these on the grounds that they were hearsay or irrelevant, or both. And not only to documents, but also on some occasions to the oral evidence of a witness of a statement made by someone else. But he and the prosecutor reached the sensible agreement that in the interests of expedition, the protested items of evidence should be provisionally admitted as part of the evidence, subject to the proper admissibility of such hearsay statements being decided and accepted as part of the State's case, before the accuseds were required to present their defence.
Matters have at length reached the stage where, with one exception, the State has no further witnesses to call. Most of what remained up to the present, whether in dispute or not, has been disposed of in a list of admissions made by the accuseds in terms of section 220 of the Criminal Procedure Act, including the acceptance of some of the documentary exhibits to which objection was initially taken. What is left of the documentary evidence still protested will be set out directly. But in addition to this residue, there is the question of the evidence of the one further witness the State would like to add to its case.
That is the evidence of a Mr David Wilson, who was the managing director of a Malaysian company which was the overseas operations branch of a parent company called Renong Berhad, which, in the middle 1990s, was exploring the possibility of obtaining government or quasi-government contracts in the re-development of the Point area of Durban. This was exactly the sort of enterprise and opportunity that was sought by Acc No 1 to join as the black economic empowerment partner in a joint venture. Documents were found in the custody of the Nkobi Group that revealed contact between Renong Berhad and Jacob Zuma, the then Minister of Economic Affairs in the provincial government of KwaZulu-Natal, and further investigations by officers of the Directorate of Special Operations, brought them into contact with Wilson. In the course of these contacts, Wilson made two affidavits, the main thrust of which deals with the meetings he had with both Acc No 1 and Zuma over his company's desired contracts, and his assessment of the relationship between the two.
It now appears from letters sent by Wilson to the investigating officer in response to requests for him to attend Court to give such evidence as he can, that despite an initial willingness to do so, and despite the fact that he is no longer employed by Renong Berhad, but at the behest of the directorate of that company - in which the government of Malaysia now has the controlling interest - he has declined to appear and give evidence in person. He gives as the reason for this decision that by doing so he may cause difficulties for the Malaysian government if it is seen to be assisting a prosecution of the present kind. In those circumstances, the State is making application in addition to the admission of the disputed hearsay documents, for the two affidavits made by Wilson previously to be also admitted in evidence.
Of the documentary evidence to which Mr van Zyl objected, what is left in dispute are first, the handwritten draft fax that is Exh E 25 and 26, the encrypted fax itself that is E 29, and the attendant typed version and translations, which of course, stand or fall with die essential exhibits.
Secondly, the admissibility of the six documents seized from the offices of Thomson CSF International (Africa) Limited (Mauritius) in Port Louis, and two from the offices of that company's off-shore management company, an entity called Mutual Trust Limited. These are :
(i) Exh M 6 - 040400 A - B
(ii) Exh M 6 - 040390
(iii) Exh M 6 - 040414
(iv) Pages 116 - 122 of Exh O
(v) Page 37 of Exh O
(vi)Pages 38 - 43 of Exh O
(vii)Pages 1 and 2 of Exh TT - Thetard's diary of 10 and 11 March 2000
(viii) Exh M 20 - 110061 - 64.
The basis of the opposition to the admission of these six documents has been amplified to include one of law namely, that they are not lawfully in the possession of the prosecution and should not be accepted as evidence in support of its case.
Thirdly of the documents originally tendered by the State that were the result of the search and seizure exercise conducted at the Paris office of Thomson CSF, not many now remain in dispute. The bulk of what remain in issue consists of the reports by the several police officers who carried out the search warrants. The only other item still in contention is a report by a Mr Chabas to a colleague or superior that is Exh M 7 - 040479 - 83 which is also Exh PP 17 - 20.
Fourthly, a document recovered from the Thomson's offices at Midrand that is Exh M 5 - 040100 - 102, a memorandum from one E. Arrubarrena to the Thomson's head office, a copy of which was sent to Thetard as the local director of the two South African subsidiaries.
And finally, a letter recovered from Nkobi Holdings that is Exh M 4 - 030021 - 030022#2.
It is no longer in dispute that the document that is Exh DD 9, or the oral evidence of Messrs Parker and Read about it, are admissible, or the minute that is Exh M 5 - 040155. But of course, nothing in that acceptance detracts from any subsequent argument that the relevance of any of these is too remote or tenuous for any weight to be attached to them.
Turning first then to the question of what has conveniently been called the "encrypted fax", there are in fact several documents involved here; the original manuscript draft written in French which is Exhs E 25 and 26; a typed version of this - also in French. which is Exh E 27 prepared by Dr Flechais as part of his translation exercise; his subsequent translation into English of that handwritten draft which is E 28; the typed encrypted fax itself which is E 29 and finally a translation of that fax which is E 30. The contents and the translations thereof have been set out in the appropriate file of exhibits and there is no need to repeat them here.
It is now common cause that Exhs 25 and 26 was written out by the then local director of Thomsons CSF Holdings (Southern Africa) (Pty) Limited and Thomsons CSF (Pty) Limited, one Alain Thetard.
Mr Downer advanced four alternative bases upon any one of which he said, these encrypted fax documents could be admitted, notwithstanding that technically, the contents are hearsay, the probative value of which depends on someone other than Mrs Delique, who put them in evidence.
First that the fax is an executive statement made in furtherance of a common purpose that was a conspiracy between all the Thomson companies and Acc No 1, to pay Jacob Zuma R500 000 per year for two years for his protection of Thomson CSF during an anticipated enquiry into illicit dealing in the bidding process for the defence force arms acquisition package, and thereafter for his future promotion of Thomsons' interests in this country.
Secondly, that the fax is admissible in terms of section 332 of the Criminal Procedure Act in that being a document drawn up or kept in the ordinary course of business of a Thomson's company, or which was in the custody or under the control of any servant of that company in the ordinary course of business, or in his capacity as a servant of the company, it is prima facie proof of its contents and admissible in evidence in criminal proceedings against a director of that company.
Thirdly, that it is admissible in terms of section 222 of the Criminal Procedure Act as read with sections 33 to section 38 of the Civil Proceedings Evidence Act No 25 of 1965 because it is a statement in a document of which direct oral evidence would be admissible if the person who made it was called as a witness to establish it. Where the person who made the statement had personal knowledge of the matters it deals with and who is outside this country in circumstances where it is not reasonably practical to secure his attendance, then the original document is admissible as evidence of that fact; as long as the author of the statement did not make it at a time when the proceedings in which it is sought to admit it were pending or anticipated. That is to say it must be free of any suggestion that the statement has been made with the possibility in mind of it being used in legal proceedings.
Fourthly, that it also falls within the ambit of section 221 of the Criminal Procedure Act because it is a statement contained in a document of which direct oral evidence would be admissible and which tends to establish that fact, if the document in question forms part of a record relating to any business, and has been compiled in the course of that business from information supplied, directly or indirectly, by someone who had personal knowledge of the matters dealt with in the information so supplied, and the person who supplied the information in the document is dead or outside the country or for any other prescribed reason is unable to attend Court as a witness.
