In the High Court of South Africa
(Durban and Coast Local Division)
Case No. : CC358/05
In the matter between :
1. Jacob Gedleyihlekisa Zuma
2. Thint Holding (Southern Africa) (Pty) Ltd (formerly known as Thomson-CSF Holding (Southern Africa) (Pty) Ltd) (hereinafter also referred to as Thomson Holdings) (as represented by Pierre Jean-Marie Robert Moynot)
3. Thint (Pty) Ltd (formerly known as Thomson-CSF (Pty) Ltd) (hereinafter also referred to as Thomson (Pty)) (as represented by Pierre Jean-Marie Robert Moynot)
(hereinafter also referred to as the accused)
In Re: Application by the State for the adjournment of the proceedings
in terms of section 168 of Act No 51 of 1977
I, the undersigned, JOHAN DU PLOOY, do hereby make oath and state:
I am a Senior Special Investigator employed at the Directorate of Special Operations (“DSO”), Promat Building, corner Cresswell and Moreleta Streets, Silverton, Pretoria.
a) I am duly authorized to make this affidavit and the facts deposed to below are true and correct and fall within my personal knowledge unless the context indicates the contrary or it is expressly stated otherwise.
b) Where legal submissions are made, I do so under legal advice.
I am the investigating officer in this matter. The State is applying for postponement of the trial. In this regard, I am advised that:
3.1 In terms of section 168 of the Criminal Procedure Act, No. 51 0f 1977, a Court may adjourn proceedings ’If…[it] deems it necessary or expedient” to do so. Thus the Court is vested with a judicial discretion whether to grant an adjournment or not. In exercising such a discretion the Court is required to bear in mind two competing interests;
(a) that it is in the interest of society and the State that guilty persons should be duly convicted and not escape justice by reason of any oversight or mistake which can be remedied. Thus any ruling that the Court makes in this regard must be aimed at expediting the trial, and not aborting it, and
(b) that an accused person, deemed to be innocent, is entitled to be tried with expedition once indicted.
The right of an accused to a speedy trial must therefore be balanced against the interests of the State and society in bringing suspected criminals to book.
3.2 The Court will have regard inter alia to the following factors in determining whether to allow the adjournment of this matter as requested, alternatively whether such an adjournment would be unreasonable:
3.2.1 The length of the delay from the commission of the crime until the commencement of the trial;
3.2.2 The nature of the case;
3.2.3 The reasons for the delay, including systematic delay; and
3.2.4 The nature of the prejudice, if any, suffered by an accused.
3.3 In this affidavit I will deal with the various factors mentioned above and in particular I will explain why it is that a postponement of the trial has become unavoidable. Furthermore, I will show that the State itself has not been the cause of any unreasonable delay in the commencement of the trial. Finally, I will address the question as to whether the present accused will be prejudiced by a delay in commencing with the trial.
3.4 I consider it necessary to outline first the background to the present prosecution and to describe certain events that have resulted in the inevitable necessity to postpone the trial on 31 July 2006.
A. THE INVESTIGATION
On 6 November 2000 the Director of the then Investigating Directorate: Serious Economic Offences instituted a preparatory investigation in terms of section 28(13) of the National Prosecuting Authority Act, Act No 32 of 1998. Section 28(13) empowers the Investigating Director to hear evidence in order to enable him to determine if there are reasonable grounds to conduct an investigation in terms of section 28(1)(a) of the Act. The preparatory investigation, in summary, related to allegations of corruption and/or fraud in connection with the acquisition of armaments at the Department of Defence in respect of negotiations and or contracts concluded with regard to the purchase of corvettes, submarines, light utility helicopters, maritime helicopters, lead in fighter trainers and advanced light fighter aircraft.
On 24 August 2001 the Investigating Director instituted an investigation contemplated in terms of section 28(1)(a) of the Act. The terms of the investigation included the suspected commission of offences of fraud and/or corruption in contravention of the Corruption Act, 94 of 1992, or the attempted commission of these offences, arising out of the armaments acquisition for the Department of Defence, involving the prime bidders/contractors in terms of which certain contracts and/or sub-contractors for the supply of armaments were concluded and more specifically in respect of the following contracts and sub-contracts :
(i) The German Frigate Consortium (between African Defence Systems (Pty) Ltd, Thyssen Rheinstahl Technik GmbH, Blohm & Voss GmbH, Howaldtswerke Deutsche Weft AG and Thomson CSF NCS France) as prime bidder/contractor for the supply of corvettes for the Corvette programme.
(ii) African Defence Systems (Pty) Ltd as sub-contractor for the German Frigate Consortium for the supply of the corvette combat suite for the Corvette Programme, including the undue payment to Futuristic Business Solutions (Pty) Ltd for the supply of an Integrated Logistic Support Services and/or the solicitation/payment/agreement of undue payments involving entities directly or indirectly linked to African Defence Systems (Pty) Ltd, Futuristic Business Solutions (Pty) Ltd and/or Thomson CSF (The further specified contracts which are mentioned in my designation are not strictly relevant to this affidavit.)
