French arms company Thales has, through its legal representation, argued that it has been treated by the National Prosecution Authority as a conjoined accomplice to former president Jacob Zuma, suffering the same fate as he at any point the NPA decided to drop or reinstate charges against him.
“Thales has been treated as an add-on, like something floating around. Whatever happens to Zuma is meted out to Thales. If charges are dropped for Zuma the same happens to Thales; when they are reinstated Thales is dragged along. There are no constitutional grounds followed.
“Thales is independent of Zuma and Zuma is independent of Thales,” Advocate Anton Katz made a passionate argument before the Pietermaritzburg High Court on Wednesday.
The senior counsel was making submissions on behalf of the French company which, along with Zuma, is facing charges of fraud, money laundering, corruption and racketeering linked to 783 payments that the French company allegedly made to him in connection with the infamous arms deal.
Katz made two passionate pleas, the first that the court finds former NPA head Shaun Abrahams’ conduct in the matter in which he chose to prosecute Thales as “irrational, without merit and unconstitutional”.
His second argument closely mirrored the argument made by Zuma’s legal team yesterday when it, like Thales, sought a permanent stay of prosecution from the high court.
“Indeed, Abrahams was hell-bent on prosecuting Thales, and no representations made by my clients in their own defence would have made any difference to him,” argued Katz, quoting from the company’s replying affidavit.
Katz submitted that – based on this argument alone, if he could convince the court of this conclusion – the stay of prosecution should be granted.
He based his argument on letters written by Abrahams himself, in the Zuma/Democratic Alliance case (the Spy Tapes case).
Arguing that the contents of these letters revealed that Abrahams’ conduct was questionable.
Katz attempted to convince the court that Abrahams acted irrationally when he reinstituted charges against Thales, relying on highly technical arguments over interpretations of the Constitution, and how the powers of the national director of public prosecutions are delegated.
“I accept unconditionally, that if the national director of public prosecutions exercises his/her powers under Section 22.9, they must conduct prosecution in person,” argued Katz, whose argument was dismissed as not making sense by the full bench of judges who were continuously interjecting, sighing and informing the advocate that his argument did “not make sense”.
Katz pushed trying to show how Abrahams relied on the wrong sections of law to make his decision to prosecute.
“The respondents have provided no other independent reason as to why the national director of public prosecutions took almost a decade to make the decision to reinstitute the prosecution. Nor have the respondents provided any evidence of special circumstances which justify the decision.
“It was a knee-jerk, hell-bent, status quo decision,” Katz reiterated with regards to the decision taken by Abrahams.
Katz bravely quoted a paper written by Judge Jan Steyn, one of the sitting judges before this trial, while she was a junior lecturer. The paper speaks to the heart of what Katz was attempting to argue – that Abrahams relied on the wrong sections of law to make his decision to prosecute Thales.
However, Steyn argued that former national director of public prosecutions Mokotedi Mpshe made the decision to withdraw the charges against Zuma and Thales in 2009 and then their reinstatement could have been as a result that the two parties were facing similar allegations and not because Thales was being treated as collateral damage.
Judge Jerome Mnguni also added this decision to reinstate the charges that the Pretoria High Court set aside was intertwined with the decision to recommence the prosecution of Thales (and Zuma).
“The NPA was legally required to recharge Zuma and Thales on corruption, because the court had told them to by declaring Mpshe’s 2009 decision unlawful.”
Katz, however, remained resolute in his argument that Abrahams’ decision did not follow processes, and relied on the wrong laws.