And lastly, says Mr Downer, it is admissible in terms of section 3(1)(c) of the Law of Evidence Amendment Act No 45 of 1988, because, having regard to the several factors set out in sub paragraphs (i) - (vii) of the section, to admit it would be in the interests of justice.
Turning then to the first basis of admissibility contended by the State, the appropriate point of departure is the general rule of the law of evidence that an admission is not admissible against anyone except its maker. An extra-curial statement made by a person who is not a party to the suit such as an accused, is excluded because it is hearsay; and such an admission is only admissible if it qualifies as an exception to the hearsay rule. One of those exceptions is relevant acts or declarations made in furtherance of a common purpose, and that exception is based on the fact that such persons share a privity of interest. So where X, Y and Z are engaged on a common purpose, a relevant statement made by X in furtherance of that common purpose, is admissible against Y and Z. Each party to a criminal enterprise is liable in our law for the acts of another or others, as a socius criminis, even if he does not know of the particular act when it is done.
To be relevant and therefore admissible however, such statements must be "executive"; that is to say, made in the course of actually achieving the execution or carrying out of the common purpose. If the statement does not fall into that category, but is merely of historical interest, it is classified as "narrative", and because it does nothing to establish the execution of the common purpose, it is irrelevant and therefore inadmissible.
Then even before such executive statements can be admitted in evidence, the conspiracy that is the common purpose as well as the accused's participation in it, must likewise be established. This produces something of a chicken and egg situation. But in deciding whether that is so proved, there is ample judicial authority to the effect that reference to the actual statement in dispute, is also allowed. As long as both the executive nature of the statement and the accused's participation in the conspiracy, are eventually established to die necessary degree of proof, it does not matter in which order those steps are taken. The evidence is then received, not on the basis of statement made by Thetard that is binding on the present accused, but as an act of one of several persons who are alleged to have acted in concert in committing the crime.
As Schreiner JA puts it in R v Mayet 1957(1) SA 492 at 494 F - G (A) :
"If all the evidence brings the Court to a conviction that the evidence of a conspiracy and the identity of the conspirators are proved, the law does not find an insuperable difficulty in the logical objection that some of the evidence could only be used if the eventual conclusion was established."
So it is permissible for the foundation provided by the evidence aliunde to be strengthened by the statement of the co-conspirator.
The same approach is reflected in the English law whence the principle of criminal conspiracy originated.
"Things said or done or written while the conspiracy was on foot are relevant as evidence of the common intention once reasonable ground has been shown to believe in its existence"
per Lord Wright in Mirza Akbar v The King 1940(3) A.E.R. 585 (P.C.).
In the instant case, it is the main charge on Count 3 that is in issue. This charge as amplified in the further particulars, alleges an agreement between the parent Thomson CSF company, represented by the director of the local Thomson CSF companies, their local director Alain Thetard, and the accuseds including the then Acc No 11, and Jacob Zuma, to pay Zuma R500 000 a year until dividends from ADS became available as an inducement to protect Thomsons from the anticipated enquiry into alleged wrongdoing in the bidding process, and thereafter to further the interests of the Thomson companies in this country.
As part of the evidence aliunde that the State is required to lead, whether before of [sic] after reference to the hearsay statement itself, Mr Downer exhaustively sifted through a positive mine dump of evidence in search of the nuggets that establish this aspect of his case. It is not necessary or desirable to refer to these in the same detail. Suffice it to say that, starting even before the 1994 elections, Thomsons showed and maintained a tenacious interest in securing government driven contracts that fell within its multifarious capabilities. Particularly was this evident over the arms acquisition defence programme when a welter of internal notes and memos showed that this resolve plainly included meeting and cultivating leading political figures in the government hierarchy, either directly or through the intervention of some individuals of perceived influence, who claimed to have the ear of such figures. And this continued throughout the bidding process as indications were received from these cultivated contacts from time to time, that one or other aspect of Thomsons' bids met reported antipathy or possible acceptance. That business interests could be advanced by informal goodwill, was by no means an alien concept to these companies.
So far as the disputed fax is concerned, an early indication of an awareness of Jacob Zuma's potential influence is contained in one of these memos, which identifies him as "the rising man", notwithstanding some unspecified problem that had to be resolved. This perception is not surprising since Zuma was, well before 1999 according to Professor Sono, widely regarded as being the country's next Deputy President, including by ACC No 1. Moreover, although he was not then a member of the national government, reports compiled by Thetard, the local Thomson's director, as he monitored events during the bidding process, indicate that Zuma certainly involved himself in the informal contacts between bidders and selectors; and actually intervened with Thomsons on Shaik‘s behalf when it appeared that there was an element of anti-Nkobi companies and anti-Shaik prejudice at the highest levels of the selection process, to the effect that Shaik's inclusion as Thomsons' preferred empowerment partner, might even jeopardise Thomsons' bid. Bearing in mind that Thomsons did in fact initially exclude Shaik as its preferred partner in ADS in favour of FBS (Pty) Limited, this apprehension on Shaik's part which led to his seeking Zuma's help, seems to have been well founded.
That readiness to help went so far as to meet with Perrier in London at Shaik‘s arrangement on 2nd July 1998, and again by previous arrangement on Perrier's visit to South Africa in November of that year, when on the 18th of that month he attended a meeting at the Nkobi offices at which Zuma was present. The end result of these contacts was a reversal of Thomsons' decision to exclude Nkobi from a direct ADS shareholding and to restore that interest and entitlement to a share of the corvette contract by restructuring the shareholding of Thomsons CSF (Pty) Limited and transferring the parent group's shares in ADS to that local operating company, so that effectively, in that way, Nkobi Investments acquired a 10% interest in ADS.
Within a year of the bidding result, public perceptions of irregularity in the process that led to the result, whether justified in truth or not, resulted in Ms de Lille's revelations in Parliament on the 9th September 1999, and her Notice of Motion calling for a judicial commission of enquiry into the arms acquisition and offset process. By then, Jacob Zuma was the country's Deputy President, whatever Thetard's perceived problem about him may have been. That the allegations emanating from Ms de Lille also included Zuma seems clear from the formal statement of denial issued by the Presidency on the same day, emphatically refuting any such suggestion. But as the clamour grew, fuel was added to the fire by reference in the media to a letter by "concerned" ANC members of Parliament, and by Minister Lekota's approval of the Auditor-General's decision to regard the arms acquisition programme as "a high risk exercise", warranting special audit investigations. He did that on 28th September 1959.
On the day of Ms de Lille's statement in Parliament, Thetard met in his office then in Pretoria, a man from Aerospatiele, another French arms company that had entered the lists for part of the aircraft acquisition programme. Mrs Marais, then Thetard's secretary, deposed to hearing excited raised voices in the office on that occasion, and after that meeting, Thetard made the unsolicited and spontaneous remark to her to the effect that the current fuss about bribery left him surprised and at something of a loss to understand.