On 22 October 2002 the investigation was extended to include:
“The suspected commission of fraud and/or corruption in contravention of the Corruption Act, No. 94 of 1992, or the attempted commission of these offences, arising out of:
(i) payments to or on behalf of or for the benefit of Jacob Zuma by Schabir Shaik and/or the Nkobi group of companies and/or the Thomson/Thales group of companies; and
(ii) the protection of, and/or wielding of influence for, and/or using public office to unduly benefit the private business interests of Schabir Shaik and/or the Nkobi group of companies and/or the Thomson/Thales group of companies by Jacob Zuma.
B. THE ARRAIGNMENT OF THE ACCUSED
As a result of the abovementioned investigations, Schabir Shaik and 11 related corporate entities were arraigned in the High Court, Durban, on various charges of corruption, fraud and money laundering. The trial (hereinafter referred to as “the Shaik case”) commenced on 11 October 2004 and it was concluded on 8 June 2005.
The company THINT (Pty) Ltd (formerly Thomson CSF (Pty) Ltd) was arraigned as Accused 11 in the abovementioned case, but the charges against it were withdrawn at the commencement of the trial in terms of an agreement between its legal representatives and the then National Director of Public Prosecutions. The precise terms of this agreement are not relevant for the purposes of this application, save to note that the withdrawal of the charges was predicated upon the delivery of a certain affidavit by one Alain Thetard, formerly a director of Thomson CSF (Pty) Ltd, and not upon any consideration of the strength or otherwise of the case against it. It should be mentioned that the agreement related only to the Shaik trial and did not amount to a permanent indemnity from prosecution. Furthermore, it is recorded that the State alleges that Thomson CSF (Pty) Ltd failed to comply with, alternatively breached, the terms of the agreement.
The court convicted and sentenced Schabir Shaik to a term of 15 years imprisonment in respect of each of the corruption charges (Counts 1 and 3) and 3 years in respect of the fraud charge (Count 2). The sentences on Counts 2 and 3 were ordered to run concurrently with the sentence on Count 1. Several of the corporate accused were also convicted and sentenced to pay substantial fines or suspended fines.
Shaik’s convictions on counts 2 and 3 are currently pending an appeal to the Supreme Court of Appeal. The Court has also requested to hear oral argument on whether leave to appeal should be granted in respect of the convictions on count 1 and the sentences on counts 1 and 3. Several of the corporate accused have also been granted leave to appeal, the details of which are not important for present purposes. The appeal has been set down for argument from 21 to 25 August 2006. I am advised that there is a good prospect that a judgment will be handed down during the fourth court term of 2006.
Subsequent to the successful conclusion of the Shaik case, the National Director of Public Prosecutions decided on 20 June 2005 to prosecute Jacob Zuma on at least two counts of corruption in contravention of section 1(1)(b) of the Corruption Act, 94 of 1992.
On 8 August 2005, the investigation was further extended to include:
“The suspected commission or attempted commission of the following offences:
(i) Fraud pertaining to declarations made by Jacob Gedleyihlekisa Zuma to the following persons or entities; the Registrar of Parliamentary Members’ interests, the Secretary for the Cabinet of the Government of South Africa, the South African Revenue Services and/or persons or entities associated with the abovementioned persons or entities, in respect of benefits received from Schabir Shaik and/or companies associated with Schabir Shaik.
(ii) Contraventions of the Income Tax Act, No 58 of 1962, in respect of the declarations referred to above.
By Jacob Gedleyihlekisa Zuma.”
Jacob Zuma appeared in the Durban Magistrates’ Court on 29 June 2005 where the matter was postponed to the 11 October 2005 for further investigation, including obtaining the forensic audit report and outstanding financial records. Prior to the this date, the State indicated by letter to Accused No 1 that it intended to apply for an adjournment of the case for further investigation and for the preparation of the indictment. A copy of the letter is attached as “JDP 1”. The main reason for this intended adjournment was that the large volume of documents seized during the searches of 18 August 2005 still needed to be properly perused, analyzed and incorporated into the forensic auditor’s report.
The State proposed to endeavour to supply the indictment by the end of March 2006, as part of the broader agreement to adjourn the matter in the Magistrate’s Court. However, the defence for Accused No. 1, led by the present counsel for Accused No. 2 and 3, rejected the proposal and indicated that it would oppose such postponement. (See “JDP 2”) This prompted the State to apply for the matter to be transferred to the High Court in terms of section 75 of the Criminal Procedure Act prior to serving an indictment. As appears from the letter written and faxed to Messrs Hulley and Associates on 7 October 2005 (“JDP 3” – the ostensible date of 7 September is incorrect, as is apparent from the contents and the fax confirmation date), this decision was in fact taken only once it became apparent that Accused No 1 would not agree to the postponement of the matter in the magistrate’s court and that argument would have to be heard in this regard. It was felt that, in light of the seriousness of the matter, such arguments should be heard by the High Court, where the matter would ultimately be tried.
