French arms company Thales, accused of bribing former President Jacob Zuma for protection from a potentially damaging arms deal investigation, has attacked the decision by the NPA to pursue a ‘weak’ racketeering case against it – for what it contends are ‘ulterior’ strategic reasons, according to legal writer Karyn Maughan in a Business Day report.

Thales is relying on the state’s prosecution memos to make the case that the NPA elected to prosecute it with racketeering to secure certain ‘benefits’ for itself and not because there is evidence to back up the charge. It says that the state itself described ‘the racketeering provisions’ of the Prevention of Organised Crime Act (Poca) as ‘weapons that suit the present case ideally’.

Under the Act, the state is able to lead hearsay evidence and to access information, for example tax records, typically not always available in ordinary prosecutions. Thales says that its review of the state’s decision to charge it with racketeering, which it says is unsupported by any direct evidence, will have no bearing on the state’s 15-year-old prosecution of Zuma.

But with its demand that the NPA fully explain its decision-making in pursuing it and Zuma with involvement in an organised criminal enterprise, Thales is effectively putting the state on trial, suggests Maughan, adding the racketeering charge, which carries with it a potential 25-year sentence, is arguably the state’s greatest vulnerability in this prosecution.

The racketeering charge crucially differentiates the Zuma and Thales prosecution from the case pursued against Schabir Shaik, Zuma’s former financial adviser.

Before then acting NPA head Mokotedi Mpshe authorised racketeering charges against Thales and Zuma in 2007, the NPA provided him with a memo stating that ‘even if the racketeering charges fail ... or are set aside on appeal, the state will be able to fall back on the same substantive charges which it employed successfully in the Shaik trial, while still having the benefit of the various procedural benefits offered by the racketeering charges’.

It is the state’s case, notes Maughan in her Business Day report, that Thales was aware that Shaik had made 783 payments to Zuma over 10 years from 1995 to 2005.

It contends that the purpose of these payments was to assist Shaik to use Zuma’s ‘political connectivity’ to benefit Shaik.

The NPA argues that because Thales ‘knew’ about these payments, it acted ‘in common purpose’ with Shaik and Zuma to share in the benefits of Shaik’s political connectivity.

But Thales’s lawyer, Jonathan Ripley-Evans, says the NPA itself acknowledged that Thales’s awareness of Shaik’s payments to Zuma ‘remains one of weakest aspects of the case as it relies predominantly on inferences rather than direct evidence’.

The state will file its response to Thales’ case in the coming weeks.

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