But thereafter, the evidence shows, indeed it is common cause, that on 30th September 1999 Thetard met with Schabir Shaik, and it is also agreed that they talked about Jacob Zuma and money. Then that meeting was followed a day later by a letter from Shaik to Thetard asking him to arrange a meeting with Perrier in Paris on 22nd October, a request that was repeated by another letter written on 22nd October. Then there is an extract from Thetard's 1999 diary, recovered from the Thomsons offices at Midrand, that shows an appointment to meet J P Perrier in Paris at 14h30 on 10th November 1999. That entry is admitted as being what it purports to be and admissible in evidence. The language used in these messages is conspicuously neutral - even opaque - when referring to the purpose of a desired meeting, with no mention whatever of any donation being the subject of the meetings.
By mid-January of 2000, media reports were indicating that in consequence of the de Lille revelations and the letter from concerned ANC members of Parliament, that the Heath Special Investigation Unit intended commencing an enquiry into the matter. That published intention was somewhat presumptuous because no Presidential authority was issued for such an investigation to take place. But that was not the end of the matter, for it was then announced that the question was to be pursued by other interested bodies, being the Auditor General, the Public Protector and the National Prosecuting Authority. Thereafter there was a flurry of meetings. Shaik with Zuma in Cape Town on the 8th February 2000 and another between those two on 15th February in Durban. In between those two encounters was this fax from Shaik to Thetard typical of the exchanges, referring to "... our understanding, Re : Deputy President Jacob Zuma and issues raised. I will appreciate it if you can communicate to me your availability to meet". At the foot of this document is a handwritten answer from Thetard - a not unusual way of responding to a fax - saying "At this occasion, I propose to have a meeting with you regarding the issue raised in your fax".
Thereafter, by another fax of 8th March, a meeting of Thetard with Zuma was arranged for the 10th March, which, it is common cause, took place on the next day, Saturday 11th March. And on the following Friday 17th March, as Mrs Delique described, she was instructed to fax the handwritten draft, the document. in dispute, duly typed for transmission purposes, to Thomsons head office in Paris, to two officials who were Thetard's superiors in the Thomsons' directorate.
That all points quite cogently to some shared interest and endeavour on the part of Shaik and Thetard, to which Zuma was an accessory part, and for which the knowledge and notification of the Thomsons' head office was necessary. Indeed, that is not disputed, but it is claimed that the shared interest being so pursued, was a request to Thomsons to make a contribution to the Zuma Education Trust.
Having regard then to the actual declaration in dispute, what does it say?
The subject of the missive is entitled "JZ\S Shaik". In the introductory paragraph it refers to two previous meetings, one with S Shaik in Durban on 30th September 1999, and his (Thetard's) conversation with Perrier in Paris on 10th November 1999; and goes on to say that pursuant to these, he has at last been able to meet J Z in Durban on 11th of the current month, during a private interview in the presence of "S S", which plainly means Acc No 1. The missive then explains that he had previously arranged, as the mechanics of implementing the request made by S S at the end of September 1999, for some indication from J Z that he confirmed the request made earlier, and it states quite plainly, that this was done.
The author then reminds the recipients of the two main reasons for the payment required from Thomsons as being their protection by Zuma during the current investigation, referred to as Sitron - the accepted code name for the post-arms acquisition situation, and J Z‘ s permanent ongoing support thereafter for Thomsons' future projects; and secondly of the amount so confirmed as being R500 000 or "500k ZAR" per annum, until the first dividend payments were received from ADS.
On the State's version of the meeting on 11th March 2000. there can be no valid doubt That, while there are references to past events such as the meetings of September and November in the previous year, this document relates the successful resolution of a remaining area of uncertainty, which was Zuma's confirmation of whatever it was that Shaik had requested at the end of September 1999; and the overwhelming likelihood of that, is the reciprocal obligations set out in the last part of the message. While there may be some narrative aspects in it in the form of the reference to past meetings having taken place, these are really inseparable from the main message, because they are references to steps previously taken that have culminated in the final desired achievement.
Giving the question the best consideration I can, the letter, particularly the second and third paragraphs, is in my assessment plainly a statement that is executive in nature. It is reporting the successful conclusion of the common purpose, namely obtaining confirmation by Zuma of the suggested performance and quidpro quo originally put forward by Shaik the previous year, and which was obviously mentioned, if not also discussed, with Perrier on 10th November 1999. It reports the eventual achievement of a suggested plan that has been some months in bringing to fruition. It seems unarguably to be the final step in the accomplishment of an agreement to pay Zuma the money indicated in exchange for his influence to protect and further Thomsons' interests, in which Shaik had a substantial interest and which Thomsons, at least up until 2003, had been desirous of expanding.
In answer to this Mr van Zyl raises two arguments.
First, that this document cannot be used by the State as evidence in furtherance of a common purpose, because the State was specifically asked in a request for further particulars to the charge on Count 3, to indicate precisely what acts were done by Thetard, who was one of the alleged conspirators, in furtherance of this common purpose. In answer to this request, no allegation was made that in so pursuing the common purpose, Thetard either drafted the document in question, or caused it to be faxed to his superiors in Paris. If these allegations had been part of the State case, so the argument runs, then it should so have informed the accused in reply to the relevant request for further particulars. It did not do so, and in a matter of this kind the State should not be allowed to introduce acts allegedly committed in furtherance of a common purpose that were never part of its case, in an attempt to introduce otherwise inadmissible evidence.
This is not a situation where the State has given particulars of the way in which an offence was committed, and then relied on something different in the evidence it produced. This complaint is directed at the omission to disclose, as a particular of the charge, the fact that Thetard prepared the draft fax and then caused it to be transmitted to Paris. An examination of the request for further particulars of the charge and of the reply in question, reveals the following : Paragraph 84 of the request asked if it was alleged that all the accused were party to the common purpose - which it was, and it should be remembered that Thomsons CSF (Pty) Limited was still an accused at that stage. Then Paragraph 84.2 went on to enquire precisely which act or acts was or were done by those persons on behalf of the corporate accuseds in the furtherance of the common purpose. The answer was to refer the accuseds to paragraphs 3.1 and 3.2 or the full reply. These paragraphs contain a considerable number of sub-paragraphs, but the relevant one is paragraph 3.2.4, which states that Thomsons CSF, as represented by Thetard, Perrier or de Jomoron, agreed to pay Zuma the sum of R500 000 per annum at a precise date or dates unknown, but during the period from 30th September 1999 to the 11th March 2000 and extending thereafter to Perrier's personal agreement at a subsequent meeting in Paris with Acc No 1.
And in further elucidation of paragraph 29 of the preamble to the charge, whence this enquiry all started, the reply to the request went on to allege that the agreement reached by tho accuseds to pay Zuma R500 000 was either oral, or by means of some coded communication, or implied from an encoded declaration, or in written correspondence in all the circumstances of the case, over the period from 30th September 1999 to the time when Perrier allegedly approved it. There was no other request to elucidate this, so it may be assumed it met the accused's query.
Obviously an accused person must be told of the charge he has to meet to know what to present as his defence. Here they were told that Thetard's contribution to carrying out the common purpose had been to reach the agreement, by one or other or more of the avenues indicated. In resolving a dispute of this sort , it is important to distinguish between particulars necessary to inform an accused of the case against him, and evidence that may be led as proof of that case; and it does not mean that an accused must be informed of every detail of the evidence the State will present or lead in support of the charge.