At the appearance of 11 October 2005 at the Durban Magistrate’s Court, after the State’s request to refer the matter to the High Court in terms of section 75 of the Criminal Procedure Act was opposed, an agreement was eventually reached between the State and the defence for Accused No 1. The broad terms of the agreement are apparent from the written record of the proceedings in the Magistrate’s Court (attached hereto as “JDP 4”), and the prosecution’s letter to Messrs Hulley and Associates dated 3 November 2005 (“JDP 5”), and may be summarised as follows:
15.1 The matter would be postponed to 12 November 2005 to allow the State to serve a “provisional indictment” on the accused. This provisional indictment would be based on the evidence available to the State as at the conclusion of the Shaik case.
15.2 The State indicated that it was in the process of going through some 93,000 documents that were confiscated during the search and seizure operation and intimated that the information gleaned from these documents might very well result in the charges or the facts averred in the indictment being amended. It was understood that the State would continue with further investigation and amend the indictment in accordance with any new evidence at its disposal and in terms of the relevant legislation should the need arise. It was agreed that the State would endeavour to deliver such amended indictment to the defence by the end of March 2006.
15.3 In the meanwhile, a High Court date would be arranged in consultation with the Judge President.
15.4 On 12 November 2005 the matter would be transferred to the High Court for trial on the date arranged.
A meeting between the State, the defence team for Accused No 1 and the Judge President was subsequently held. I am informed that it was agreed that a suitable trial date would be 31 July 2006 and that provision would be made for the trial to run for at least 4 months.
The National Director of Public Prosecutions later decided also to prosecute Accused numbers 2 and 3, who are the South African Thomson/Thales companies, to wit THINT Holding (Southern Africa) (Pty) Ltd (previously known as Thomson-CSF Holding (Southern Africa) (Pty) Ltd.) and THINT (Pty) Ltd (previously known as Thomson-CSF (Pty) Ltd). On 4 November 2005 the provisional indictment was served on Accused 2 and 3 at their offices in Brooklyn, Pretoria and they were summonsed for trial in the Durban High Court for trial on 31 July 2006. I am advised that it was also mentioned at the abovementioned meeting with the Judge President that there was a prospect that the Accused Nos 2 and 3 might be added as accused and counsel representing Accused No 1 indicated that he also represented these companies and that the proposed dates would also be suitable to them. On 12 November 2005 the provisional indictment was served on the First Accused at the Durban Magistrate’s Court where the matter was transferred to the Durban High Court for trial on the same date, which had previously been arranged by agreement with the Judge President.
C. THE NEED FOR FURTHER INVESTIGATION
The investigations, preceding Shaik’s trial in 2004, into the alleged corrupt payments by Shaik and his companies to Zuma had only covered the period up to November 2002. In his evidence in court in 2005, however, Shaik testified that the payments, which he claimed (falsely, in the opinion of the trial court) to be in the nature of loans, had continued long after that date and indeed were still continuing. He also claimed that there had been substantial repayments by Zuma. In light of the above and a number of other factors which need not be repeated for the purposes of this application, it was considered vital that fresh evidence be obtained regarding inter alia the financial dealings between Shaik and Zuma to date. To this end, on 18 August 2005 a search and seizure operation was conducted during which a number of premises belonging to Zuma and persons closely associated with him were searched and a substantial number of documents and computer data were seized. These searches included also the business premises of Accused Nos 2 and 3 and the residential premises of their director, Pierre Moynot. The effects of these searches and the subsequent legal challenges that were brought against them will be dealt with in more detail below.
In any investigation, more especially in a complex commercial investigation such as the present, as the State case unfolds numerous aspects arise which require investigation. In the present case, important new aspects emerged during Shaik’s defence (such as the alleged existence of a so-called “revolving loan agreement” between Shaik and Zuma, to name but one). The investigation thus remains current. The investigation includes Zuma’s complicity in the alleged offences and also that of the Thomson/Thales group of companies, as reflected in the ambit of the investigation declared in terms of section 28 of the Act as described above.
Evidence which may affect the charges ultimately preferred against the respective accused, and the factual basis for the allegations which support such charges, include:
20.1 Evidence relating to any further payments that may have arisen after the period previously investigated by Shaik, Thomson/Thales/THINT, or any other person acting on their behalf;
20.2 Evidence of any repayments by Zuma that may have occurred after the period previously investigated, alternatively the absence of such repayments;
20.3 Any other evidence regarding the bribe agreement or payments that may be obtained, including any relevant evidence relating to the charges of corruption that may not have been discovered previously because the relevant premises were not searched, or because the relevant evidence was not, at the time of the searches, at the relevant premises.
20.4 Further evidence relating to the funding provided to Zuma by Kogl, Fakude-Nkuna and Reddy, including evidence relating to any repayments or lack thereof by Zuma and including any relevant evidence that may not have been discovered previously because the relevant premises were not searched, or because the relevant evidence was not, at the time of the searches, at the relevant premises.
