The Mail & Guardian has established that the ANC intends to show the NPA that Zuma is small fry in the arms deal saga and that it is in possession of much more damaging evidence, including documentation that allegedly implicates former president Thabo Mbeki and Cope president Mosiuoa Lekota in wrongdoing.
High-profile legal teams hired by Zuma and the ANC also plan to:
- “Prove” to the NPA that Zuma had no criminal intent when he accepted gifts and money from fraud convict Schabir Shaik and can therefore not be convicted of corruption; and
- Argue that persisting with Zuma’s prosecution is not in the public interest.
The ANC adopted this hard-line approach after Monday’s judgement by the Supreme Court of Appeal, which effectively reinstated corruption, fraud, racketeering and money-laundering charges against Zuma and threw out Judge Chris Nicholson’s finding that there had been political meddling in the case.
The M&G spoke to four senior members of the ANC’s national executive committee and a range of legal sources linked to the Zuma prosecution, who confirmed that a plea bargain with the state, involving an admission of guilt on at least some charges, is no longer an option.
It is understood that “serious talks” took place late last year between a Zuma representative — thought to be Johannesburg senior counsel Nazeer Cassim — and the NPA, during which the possibility of a plea bargain was explored.
But the talks were aborted when Zuma “decided totake his chances in court”, said the source.
Now that the Nicholson judgement has boomeranged, and with elections approaching, Zuma and the ANC want all 18 charges dropped.
“We’re saying, let’s look at all other possibilities, but not at plea bargains,” former Limpopo premier and NEC member Ngoako Ramatlhodi told the M&G this week.
It is understood that the ANC and Zuma will make separate representations to the NPA, with Zuma focusing on the 18 charges against him and why the state cannot prove his guilt.
It is understood that Cassim, assisted by attorney Michael Hulley, will engage the NPA on Zuma’s behalf.
The ANC has employed respected Johannesburg senior counsel Hilton Epstein to make representations on its behalf and has been advised extensively by former judge Willem Heath.
The ANC’s submissions will be two-pronged: proving to the NPA that Zuma’s role in the arms deal was minuscule and that prosecuting him will not serve the public interest.
Two senior NEC members confirmed that the ANC’s own report on arms deal corruption will form part of its submission to acting NPA head Mokotedi Mpshe.
The report clears Zuma of arms deal corruption, but implicates other senior ANC members, including Mbeki and some of his former Cabinet ministers.
“Our view is that many other comrades, including Mbeki, Terror Lekota and other Cabinet ministers, are implicated in the arms deal, but nothing was done about them. The question is: why is Zuma being singled out?” said an NEC source.
ANC treasurer Mathews Phosa said the party would raise the feeling that Zuma was being singled out.
“There’s a strong feeling that other characters were involved and should go to court as well,” Phosa said.
The party and Zuma’s legal teams were advised to submit to the NPA the names of those implicated in arms deal wrongdoings.
It is understood that the ANC will present to the NPA evidence of meetings between successful arms deal bidders and politicians, including an affidavit by South Africa’s former ambassador to the United States and France, Barbara Masekela.
Last year Masekela confirmed in an interview with the Sunday Times that she had arranged a meeting between Mbeki and arms company Thales in Paris. Mbeki maintains that he cannot remember the meeting.
Thales’s local subsidiary, Thint, is accused of bribing Zuma to protect the company against an arms deal investigation.
The ANC will try to convince Mpshe that if Zuma’s case continues it will destabilise the country, as highly sensitive information from both the ANC and the government would be revealed.
“The general feeling [in the ANC] is that, if the case continues, it will be devastating to the country,” said an NEC source.
A legal source added: “There’s a very strong legal principle, internationally and in South Africa, that one of the three stages of a prosecution must be the question of whether it’s in the public interest.
“What damage could be caused by prosecuting Zuma? How much more will it cost the state? And what other consequences could it have? You need to consider these,” said a legal source close to the case.
In his submission Zuma will inform the NPA of the basis of his defence on all charges. His legal advisers appreciate the risk implied, but said it was a “calculated” decision taken after weighing up “possibilities and problems”.
Said a legal source: “Zuma will have to give the NPA substantial information. He’ll have to prove he had no corrupt intent. They will need facts or circumstantial evidence, such as documents or a loan agreement.”
Convincing the NPA of his innocence on all 18 charges might prove difficult, as the prosecutors are known to be “absolutely” convinced of their case after the successful Shaik prosecution.
They have spent years working on the case and a voluminous forensic report was finalised by KPMG in 2006.
If his representations fail Zuma’s only options are to enact legislation prohibiting a sitting president from being charged or to hope that a sympathetic NPA boss who will withdraw charges will be appointed to replace Vusi Pikoli. SOURCE: Mail & Guardian