The particulars made it clear that Thetard's contribution to the furtherance of the common purpose was, on behalf of the Thomson companies both parent and local, to reach agreement with Zuma about the suggestion made earlier by Acc No 1. How he reported the reaching of that agreement was evidential material in support of that allegation. That he reported success in the way he did was not a particular which the accused needed to know to meet this charge. The issue was whether Thetard made any such agreement, not that he reported doing so. I do not think this was a particular that was part of the charge as opposed to evidence in support of a specified particular.
Even if it was a particular of the charge, the crucial question is whether the accused was prejudiced by any such omission. As Holmes JA said in S v Kearney 1964 (2) SA 495 (A), which, although a case of a variation between charge and evidence, emphasised that the question was whether the variation was important and whether the accused had been prejudiced by it.
I do not think it is possible to argue that they were in the instant case. If the production of this draft fax had taken the accused by surprise, protest could have been made and would have resulted in a postponement to enable them to meet this unexpected development if there was any substance in it, and enough time given to enable adequate preparation to meet it. But there was no sign of this. Not only was Mr van Zyl's original objection limited to the point that the document was narrative in character and not executive but the ensuing cross-examination of Mrs Delique demonstrated clearly a readiness and ability to deal adequately with the situation that production of the fax presented and indicated the basis of the accused's response namely, that this fax was never sent.
The authorities relied on by Mr van Zyl are clearly distinguishable. In the reported judgment of S v Hugo 1976 (4) SA 536, the particulars provided to the accused to meet a charge of fraud as the misrepresentation he had allegedly made, was not the misrepresentation which the State thereafter led in the evidence. And in S v Rosenthal 1980 (1) SA 65 (A), the accused had been charged with a fraud on the Registrar of Banks, whereas the evidence led showed if anything, a fraud on a number of separate commercial banks. Not surprisingly, counsel for the appellant had not cross-examined the evidence of fraud on the banks, since it was not the case the accused had to meet.
I do not think, in the result, that there is any substance in this complaint.
The second leg of Mr van Zyl's argument on this aspect, is that insofar as there must be adequate proof to the level necessary in a criminal case of a conspiracy, before my reliance can be placed on the statement of Thetard to be admissible against the accuseds, there is no such acceptable proof in this case; particularly proof as to whether the document was typed by Mrs Delique on Thetard‘s instructions and whether it was faxed, as she claimed, to Perrier and de Jomoron in Paris. On this issue, Mrs Deliqne was a single witness, and her evidence, Mr van Zyl argues, does not merit acceptance because it is too improbable to be true.
That argument was comprehensively disputed by the prosecutor. Not only did he contend that the evidence was not improbable, but argued that it was positively supported by objectively ascertainable material facts. To resolve this difference would entail, unavoidably, an assessment and decision on Mrs Delique's credibility. I do not think I should embark on such an exercise. First, because such a decision is eminently one for the whole Court, and then only at the end of the case, when all the evidence has been led. And secondly, I am only concerned with deciding whether this particular document, which contains the hearsay statement, is executive or narrative in content. I do not see that the further question of whether Mrs Delique subsequently was told to type it or send the typed fax to Paris, sheds any helpful light on that question. It may, eventually, if well-founded, show that the alleged conspiracy did not reach as far as notification of the Thomsons head office. But that is not the instant question.
And in any event, such criticism of Mrs Delique as there may be, takes no account of the other evidence, including that which is common cause, that points aliumde to the existence of an agreement between Thomsons, Shaik and Jacob Zuma, to achieve some common object.
Apart from Thomsons willingness to cultivate goodwill and the identification of Zuma as a coming man there is also the alarm caused to the company by publicly debated allegations of its complicity in irregular dealings in the arms acquisition programme. The narrative of events thereafter, including Zuma's inability to live within his salary and Shaik's increasing difficulty in funding the shortfall, there are other indications that point to a convergence of activities to meet the possible danger of public embarrassment or even prosecution. There is evidence of repeated meetings from late 1999 to May 2000 between the alleged conspirators. And it is strange, for example, that all the meetings between Thetard and Shaik were arranged in curiously opaque language to discuss an "issue", that was never described in writing. Then there is the fact that the manuscript draft proposed by Thetard expressly indicated the addressees to whom it should be sent, which is a curious thing for Thetard to do if he did not mean it to be so dispatched. Then there is the subsequent discovery on the computer disk that Mrs Delique would have used in her daily work, of a typed reproduction of the handwritten draft which had not been typed on her home computer and which included other office letters, including, after the fax, her own letter of resignation. That no sign of the received messages was found in Paris or Mauritius seems to me to be hardly surprising. Anyone at a head office being advised of achievement of this sort of thing if it was, in truth, the arrangement to pay a bribe, would normally be astute to leave no sign of it lying about. But to support the evidence that the typed fax was sent to Paris, there is at least the Telkom billing record which reflects such transmissions.
If then, the document is an executive statement and there is some evidence aliunde of a common purpose between the parties identified in the charge, then the contents of the statement, together with the evidence aliunde, persuade me to the necessary extent that it is an executive statement in furtherance of a common purpose, the purpose, on the face of it, being to pay an agreed sum of money to Jacob Zuma, in exchange for the desired counter performance. In those circumstances it is admissible in evidence against other socii criminii.
That conclusion makes it unnecessary to consider any of the other bases on which Mr Downer relied. But I am bound to say, that even if I am wrong in the conclusion just spelled out, then I think it would at least be admissible in addition under section 3(I)(c) of the Law of Evidence Amendment Act of 1988.
This Act of course, only opens the door to the admission of hearsay evidence if the interests of justice require it, and then only after a consideration of the several different but inter-related factors that are set out in sub-paragraphs (i) - (vi) in that section, and any other factor that the Court thinks should be taken into account.
Without going too deeply into the question, because it is not necessary, I would have thought eventually that although this is a criminal trial, and there are good reasons for taking a more cautious approach to the admission of hearsay evidence in such a trial, this evidence - although hearsay - is a carefully prepared and corrected recital of events by a person closely involved in the matter he reports, and is obviously anxious to set out correctly what he had achieved. It is tendered by the State as the keystone in the arch of a common purpose that it has alleged on Count 3, and the piece that completes the puzzle. Coming from one of the alleged conspirators, its probative value would be high, because it is evidence of the completion of a plan to offer money to a recipient who could beneficially influence external events to the advantage of the conspirators.
The evidence is not given in person, because the witness who could give it and who was originally sought to be arrested as a conspirator, is outside the country and refuses to return to give evidence, notwithstanding that the warrants for his arrest have been withdrawn. I do not think there would he any substantial prejudice to the accused in admitting the evidence on this basis, because although the author could not be cross-examined, the acceptability of the validity of the contents of the document can certainly be challenged, not least by the several different explanations of the document which the author has subsequently given and his own alleged lack of honesty of which there is evidence from a State witness.
But overarching all these factors, it seems to me that as the accused's explanation of 'he common purpose for the solicitation of money from Thomsons is an entirely innocent one, then the interests of justice require that the State's version of this common purpose in the form of this encrypted fax, also at least be placed in the scales. Once there of course, for the State to succeed, the scale would have to come down to the necessary level of proof beyond a reasonable doubt for its version to be accepted. But at least the interests of justice require that it be placed in the scale to start with.