D. POSSIBLE EVENTS THAT COULD INFLUENCE THE FINAL INDICTMENT
Schabir Shaik admitted that a meeting between him, Zuma and Thetard took place, as reflected in the encrypted fax, (although this was allegedly on 10 March 2000 and not 11 March 2000 as alleged by the State) and that the other meetings mentioned in the fax had indeed occurred. He contended, however, that the subject of the meetings was a request that Thomson should make an innocent donation to the Jacob Zuma Education Trust.
Zuma is on record as stating that he did not meet Thetard and Shaik on 11 March 2000 as alleged in the fax. He denies that the contents of the fax are true. Zuma makes no mention of a meeting between himself, Shaik and Thetard the previous day, or at any other time, during which such request for a donation to the Jacob Zuma Education Trust was discussed, as alleged by Shaik at his trial. Zuma concedes that he might have met representatives of the Thomson/Thales group in Paris and/or in South Africa during the period 1997 to date, but contends that only general matters relating to his official portfolios would have been discussed.
This aspect requires further investigation, which might result in the amendment to the structure and form of the indictment, especially if evidence can be found that a donation was made and/or discussed. To this end, Zuma’s official diary for the relevant period may shed considerable light on the date of the meeting, the subject of the meeting and Zuma’s professed lack of recollection thereof. This (electronic) diary was discovered during the search of the Union Buildings, but the prosecution has not had access to it, since it is alleged to be classified and has been sealed and kept in the possession of the Presidency pending the determination of the prosecution’s right to access thereto. This issue can only be addressed once the appeal in respect of the Zuma/Hulley searches, which also included this premises, has been finalized, alternatively settled.
Some witnesses who testified in the Shaik trial have to be interviewed in respect of new documents that were seized during the last search and seizure operation. In other instances, new witnesses will have to be interviewed. Further affidavits have been obtained and must still be obtained from the above. In some instances, however, affidavits could not be obtained until the search applications were finalized or settled, as it was not certain whether the State would be able to rely on the documents in question. Such evidence may in turn have a bearing on the indictment and summary of facts.
The last payment by Shaik/Nkobi to Zuma alleged in respect of the corruption on Count 1 in the Shaik trial was dated 30 September 2002. This was as a result of the information available to the State at that time that had been obtained through the original searches in 2001 and supplemented by financial records subpoenaed from financial institutions. As mentioned above, Shaik testified that his payments to Zuma in fact continued after 30 September 2002 and were still continuing to date. He refused, however, to provide any details or documentation concerning any payments after 30 September 2002.
The aforesaid serves as one of the main reasons why the investigation had to continue. Forensic auditors have been mandated by the State, as part of their brief, inter alia, to provide as complete an analysis as possible of the financial position of: · Shaik and the Nkobi companies; and · Zuma. Their wider mandate also includes an analysis of matters relevant to the broad investigation, which in turn requires an analysis of all the relevant new evidentiary material.
I am advised by the forensic auditors that their preliminary perusal of the evidential material seized during the latest search and seizure operation has revealed that a significant proportion of such documentation is directly relevant to its investigation. They were not, however, in a position to draft the forensic accounting report until such time as they had certainty as to the evidential material upon which they could base their opinions. This could not be done until the various applications described below had been finalised.
The ability of Shaik and his companies to afford the payments to Zuma, on the one hand, and Zuma’s need to receive the payments on the other, are important considerations in determining the nature and intent of the payments, including whether they were corruptly given and received. Similarly, Zuma’s ability to repay any of the money he received is also an indication of whether the payments were loans, as alleged by Shaik, or rather bribes as the State contends. Whatever the position, a complete, accurate and up to date analysis of the payments and the surrounding circumstances is necessary to determine whether or not the payments are “benefits” for the purposes of the Corruption Act.
The investigation has also revealed that Zuma had received significant funding at various stages from the following persons or entities: · Jurgen Kogl and his company Cay Nominees (Pty) Ltd; · Nora Fakude-Nkuna and her company Bohlabela Wheels (Pty) Ltd; and · Vivian Reddy
In accordance with the above, it is necessary, for example, to establish the nature and true source of payments that Kogl made to Zuma. The evidential material discovered as a result of the last searches is relevant in assisting this enquiry. Kogl’s previously obtained affidavits do not adequately address this issue. On the contrary, from the new documents obtained there is reason to believe that he may in fact have withheld material information.
On 18 August 2005 search and seizure operations were conducted at 22 premises where 93000 documents were confiscated. These search and seizure operations and the various applications launched to contest their legality are discussed hereunder.
E. APPLICATIONS TO SET ASIDE SEARCH WARRANTS
On 12, 15, 18 and 26 August 2005 respectively the Honourable Judge President of the Transvaal Provincial Division, Mr Justice Ngoepe, signed some 22 search warrants authorizing the Directorate Special Operations to conduct search and seizure operations at various premises including Union Building, the residences of the first Accused, the Law Practices of two attorneys associated with him, the business premises of Accused 2 and 3 and the residential address of their director, Mr Moynot. The majority of these searches were conducted on 18 August 2005 and various items, including computers, were seized.
