Zuma's defence gamble: Yes, I did it - for BEE
Former president to tell court he was following ANC dictate to help black business
Jacob Zuma's lawyers will argue that the former president had no intention to commit a crime when he and his former financial adviser Schabir Shaik met with French arms manufacturer Thales, and that he was simply following ANC policy to support black business.
Zuma's legal team is preparing a multi-pronged approach to keep him out of jail, including making another attempt to have the case struck off on the basis that he is unlikely to get a fair trial.
Thirteen years after Shaik's conviction, Zuma will have to present himself in court to answer 16 charges of corruption, fraud, money-laundering and racketeering in relation to payments he received from his former financial adviser and Thales.
Thales itself is facing two counts of corruption in connection with an alleged R500,000-a-year bribe to Zuma to protect the company in the arms-deal probe.
Several known Zuma supporters were mute this week, choosing not to comment on the decision to prosecute, and referring journalists to a statement issued by ANC secretary-general Ace Magashule on Friday.According to sources close to the case, Zuma's lawyers are initially expected to apply for the case to be struck off the roll for reasons they have already advanced in representations to National Director of Public Prosecutions Shaun Abrahams.
These include that Zuma was prejudiced by the irrational decisions of several prosecutions bosses, which also resulted in protracted delays in the case being brought to trial. In their representations, which Abrahams has dismissed, Zuma's legal team also argued that there was prosecutorial manipulation and misconduct, impropriety and deliberate leaking of information to the media.
Abrahams said the trial court "would be the most appropriate forum for these issues to be ventilated".
Zuma's attorney Michael Hulley said yesterday they would likely take Abrahams's decision on review.
If the application to strike off is unsuccessful, the defence team is likely to contest the merits of the case on the basis that Shaik, whose family members include long-standing friends and comrades of Zuma's, responded to the ANC's appeal in the early 1990s that returning exiles should be aided to reintegrate into society.Many ANC leaders who were in exile or prison had no source of income and had to receive financial support from friends, family and benefactors. Zuma was in a particularly precarious position because of the number of children he had. He was in debt.
They will also argue that some of the more than R4-million from Shaik was in the form of loans, which Zuma repaid.
Redistribution of assets
Another cornerstone of the defence will be that as MEC for economic development in KwaZulu-Natal, Zuma was following the ANC's approach to support black business to advance economic transformation.
While black economic empowerment was only legislated in 2003, Zuma's team will argue that the ANC decided after the 1994 transition to actively intervene to promote the redistribution of assets and opportunities to black-owned businesses.
"In the Shaik case, there was admission that money was paid to Zuma. Zuma's defence will be to provide exculpatory evidence to show there was no corrupt intent," a lawyer close to the case said.
Zuma's team will therefore have to provide evidence showing that it was general practice in the ANC at the time to help facilitate empowerment deals, including through the intervention of people like former president Nelson Mandela.Beneficiaries of such intervention would include President Cyril Ramaphosa, who in 1996 took up the position of deputy executive chairman of New Africa Investments Ltd, and Tokyo Sexwale, who benefited through Mvelaphanda Holdings.
Zuma's team will also argue that Shaik offered to pay for Zuma's rental in a Durban flat due to concerns about his security amid political volatility in KwaZulu-Natal.
Zuma is expected to deny awareness of the R500,000-a-year payment from Thales.
The state will seek to prove that none of these arguments hold water and that Zuma's actions were motivated by material benefit.
In his 2005 judgment in the Shaik trial Judge Hilary Squires found that Zuma did in fact intervene to try to assist Shaik's business interests, and that there was "existence of a causal link between Shaik's admitted payments to Zuma and this sort of assistance by Zuma".
The judgment stated that "even if nothing was ever said between them to establish the mutually beneficial symbiosis that the evidence shows existed, the circumstances of the commencement and the sustained continuation thereafter of these payments, can only have generated a sense of obligation in the recipient".
While the Squires judgment can be referred to in the Zuma trial, the state will have to independently establish his guilt on the basis of evidence it leads.People on the state's list of witnesses include Cape Town mayor Patricia de Lille, former ANC MP Andrew Feinstein, former judge Willem Heath, and businessmen Vivian Reddy, Mzi Khumalo and Reuel Khoza.
Former SARS investigator Johann van Loggerenberg and ex-KPMG auditor Johan van der Walt also feature on the list.
Van der Walt, who was responsible for the discredited KPMG report on the "rogue unit" at SARS, compiled the forensic audit used to convict Shaik. Zuma's legal team is expected to contest the admissibility of Van der Walt's report, saying his work on the SARS case had discredited him.
It is understood that when the case goes to trial, the NPA is expecting a vehement fight by Zuma's defence against the racketeering charge under the Prevention of Organised Crime Act.
Prosecutors believe that they have a watertight case against Zuma on fraud, corruption and money-laundering, but the racketeering charge offers a harder fight.
They believe Zuma will launch a legal fight to separate that charge from the others and have it dismissed by the court.
Racketeering is often very difficult to prove. In this case the state would have to show beyond reasonable doubt that Zuma was directly involved in an organised crime syndicate.
While Shaik has said he has been subpoenaed by the state and is prepared to testify, he is unlikely to be called due to the fact that he was found to be an unreliable witness and his evidence in his trial was rejected as false.The relationship between Shaik and Zuma broke down after his conviction, and after he expressed his anger at the former president over his failure to grant him a presidential pardon.
Squires made several damning credibility findings against Shaik, including that his evidence was "simply incredible and so manifestly untenable, we think it can justifiably be rejected as false".
"It was indeed as if he existed in a bubble of his own preoccupation and belief system, without regard to external factors or reactions," Squires said.
It is not clear who the state will call to testify from Thales as Zuma's former co-accused, Pierre Moynot, who testified against Shaik, is apparently unwell.
Former Thales lawyer Ajay Sooklal, who last month incriminated Zuma in corruption when he testified at a tribunal hearing on economic crimes, might not be able to testify in the trial as his evidence would violate attorney-client privilege.
Approached for comment, Zuma's staunch backer, ANC KwaZulu-Natal co-ordinator Sihle Zikalala, referred the Sunday Times to Magashule's statement.Asked if the ANC in the province will mobilise support for Zuma when he appears in court, Zikalala said the provincial task team had not discussed the matter.
"There is nothing that prevents comrades at a personal level to be there in support of their former president," he said.
Zuma might, however, face another headache: his legal fees. The DA and EFF have threatened to go to court to stop the taxpayer footing Zuma's legal bills.
Legal experts said the State Attorney Act could not be used to justify continued funding of Zuma's fees and argued that allowing an apparent deal on fees to continue would set a negative precedent, particularly since other current and former ministers and officials may face state capture charges.
The State Attorney Act provides state financial support for cases in which the government has a direct interest, or matters in which there is clear public interest.
- Additional reporting by Sibongakonke Shoba and Karyn Maughan