So I might well have been disposed to admit the disputed document on this basis too. Indeed it may well be arguable that the fax could, likewise be admitted on the basis of section 332(3) and (6) of the Criminal Procedure Act, as was also argued by Mr Downer, but it is not necessary to explore this any further.
Turning next to the dispute over the documents seized in the search of the Paris office of Thomson CSF (France), this has been reduced to a much smaller compass than the original ambit of objection. What remain in contention are the following :
(i) Exh PP pages 5 - 12
(ii) Exh PP pages 21 - 25
(iii) Exh PP pages 32 - 37
(iv) Exh M 7 page 040479 - 483, which is also Exh PP pages 17 - 20 being Mr Chabas' report to his fellow director; and
(v) Exh M 5 page 040098, letter from Thetard to a Thomson CSF division dated 6th April 2000 and copied to Perrier, about Thomson (Pty) Limited shareholding in ADS (Pty) Limited.
Those documents in the first thee sub-paragraphs are the reports of the several police officers who conducted that search and which purport to identify the documents each one seized as he or she thought it fell within the ambit of the authorised seizure, together with a brief précis of each such document.
Exh M 7 page 040479 - 483, is a report by Mr Chabas, a director of Thomsons CSF to a colleague or superior, on his visit to South Africa over the 19th - 21st February 2001, to prepare for a meeting o f the directors of ADS (Pty) Limited, and the question of the dividends due during that coming year from that company to Thomsons CSF (Pty) Limited. And Exh M 5 page 040098 is a letter from Thetard in Pretoria dated 6th April 2000 to a division of Thomsons CSF in Paris and copied to Perrier, about Thomsons CSF (Pty) Limited's shareholding in ADS, and Shaik's wish to become a direct shareholder in the latter, with a request to meet Perrier about all this on 23rd May of tat year, when the board of ADS directors was due to meet.
Insofar as the three separate reports by the French police are concerned, these are not the copies of the documents that were seized in the search. There is no dispute about those. These separate reports are objected to by Mr van Zyl on the basis that they are nothing more than what the relevant police officer thought each document said, each document reflecting in turn what some other non-available witness also believed, which may or may not be reliable in either case. They are doubly hearsay and take the case no further forward, since the documents themselves as selected by the State, are available without objection. In short, these reports are quite irrelevant and should not be admitted. I agree with his argument and from his markedly different response, I thought Mr Downer did too. But whether he did or not and whether these reports are an explanation of the process of search and seizure, and to identify the documents so seized, that is not in issue. So they do nothing to further the case, and should not be part of the evidence.
Turning next to Mr Chabas' report, Mr van Zyl's objection to this was that the contribution to the reported discussion that is attributed in this report to Mr Shaik, was too unreliable to be accepted. There was no way of knowing whether what Shaik actually said is what is quoted in the report, nor indeed whether the author correctly understood the contribution in the way it was meant. It too, is really double hearsay, being what Chabas says he thinks Shaik said, so it is also too unreliable to be safely accepted.
It was Mr Downer's argument on the other hand, that this should be accepted by virtue of section 3(1)(c) of the Law of Evidence of Amendment Act No 45 of 1988.
The author of this statement is a French citizen who declines to come to this country to give evidence about it. It is tendered as hearsay therefore, to show Shaik's impatience with the delay in his receipt of dividends from ADS and the alleged reason for that impatience. It then goes on to report his suggestions as to how that delay - being Nkobi's share of the dividends and paid into the Escrow account - could be circumvented. The identity of the persons who Shaik wanted to help with these dividends could include Jacob Zuma, as the State would probably urge and as the encrypted fax indicated, this being in early 2001 when payment for the Nkandla residence was overdue. But it could also mean other people especially as, if the State allegations are consistent, payment for Zuma's residence was going to be made via the Service Provider Agreement. So at least the statement is perceptibly ambivalent, and its probative value consequently reduced. Nor would it be possible to ascertain by cross-examination the reliability of the author's understanding of what Shaik said, or whether some other qualification was added, that explained the possibly suspicious innuendo.
Giving the problem the best thought I can, I am not eventually persuaded that the interests of justice require the admission of this report under section 3(1)© of Act 45 of 1988.
Then lastly there is the letter that is Exh M 5 page 04009S. This letter is written by Thetard on the 6th April 2000 as a director of Thomsons CSF (Pty) Limited, and reporting the desire of Nkobi and therefore of Shaik, expressed at a general meeting of the company's shareholders, to become a direct shareholder in ADS, rather than an indirect shareholder by virtue of a shareholding in Thomsons CSF (Pty) Limited, which established only an indirect interest. It also reports a threat on the part of Shaik fo withdraw from Thomsons CSF (Pty) Limited and ADS, if his request is not met. It is a document prepared in the usual course of the business of Thomsons CSF (Pty) Limited by a director of that company in the course of his duties as a director and is tendered in evidence in proceedings against another director of that company. That seems to me to fall within the ambit of section 332(6)(b) of the Criminal Procedure Act, and therefore to be prima facie proof of its contents and admissible in evidence.
Before turning to the next distinct category of disputed documents, there are two single documents that should be next considered.
The first of these is Exh M 5 page 040100 - 102, and the second is the later from Acc No 1 that is Exh M 4 page 030021 - 22#2, a document that is also referred to in van der Walt's report Exh G, at paragraph 10.1.1.4 on page 75.
Exh M 5 040100 - 102, is another report by a visiting official of Thomsons CSF (France) to a colleague or superior in Paris. It is by a Mr E Arrubarrena to the same Mr Roger, written in Paris on 9th June 2000, but copied to Thetard for his information; and, it should be added, retained at the local office of the Thomsons South African subsidiaries, whence it was recovered in the search and hand over of documents to the Directorate of Special Operations in June 2001. This visit and report on it, is plainly a consequence of the visit and report by Chabas earlier in the year; and among the topics for discussion on the instant occasion, is a meeting with Acc No 1 to deal with his latest discontent about aspects of the situation in ADS (Pty) Limited, it being apparent that he was by then, no longer pressing his request to be a direct shareholder in that company.
Although the report is primarily about the situation in ADS (Pty) Limited, its relevance to Shaik is the fact that his share in Thomsons CSF (Pty) Limited gave him, through Nkobi Investments, the indirect shareholding in ADS. So whatever happened in ADS, would be of greater or lesser consequence to its majority shareholder, which included Shaik‘s company, and of which majority shareholder he was also a director. So even if the document was not drawn up in the ordinary course of business of the Thomsons subsidiaries in South Africa, particularly Thomsons CSF (Pty) Limited, then it was certainly sent to, and kept by, a director of Thomsons CSF (Pty) Limited in his capacity as a director, and so received and kept by him in the ordinary course of business. In those circumstances it is therefore prima facie proof of its contents and admissible against a director of that company in criminal proceedings against that other director, in terms of section 332(6)(b) of the Criminal Procedure Act.