Several of these search orders have since been challenged by way of various court applications seeking to set the warrants aside and have the searches declared unlawful.
The status of these court applications is discussed seriatim hereunder:
33.1 JULEKHA MAHOMED v NDPP, DSO On 26 August 2005, Julekha Mahomed, an attorney who has acted for Accused No 1 from time to time, launched an application to have the search warrants pertaining to her practice and residence set aside. This matter was heard in the Johannesburg High Court on 9 September 2005. Pursuant to this application, the Court set aside the search warrants concerned. Leave to appeal to the Supreme Court of Appeal (“SCA”) was however granted on 24 October 2005 and this appeal is still pending. The appeal record was lodged with the Registrar of the SCA on 22 March 2006 and an extension has been granted to file heads of argument by 23 August 2006. No date has yet been fixed for the hearing of this appeal.
The State has submitted certain settlement proposals to Ms Mahomed’s attorneys, to which a final response has not yet been received. The State is hopeful that this matter may be settled expeditiously, but depending on the response, the State will still have to weigh its options regarding the necessity to proceed with the appeal. The matter has not, therefore, been finalized.
It should also be mentioned that even if a settlement is reached, I am advised that it will take some time to identify which of the documents seized are legitimately subject to attorney client privilege and which are not. Only then will the State be able to proceed with the analysis of the documents.
33.2 ZUMA, HULLEY v NDPP, DSO This application was filed on 6 October 2005 and heard in the Durban and Coast Local Division. Judgment was delivered on 15 February 2006. The Court set aside the search warrants pertaining to Mr Zuma’s former offices at the Union Building, his various residences and the offices of his attorney, Mr Hulley. Leave to appeal was noted on 15 February 2006 and a formal notice for leave to appeal was served and filed on 28 February 2006. Negotiations are currently underway to settle this matter by way of agreement and thereby allowing the State access to the documents. There is a strong likelihood that a settlement will be reached and the need to appeal will fall away. Once again, however, the State will have to weigh its options in the light of the response. The matter has not, therefore, been finalized.
33.3 JURGEN KOGL, CAY NOMINEES v NDPP, DSO This application was filed on 17 November 2005. The State has filed its answering affidavits and is awaiting the applicants to file replying affidavits and to set the matter down. The State Attorney has been requested to liaise with the Applicant’s attorney with a view to bringing the matter to a conclusion. Therefore, this matter is also not yet finalized.
33.4 THINT HOLDINGS/ (PTY) LTD, MR & MS MOYNOT v NDPP, DSO Accused Nos 2 and 3 only filed their application on 5 January 2006, some 20 weeks after the searches in question. The matter was argued on 29 June 2006 and judgment was delivered on 4 July 2006. The Court upheld the warrant in respect of the premises of Thint and dismissed the application with costs. Thint has indicated that it is contemplating an appeal. Subsequent to the judgment, correspondence has been exchanged between the parties regarding Thint’s claim that some of the documents or computer files contained on the computer used by a certain employee of Thint, one Govender, are privileged. Further documents seized during the search in respect of which privilege was claimed have been lodged with the Registrar of the TPD. These aspects have not yet been finalized. Thint’s last letter dated 13 July, which indicates that they are still not in a position to indicate precisely in respect of what documents privilege is claimed, is attached as “JDP 6 ”. It is apparent that they will not be in a position for some time still to advise us precisely which documents are alleged to be privileged. The result is that the issue of precisely what documents the State is entitled to rely upon has still not been resolved.
33.5 SHABIR SHAIK, NKOBI HOLDINGS (PTY) LTD v NDPP, DSO The legality of the search warrants executed at Shaiks residential premises and the Nkobi offices is being attacked on the same grounds as in the above- mentioned matters. The filing of the papers has closed but the applicants have yet to set the matter down for hearing. It seems that they may be awaiting the outcome of the abovementioned appeals to the SCA before deciding whether to pursue the application. It seems that this application is not likely to have any impact on the trial.
F. THE REQUESTS FOR FURTHER PARTICULARS
The State received a request for further particulars from Accused nos. 2 and 3 on 24 March 2006, and immediately thereafter commenced with steps to provide them with all the evidential material in its possession, as requested. Obviously, the documentation that was then the subject of litigation could not be provided. The request also included particulars pertaining to the indictment. The State indicated that such particulars could not be supplied, because the final indictment was being delayed, inter alia, by the various applications that had been brought by the accused and other parties. Accused Nos. 2 and 3 brought an application in the High Court to compel the State to furnish these further particulars. This application was argued on 12 May 2006 and dismissed on 15 May 2006. A copy of the judgment of Mr Justice Levinsohn is attached as “JDP 7”
Accused No. 1 has only recently, on 12 July 2006, also submitted an application for further particulars. The State has accordingly furnished his defence team with an electronic copy of all the evidential material to date, excluding those documents to which the State has not yet had access due to claims of privilege. The State is unable to answer the request for further particulars pertaining to the indictment, for the reasons which the State relied upon in the similar Thint application referred to above. At this stage, as will be indicated below, the main factors delaying such further particulars are that the final indictment cannot yet be finalized as the forensic accountants’ report is not finished, once again due to the impediments occasioned by the accused’s various applications relating to the searches.