Then the last of these single documents is Exh M 4 page 030021 - 22#2. This is a letter written by Acc No 1 on the 18th October 1995 to someone called J M Pizano, confirming a number of matters discussed at a meeting with Pizano on the previous day. One of the conclusions reached is reflected in paragraph 5 on page 2 of that letter which reads "(SS) to continue influencing the stoppage of current Tender through the Fivaz route", a reference, so it was put to a State witness, of a proposal by the then Commissioner of Police to install an analogue telecommunications system for the police, as opposed to a digital system which either a new company called Kobitel or Pizano, could supply. The State wishes to tender this letter, which being an extra-curial statement by Acc No 1 would normally be admissible against him, as some part o f the alleged readiness by Acc No 1 to use the political influence he commanded, to his economic benefit.
There is nothing ex facie the letter to show that the available influence is Jacob Zuma, which is of course the basis of the present allegations by the State, and Mr van Zyl resisted its admission on the grounds that without any such indication, the letter suggested other political influence which was not charged in the present proceedings. That was similar fact evidence which was not admissible in the instant circumstances, and was in any event, too remote to be of relevance. Moreover, the letter is dated 18th October 1995 before any payments had been made to or on behalf of Zuma which constitute the basis of the allegation that the accuseds enjoyed the favour of political influence for their economic interests.
While there may not have been any payments of money to or for Zuma by then, there are letters by Acc No 1 written earlier that year, which show a growing association with Zuma. Starting with a trip to Malaysia with Zuma in July 1995 that is referred to in Exh M 5 030012, in search of business possibilities with Malaysian enterprises, there is another letter that is M 5 030018, also to Pizano, confirming a meeting with Zuma for the 5th September 1995 at 8pm. Moreover, as Minister of Economic Affairs and Tourism in the provincial government of KwaZulu-Natal by then, it was the accused's case that Zuma had already asked him, that is Shaik, to act as his economic advisor on matters that might affect his area of responsibilities. If there was possible political influence implied in the letter of 18th October 1995, then it seems to be at least possible that it was Zuma which the writer had in mind. The letter is in my view therefore not too remote, nor would it be similar fact evidence. It is therefore ruled as being admissible.
The next group of documents considered, are those recovered from the offices of Thales International (Africa) Limited, formerly Thomsons CSF Africa Limited, a subsidiary of Thomsons CSF France, with offices situated in Port Louis, Mauritius: and those recovered from the offices of Valmet Mauritius Limited - which is the offshore management company of Thales International Africa Limited, and with offices in the same building.
These documents are :
(i) Exh M 6 page 040400 A - B. These are two invoices from an administration office of the Thomsons group situated in Istanbul and sent to the Valmet company for payment. The payment indicated is for the euro equivalent of R250 000 and described as "Lobbying fees", which is what the prosecution says is a reference to the Service Provider Agreement payment made from the Mauritius company to Kobitech in February 2001. The invoice refers to the payment being according to details in an annexure, but no such annexure was attached to the document seized.
(ii) Exh M 6 page 040390, which is also an exhibit TT pages 1 and 2, and which are the relevant pages of Thetard's diary for the year 2000 for the 10th and 11th March respectively, the two days of the meetings with Shaik and Zuma from the result of which, it is alleged, the encrypted fax was compiled.
(iii) Exh M 6 page 040414, which is a fax from Shaik to Thetard at his then Pretoria office, dated 11th December 2000, and reporting unsuccessful attempts to contact Thetard, the sending of the application documents for the Service Provider Agreement, and asking for the Service Provider Agreement payment to be made before the 15th December 2000, when Shaik's office would close until the 8th January 2001; and bearing a manuscript response from Thetard asking for the original copy of the document and annexures.
(iv) Exh O pages 37 - 43, is also found at M 20 page 110061 - 64, which is a fax dispatch from Shaik to Thetard dated 8th December 2000 of the Service Provider Agreement application form "as discussed" with the request to "expedite our arrangement as soon as possible, as matters are becoming extremely urgent with my client"; and the completed application form in the name of Kobifin (Pty) Limited.
(v) Pages 116 - 122 of Exh 0, which is a profit and loss account of Thales International Limited for the period ending 30th September 2001, and which contains on page 0 121, an item of expenditure dated 31st January 2001 to Kobifin of euros 34 782,61p.
Those documents, like those seized from the offices of Thomsons CSF France in Paris, were the result of an application by the Directorate of Special Operations to its equivalent in Mauritius, for the latter to seek leave of the High Court of that country as mutual legal assistance, to enter the premises of the two Mauritius-based companies in question, to search them for any relevant correspondence or documents - the relevance emerging from a lengthy background description of the offences being investigated - that have eventually resulted in these proceedings; and to obtain by commission Rogatoire, sworn statements from the relevant witnesses to explain and authenticate aid forward, any correspondence or documents so found and seized after authentication.
The Mauritian government official who then pursued the application, was a Mrs Indira Manrakhan, the director of the Economic Crime Office of Mauritius. On the strength of Ms Ferraira's application, Mrs Manrakhan applied to the High Court of Mauritius for authority to grant and activate the request so received. After setting out the factors that led to the belief that there were documents in the possession of the local Thomsons companies that were material to the investigation of various suspected offences, Mrs Manrakhan said in paragraph 13 of her founding affidavit, that the order sought was necessary for both the investigation of the offences and for the prosecution of the perpetrators of the offences suspected.
The resulting order of the Court is at Exh R 1 - 4 and authorises the applicant to,
(a) enter and search (the identified premises) and
(b) remove any document or material for the purposes of executing the request, and in particular (the long list of documents set out in Ms Ferreira's affidavit.)
The evidence shows that, following the grant of this order, search of the identified offices revealed the existence of these several disputed documents, that possession was taken of them back to the office of the director of the Economic Crime Unit, that copies were then made of them, those copies were authenticated and then given on the spot to the prosecutor representative, who had accompanied the application and consequent search. Having obtained those, they were brought back to South Africa and they are now part of the State's case in this trial. That all happened on 5th October 2001.
On 27th March 2003, an application was brought in the Mauritius High Court by Thales International, Thetard and Valmet, now known as Mutual Trust Limited, against the present equivalent of the Economic Crime Unit. This latter had apparently been superseded by a new independent structure called the Independent Commission against Corruption.
The relief sought in this later application is not known because the application is not presently available. But it can be assumed that it was either for the return of the documents seized in October 2001, the originals of which, and possibly additional copies thereof, were still in the custody and control of the ICAC as the successor in office to the former Serious Economic Crime unit, or at least that these should not be allowed to leave Mauritius. Whatever it was, the result of the application was an agreement reached between the dispossessed applicants and the ICAC to the effect that neither the documents seized nor any copies thereof would be sent to the South African authorities. That agreement was reflected in the Court order, which accordingly "disposed of" the application - meaning, it seems, that it no longer needed to be pursued.