As pointed above, a settlement regarding the seized documents is nearing finalization and the Thint application regarding the searches was decided in favour of the State. On the strength of these considerations, the State’s forensic accountants were instructed on 23 May 2006 to commence with the finalization of the forensic report as soon as possible, now using all the available documentation in accordance with the agreements reached in principle with the legal representatives of Mahomed and Zuma. Following the judgment in the Thint application, they were also instructed to commence analysis of the Thint documents, with the exception of those in respect of which privilege has been claimed, including Govender’s computer. I am informed that the report is at an advanced stage of preparation and should be ready as soon as possible after 31 July 2006.
The State undertakes to provide the outstanding further particulars as soon as the forensic accounting report and the indictment are finalized. It should be borne in mind that the forensic report is a complex and voluminous document, based on an appraisal of tens of thousands of documents and other computer information. The report in the Shaik matter was some 250 pages long and supported by supplementary reports and twenty lever–arch files of exhibits, which were in turn culled from the plethora of documents and computer data. It is expected that the report in the present matter will be even longer, and the exhibit files even more voluminous. It is obvious from all of the above that the body of documents that is being traversed is greater than in the Shaik matter, as it has been supplemented by the further searches and the other further ongoing investigation.
It should also be mentioned in this regard that the process of producing the forensic report, once it has been finalized in principle, is itself complex and time-consuming. It must be reviewed and edited. The exhibit files of thousands of documents must be compiled, reviewed and copied. Evidential material obtained previously must also be revisited, since certain documents subsequently seized shed new light on the interpretation to be placed on such earlier material. Time must also be allowed for the prosecution team to incorporate the forensic report’s findings into the indictment and summary of facts. The length of this process is also exacerbated by the complexity and volume of the report and the evidentiary material on which it is based.
III. THE NATURE OF THE CASE
It is clear from the provisional indictment and from the facts set out above that this is an exceptionally serious and complex case. The corruption of a government minister, let alone the Deputy President of the country, is in itself a matter of the utmost gravity. The fact that such corruption involved a multi billion Rand arms procurement company and an international arms company further compounds its seriousness. When one factors in the unprecedented public and political interest, I believe it can be stated without hyperbole that this is possibly one of the most serious and significant cases in the history of our democracy.
The complexity of the investigation of the offence and the preparations for trial can also hardly be overstated. The sheer volume of the documentary evidence described above presents in itself a challenge that must be almost unique in the history of criminal prosecutions.
I am advised that in these circumstances the interests of justice demand that all parties should have an adequate opportunity to properly prepare themselves for trial and that a court would be slow to refuse a bona fide request for an adjournment for this purpose.
IV. THE LENGTH OF THE DELAY
It is apparent from the State’s provisional indictments and the facts set out above that the offences in question commenced prior to October 1995. The broad investigation into possible offence connected to the arms procurement process commenced in November 2000, but it was only in October 2002 that the investigation was extended to include the all the offences for which the present accused are charged. However, it is also clear that the offences in question were ongoing and the evidence at the State’s disposal indicates that, in respect of counts 1 and 2 of the provisional indictment, they continued until at least July 2005. As pointed out in paragraph 12 above, the investigation was extended again on 8 August 2005 as a result of the information that emerged during the Shaik trial. The current investigation is thus not old.
Nor has the period for which the matter has been pending before court been unduly long:
43.1 Accused No. 1 appeared in the Magistrate’s Court for the first time on 29 June 2005 and the case was postponed to 11 October 2005 for further investigation. On 11 October 2005 it was postponed to 12 November 2005 for further investigation and the provisional indictment. On 12 November 2005 Accused No. 1 was then served with a provisional indictment and the case was then transferred to the High court for further investigation and trial. He has therefore made 3 appearances in court to date. The appearance in the High Court on 31 July 2006 will be the first appearance in the High Court and the first time the matter has been set down for trial.
43.2 Accused Nos. 2 and 3 were served with the indictment only on 4 November 2005 and they will be making their first court appearance on 31 July 2005.
43.3 I am advised that the delay of approximately 18 months between the commission of the offence and the proposed adjournment date is not unusual and certainly not unreasonable in a matter of such seriousness and complexity. Such a delay is in fact typical of the systemic delay in bringing a complex matter to trial in the High Court in this division. It will therefore be submitted that there was no unreasonable delay in bringing the matter to trial.
IV. THE REASONS FOR THE DELAY
A. THE APPLICATIONS BROUGHT BY THE ACCUSED AND OTHERS
I have outlined in some detail the difficulties encountered in finalizing the investigations as a result of the various applications described above. This is the proximate cause of the State’s inability to finalise the investigation in time to commence the trial on 31 July as agreed. These delays were entirely outside the control of the State.
While it is of course the accuseds’ right to challenge the legality of the searches conducted on their premises, I am advised that this was not the only remedy available to them. I am advised that a more suitable remedy in the circumstances would have been simply to challenge the admissibility of the evidence seized during the trial on the basis that it was unlawfully or unconstitutionally obtained. I am advised that such a course of action would not have had the effect described hereunder of delaying the finalization of the investigation and hence the trial.
The State has done everything in its power to expedite the further investigation that all agreed was to be conducted. Unfortunately, we have been held at bay by the search warrant applications described above which have, in summary, had the following delaying effects on the investigation: · The forensic auditors have been unable to commence writing their report until the matters were finalized or settled since they did not know which material they could rely on in arriving at their conclusions. · Certain documents remain sealed and the State has not even been able to begin the analysis of the documents. · The State’s computer forensic experts were not able to begin the reconstruction and analysis of certain of the hard drives seized that were the subject of litigation and/or claims of privilege. · A considerable amount of the prosecution’s time and resources has been spent on the preparation and filing of opposing papers in the various matters mentioned above, which has had the effect of further delaying the finalization of other outstanding investigation. · Consequently, it has been impossible to settle the indictment as, inter alia, the summary of substantial facts on which the State will rely to prove the charges cannot be determined with certainty until finality was reached with regard to the above mentioned applications. Inasmuch as the State has sought to set out its case in considerable detail in the preamble to the provisional indictment and in its summary of substantial facts, so as to facilitate the understanding of the accused and the trial court of the charges to be preferred, it is submitted that the outcome of the abovementioned applications and hence the evidential material at the State’s disposal will materially affect the factual basis for the charges presently preferred and may well form the basis for further charges.
The circumstances in which the trial date of 31 July was agreed upon have been fully set out in paragraphs 13 to 16 above. From the State’s perspective, the crucial condition of this agreement (as set out in paragraph 15 above) was that the indictment that was to be served on 12 November 2005 was regarded by all parties as “provisional”, in the sense that the parties acknowledged that the State would be entitled to continue with its investigations and that the result of this was that the State would in due course supply a ‘final’ indictment containing amendment and possibly new charges occasioned by the new evidence at its disposal.
The State indicated that it would endeavour to provide such ”final” indictment by the end of March 2006, which, in the circumstances that prevailed at the time of this agreement, was estimated to be a reasonable period for the completion of outstanding investigations.
47.1 At the time of this agreement, the Mahomed application had been finalized and was pending appeal. The Hulley/Zuma application had been filed and papers were being drafted. However, the applications by Shaik/Nkobi, Kogl and Thint had not yet commenced.
47.2 It was anticipated by the State (perhaps over-optimistically in retrospect) that the litigation could be finalized in time to deliver the “final” indictment by the end of March as envisaged. Unfortunately, the systemic delays in the finalization of the various applications and the resultant appeals prevented this.
47.3 The forensic auditors’ report would also have been ready by approximately April 2006 for delivery to the Accused had the completion of the forensic investigation not been prevented by the search warrant applications. The parties would then all have been ready to proceed with the trial on 31 July 2006 and it would not have been necessary to argue about any postponements for further investigation before any court. It was on this basis that the State agreed to the trial date of 31 July 2006.
The State has had little control in respect of the various applications concerning the search warrants and their effect on the further investigation. The State had in correspondence with the defence already warned that court applications relating to the searches would invariably lead to delays. (See paragraph 2. (viii) of “JDP 1”) The State has therefore effectively been prevented from fulfilling its undertaking to supply a final indictment by the end of March and from commencing the prosecution on the date agreed upon.
However, as pointed out in paragraph 33 above, the Thint application has now been finalized, barring any appeal, and the other applications appear likely to be settled by way of agreement. The stage has now been reached where the vast majority of the investigation has been finalized, save that which is dependant upon the outcome of the various negotiations described above. In the circumstances the State is confident that, barring any actions taken by the defence or others that may have the effect of further delaying the investigations or the trial, we will be ready to commence the trial on the date suggested.
B. THE INTERVENING TRIAL OF SHAIK AND OTHERS
In August 2003, the then National Director of Public Prosecutions decided that, while there was a reasonable prospect of a successful prosecution against Shaik, the Nkobi group and Thint, the case against Accused No 1 did not at that time reach the required standard. The decision was therefore taken to charge the former, but not the latter. It was noted at the time, however, that this decision would be reviewed at the conclusion of the Shaik trial. In the result, the efforts of the State from that moment were perforce concentrated on the investigation and prosecution of the accused in that matter. In respect of Accused No 2, the charges against it were withdrawn by agreement and for reasons that were convenient to the State and presumably also the accused. It was only on the successful conclusion of that matter in July 2005 that the prosecution again had both the reason and the capacity to once again turn its attention to the alleged involvement of the present accused.