Mr van Zyl objected to the acceptance of these documents on the basis that neither the affidavit of Ms Ferreira seeking mutual legal assistance of the Mauritius Serious Economic Crime office, nor the affidavit of Mrs Manrakhan on which the Court order was premised, made any request for authority to the South African Directorate of Special Operations to remove any copies of the documents seized as a result of the search and seizure exercise in October 2001. So such removal was not authorised by the Mauritian High Court. That being so, and the subsequent agreement recorded by the same Court in March 2003 prohibiting the export of any of the documents so seized or copies thereof, the intended use by the prosecutor in this case of those documents, would essentially be improper, if not unlawful. And bearing in mind the requirements of section 35 of the Constitution and the need to respect the orders of a superior Court of another country, I ought not to allow the production and use of these documents as evidence in this case.
Mr van Zyl sought support for his argument in a letter from the ICAC of the 25th September 2002, advising that the application by the Thales companies and Thetard had been filed, and seeking some indication as to when and whether the prosecuting authority would need the 13 documents seized on 5th October 2001 and still held in the custody of the Commission, in the event of any prosecution related to them. The same office sent a further letter on 17th January 2003, this time indicating that there was no request in the original letter of 1st October 2001 which sought the mutual assistance from the Mauritian authorities, nominating someone to whom the documents obtained were to be produced. In the absence of any such indication, the Deputy Commissioner of the ICAC considered that the documents so seized could not be sent to this country's prosecution authority in the event of a trial taking place in South Africa. He therefore urged the South African National Prosecuting Authority to make a fresh application to cure this perceived defect.
This all showed said Mr van Zyl, that the Mauritian custodian of the documents did not think they could be used in a prosecution without such a further request, which no doubt helped the ICAC reach the recorded agreement with the applicants in the second application. And the agreement reached between the dispossessed owners of the documents seized and the present custodian, really enforced that prohibition which still remains of effect.
It is true, as Mr Downer accepted, that leave to give copies of the documents seized to the representative of the National Prosecuting Authority who accompanied the applicant in the first application (who happened to be Mr Downer), and who was present at the seizure and subsequent copying and authentication of these by the director of the then Serious Economic Crime Unit, was not, in terms, part of Ms Ferreira's affidavit, nor part of the prayer in the application of 5th October 2001. But he argues that it is plainly implied in the relief that was set out in Ms Ferreira's affidavit and even more clearly stated and sought in Mrs Manrakhan's founding affidavit on which the Mauritian High Court granted the order of 5th October 2001.
The whole object of the exercise was to find, secure, and obtain copies of the suspected documents with a view to these being used in the prosecution. These having been so secured and authenticated were handed to Mr Downer as the authentication process of each one was completed, and he departed for South Africa with them.
On receipt of the letter of September 2002 from the ICAC of Mauritius, he replied that although investigations were still continuing, if there was a prosecution, then the documents would certainly be required, although it could not then be said when such a prosecution might take place. And in answer to the letter of January 2003, he sent a supplementary request of the sort suggested by the ICAC, asking that the original documents still held by the Commission be retained and given to the South African High Commissioner in Mauritius for onward transmission to the national Director of Public Prosecutions of this country, if that Director requested the ICAC to produce them.
Despite repeated enquiries, he received no word as to the result of the request he made as suggested by the ICAC, nor did he know what became of the application by Thales International and others until he was shown, during the present proceedings, a copy of the Court order of March 2003 disposing of the application by agreement.
But the important factor is that the copies of the document he received and now seeks to use were obtained as a result of permission by the High Court granted an application through the proper and normal channels for that purpose. There was nothing underhand or devious about it. It is true, as Mr van Zyl was wont to stress, that the order of the 5th October was granted ex parte and in chambers. But there is nothing sly or deceitful about that, because the serving of notice in such a situation would very likely render the application futile. It is on a similar basis that applications of the same sort be made to the Courts of this country.
Thinking the matter through as best I can, I conclude eventually that Mr Downer is correct in his argument.
In the first place, if one isolates the operative parts of the Court order of the 5th October 2001 in the light of the affidavit of Mrs Manrakhan and the relief requested by Ms Ferreira, it is perfectly clear, if one considers it, that the documents or copies thereof were needed for prosecution purposes. Ms Ferreira plainly asked in addition to the search and seizure, that the documents so seized and forwarded be identified and authenticated by the appropriate witnesses. One does not need a foreign document authenticated unless it is intended to produce it in a Court of law, which, in the light of Ms Ferreira's lengthy background history of the investigation, would obviously mean in a prosecution. Nor does one ask for such documents to be "forwarded", unless they were wanted in this country.
That was, equally plainly, how Mrs Manrakhan understood it, because in paragraph 13 of her founding affidavit, she says "I aver that the order sought is necessary and vital for the purposes of the investigation and for the successful prosecution of the perpetrators of the economic offences". And then the order of the Court was to authorise the applicant who was the director of the Economic Crime unit to : "(a) enter and search the premises of the Thomsons office, and (b) remove any document or material for the purposes of executing the request."
If the request was to search, seize, authenticate and forward these documents - and they could only be forwarded to the prosecution authorities here, then taking the copies so authenticated seems to me to fall comfortably within that authority.
I am inclined to agree with Mr Downer that the explanation of the letters from the director of the new substitute authority of September 2002 and January 2003, is that this new office did not realise that authenticated copies of the documents for use in Court in this country had already been given to Mr Downer by its predecessor; and it believed that he would therefore need either the originals or properly certified copies of them to use in the prosecution which his letter indicated was still pending. That may well be why, when Inspector Coret arrived from Mauritius to give evidence of the search and seizure in October 2001, he arrived with all the original documents in question. That possession is most probably explained by a letter from the Chief of Police of Mauritius requesting these be made available from the ICAC, following permission granted by the Prime Minister of Mauritius for Mauritian police to go to South Africa to give evidence. Why he was given those in November 2004 in view of the Court order of March 2003 notwithstanding Mr van Zyl's argument, must remain a matter of conjecture. But to argue that the documents presently tendered were obtained and are being offered in evidence on an unlawful basis or in breach of a Court order, is simply not tenable. The agreement reflected in the Court order of March 2003 applies to such documents and copies that the ICAC in Mauritius presently has, or had in March 2003, when the order was made. It could not reasonably be advanced as a bar to the State tendering in evidence the documents properly and lawfully obtained in October 2001 by order of the High Court of Mauritius for this very purpose. Despite its initial plausibility then, I am not eventually persuaded that there is any substance in this argument of Mr van Zyl's.
But that is not an end of the matter.
I did not understand Mr van Zyl to urge any alternative reasons for not accepting any of the documents recovered from the Mauritian companies and Thetard, but I may not have heard properly or it may have been an oversight caused by the disjointed way in which these arguments had to be prepared and presented.
But while there can be no question that the statements in the documents signed by Mr Shaik are admissible against him, that does not apply to the two items handed over by the manager of Valmer Limited, namely the two invoices from Istanbul and the Thales International Limited profit and loss account of 30th September 2001. The origin of these, as Mr van Zyl urged at some point in the evidence, is sheer guesswork. There is absolutely nothing to show who, or from what knowledge, committed these statements to paper. Their reliability accordingly is highly questionable and I do not think it would be fair to expect the accused to have to guess at this and to answer them on such a conjectural basis. In my view these are so remote as to be irrelevant and therefore inadmissible.
Then there is the two page extract of Thetard's diary showing meetings on the 10th and 11th March 2000. This would be a record made in the ordinary course of business and kept thereafter in both instances, by a director of Thomsons CSF (Pty) Limited. It is therefore prima facie proof of its contents and admissible against another such director. But in any event, the entries and meetings reflected in this exhibit are amply common cause. These should be regarded as admissible.
Finally then, there remains the issue of Wilson's affidavits. Mr Steynberg, who argued this aspect for the State, relied on section 222 of the Criminal Procedure Act importing as it does, sections 33 to 38 of the Civil Proceedings Evidence Act into the criminal procedure, for the acceptance of these affidavits into the State case.
He said that they - and particularly the first of the two - established facts, that would be admissible if the deponent gave evidence of those facts orally, that those facts had been made in a document and that the original document containing these was therefore admissible, in this case the affidavit made by Wilson on 29th October 2003. The second affidavit, dated 3rd June 2004, corrects an error in the first exercise in the tight of a series of letters that became available to the deponent after making the first affidavit, and its fate is dependent on that of the first affidavit.
On the face of things, Wilson had personal knowledge of matters dealt with in the statement that is his affidavit, and he had finally decided not to come to this county to give evidence about those facts, after earlier agreeing to do so.
The admission of these in evidence was opposed by Mr van Zyl on the grounds that the affidavit also contained, apart from some statements of facts, a number of subjective opinions and character assessments, particularly regarding the state of relations between Shaik and Zuma as observed by the deponent at the meeting he describes in the affidavit that took place between himself, Shaik and Zuma in the last quarter of 1996 in Shaik‘s Durban apartment. Conjoined to these subjective estimates is a measure of hearsay evidence of Zuma's alleged comments to him about Shaik's helpfulness to Zuma. To the extent that there was hearsay in all this, it could not be said that Wilson's knowledge was personal as required by the legislation relied on. Furthermore, Wilson was also demonstrably in error in a claim made initially to have drafted a particular letter from the chairman of Renong Berhad to Zuma, which error Wilson sought to correct in the second affidavit. So there were several reasons why these affidavits should not be accepted.
But as a final argument, Mr van Zyl urged the fact that Wilson had refused to give evidence, and there was nothing in the State's case to suggest that it was not reasonably practicable to secure his attendance, as was required by section 34(l)(b). That section sets out the circumstances in which evidence of this kind could be accepted in a document and there is nothing in that section to show that it applied to people who were alive but who refused to give evidence. All that appeared from the State case was that Wilson was outside South Africa, and refused to come to this country to give evidence. As that situation was not provided as a circumstance making it permissible to accept documentary statements instead of oral evidence, his statement evidence could not be accepted in this affidavit form.
This argument too, while at first glance it seemed persuasive, likewise does not stand sustained scrutiny.
I do not think for a moment that the mere fact that a document also contains some other information or statements that are not facts, means that the whole document must be excluded and cannot ever be accepted in terms of this legislation. That would defeat the object of the provision. That argument does not take account of the distinction drawn in section 34(1) between "the statement" that contains the fact, and "the document" that contains the statement. The section means, in my view, that if a statement that is admissible in oral evidence is set out in a document, then the document is admissible as evidence of the facts in that statement, provided the conditions of sub-sections (a) and (b) are met. The fact that Wilson's affidavit includes some opinion estimations would not make the statements of fact inadmissible and would not bar acceptance of the document just as if he ventured such opinion evidence while giving oral evidence. Such an inadmissible intrusion of opinion would not render his oral evidence of facts inadmissible. The obvious explanation is that evidence contained in the document to the extent that it is inadmissible is ignored, just as it would be if it were given orally. Nor does the fact that Wilson has been wrong in some of his recollections affect the admissibility of the document. That is a factor that goes to the weight to be attached to any such statement in a document, as is enjoined to be considered by section 35(1) of this particular statute.
Then finally I am unable to follow the argument that section 34(1)(b) does not cover witnesses who refuse to give evidence. That in my view, is to place an unduly narrow and restricted construction on the provision. The section, which is part of a statute designed to make it easier to present evidence than the rigours of the old common law rule on hearsay allowed, require the person who made the statement to be called to give evidence unless he is dead, or too mentally or bodily infirm to do so, or is outside the country and it is not reasonably practicable to secure his attendance. Wilson is plainly outside the country, and unless there is some heretofore unknown practicable way of persuading a Malaysian Court or the government of that country to force him to do so - which there plainly is not - then it seems clear to me that this statement he made must be accepted. It is that sort of situation which falls within the description of "not reasonably practical to secure his attendance". For these reasons then I do not think there is any substance in the argument advanced against admission of these affidavits on the basis presently contended by the State.
Mr Steynberg did not pursue any further, the general argument advanced earlier that these affidavits were also admissible under section 3(l)(c) of the Law of Evidence Amendment Act of 1988, so it is not necessary to consider the State's case further. I am bound to say however that if I had to consider the latter under that provision, then it seems to me that the probative value of Wilson's affidavits is far outweighed by the prejudice that Shaik might suffer by being deprived of the ability to canvass the several aspects of Wilson's statements that were raised in argument. As it is, the affidavits fall within section 34(1) of the Civil Proceedings Evidence Act and they are therefore admissible on that basis. What weight should be attached to them in due course, is another matter.
In conclusion then, the order I make on these items of evidence, is as follows :
1. The documents that are Exh E 25 and 26 and the ancillary typed drafts and translation, and the typed encrypted fax that is E 29 and its translation, are admissible.
2. Of the documents tendered as being seized in the search of the Thomson offices in Paris and the accompanying police reports of those documents, I hold as follows :
(i) the police reports in Exh PP pages 5 - 12; 21 - 25 and 33 - 37 and the report by Mr Chabas to Mr Michel Roger of the 27th February 2001 which is Exh PP 17 - 20 and duplicated at Exh M 7 - 040479 - 83, are inadmissible.
(ii) The remaining document from this source that is still in dispute namely, Exh M 5 040098 - a letter from Thetard to Thomson CSF in Paris, is admissible.
3. The document that is Exh M 5 040100 - 102, the report prepared by Mr E Arruberrena Mr M Roger and copied to Thetard in Pretoria, is admissible.
4. The document that is Exh M 4 030021 - 22#2, a letter written by Acc 1 to J M Pizano on 15th October 1995, is also admissible.
5. Of the documents recovered from the offices of Thales International Limited in Mauritius and from Valmet Limited on the same day and the same occasion my conclusion is as fallows :
(a) Exh M 6 040400 A and B, and
(b) Exh O pages 116 - 122, are both ruled as inadmissible.
(ii) The other documents being :
(a) M 6 040390 which is also Exh TT 1 and 2,
(b) M 6 040414, and
(c) Exh 0 pages 37 - 43, which is also Exh M 20 110061 - 64, are all admissible; and finally
6. The affidavits of Mr David Wilson, made on 29th October 2003 and the 3rd June 2004 and the accompanying letters that are attached to those as exhibits, are admissible.
Those are my decisions on the admissibility of the documents in dispute, and those that I conclude are admissible will be so admitted.