C. THE SHAIK APPEAL
As mentioned above, the appeal in respect of the conviction and sentence of Shaik and the related corporate accused has been scheduled for hearing from 21 to 25 August. This has two important effects on the commencement of the present trial:
51.1 Firstly, the prosecution team seized with this matter is also involved in the Shaik appeal. Even if this trial were to commence on 31 July 2006, the case would not be able to go any distance, as the prosecution team would need to devote some time to the preparation of the very voluminous appeal, the record of which exceeds 8000 pages. I am advised that it is undesirable that the trial should take place in a piecemeal fashion. Once the trial starts, it must proceed uninterrupted for logistical reasons.
51.2 The second issue is the fact that the appeal concerns a great number of the issues that will be traversed in the present trial, I am advised that it would be desirable to have many of these issues authoritatively decided prior to the commencement of this trial. The outcome of this appeal will in all likelihood influence both the form and content of the indictment and the further conduct of this matter.
51.3 While this might not in itself be sufficient reason to postpone the matter, it is submitted that in conjunction with the various factors dealt with above, the interests of justice would best be served by adjourning the trial to a suitable future date. Allowing for the time required by the appeal court to deliver its judgment, I am advised that a date this year would be untenable.
D. THE APPLICATION FOR THE ISSUING OF A LETTER OF REQUEST TO MAURITIUS
In December 2005 the State made an application, on notice to the accused, for the issuing of a letter of request to Mauritius for the delivery of certain highly relevant original documents seized during the search of the local Thomson/Thales offices. This application was opposed by Accused Nos 2 and 3 on the grounds, inter alia, that this matter fell to be decided by the trial judge. It is common cause that the Honourable Judge President has declined to announce the trial judge prior to the trial date of 31 July.
The result of this is that the State has, for reasons entirely outside its control, been unable to secure possession of the original documents in question. These are essential to the State’s case, since Accused Nos 2 and 3 have indicated that they will not be prepared to agree to the admission of copies of the documents, as was done in the Shaik trial.
The State will therefore be obliged to pursue this application before the trial judge on 31 July or as soon thereafter as the matter may be heard. I am advised that, if the State’s application for the issuing of a letter of request is granted, this will almost inevitably delay the trial. I am advised that requests of this nature for international legal assistance are notoriously lengthy processes and that this could possibly considerably delay the conclusion of the State case It should also be mentioned that an injunction has been obtained by the local Thomson/Thales company in Mauritius that will require the permission of the court there before the Mauritian authorities will be able to release the documents sought, which may further delay matters. In the circumstances, an adjournment to 2007 will enable the State to pursue this matter prior to the commencement of the trial and will in all probability ultimately expedite the finalization of the trial.
V. PREJUDICE TO THE ACCUSED
I am advised that the type of prejudice that will weigh most heavily with the court in determining whether to allow or refuse an adjournment is trial-related prejudice. I am advised in this regard that whatever trial prejudice the Accused may presently be experiencing may be adequately addressed by allowing them a reasonable opportunity to finalise their trial preparations once the final indictment and all outstanding documents have been delivered. In this regard it should be noted that the State has already indicated in a letter attached as “JDP 8” that the trial will in all probability not be able to proceed as planned on 31 July 2006, due to factors outside the State’s control. The State then suggested that the trial be adjourned to February 2007, in the interests of settling the matter. In determining a suitable trial date, the preparation requirements of all the accused were taken into account, as things stood at that date. As things stand at present, however, it would appear that even this date would appear optimistic.
Insofar as it may be alleged that the accused may suffer personal or non-trial-related prejudice due to the postponement of the trial, I am advised that such prejudice must unfortunately perforce submit to the interests of justice in ensuring that a case of this nature is properly investigated and prosecuted and that all parties are afforded the necessary opportunity to adequately prepare.
The State has now delivered a substantial volume of documents that will no doubt provide the defence with sufficient information to continue their preparations for the foreseeable future. In the light of the volume and complexity of documents concerned, in particular the forensic auditors’ report, I am advised that it may reasonably be expected that a considerable time will be required by the defence to prepare for the trial. As a guideline, the defence in the Shaik trial required at least 3 months from the date of receipt of the forensic auditors’ report to prepare for trial.
For all the reasons described above, I am advised that it will not be practically possible to commence the trial before the end of this year. I am accordingly advised that a suitable date for the commencement of the trial would be in the first half of 2007.
The contents of this declaration are true to the best of my knowledge and belief. I read this statement before I signed it. I know and understand the contents of this declaration. I have no objection to taking the prescribed oath. I consider the prescribed oath to be binding on my conscience.
____________________________ JOHAN DU PLOOY
I certify that the above statement was taken by me and that the deponent has acknowledged that she knows and understands the content of this statement. This statement was sworn to before me and that the deponent's signature was placed there on in my presence at Durban on ____ July 2006.
FULL NAMES: __________________________________________________
COMMISSIONER OF OATHS
EX OFFICIO: SOUTH AFRICAN POLICE SERVICE
REPUBLIC OF SOUTH AFRICA