PIETERMARITZBURG – The Pietermaritzburg High Court heard on Thursday afternoon that prosecuting French arms company Thales for graft should not be halted because the evidence against the corporation was “very strong”.
Advocate Andrew Breitenbach SC, acting for the State, was arguing before a full bench.
He told judges Jerome Mnguni, Esther Steyn and Thoba Poyo-Dlwati that Thales was charged with “very serious offences, and the evidence against it is very strong”.
“The charges involve the alleged corruption of the second most senior member of the national executive [at the time] and relate to racketeering and money laundering,” said Breitenbach.
Thales has been charged alongside former president Jacob Zuma on several counts of fraud and corruption allegedly committed during the South African arms deal of the 1990s. Thales secured a contract to supply combat systems for the South African navy during the arms deal.
Zuma and Thales have applied for a permanent stay of prosecution.
Zuma is alleged to have received bribes from Thales via his friend and former financial adviser, Schabir Shaik, to protect the company from an investigation that was launched at the time. The alleged bribes were also to sway Zuma to look favourably on Thales for any future contracts.
Shaik was convicted and sentenced for fraud and corruption relating to the same case in 2005.
Breitenbach continued: “In a case involving a serious offence, the societal demand to bring the accused to justice is much greater and the court should be much slower to grant a permanent stay.”
Speaking about the nature of the offence - also a deciding factor in granting a permanent stay of prosecution - Breitenbach said that if fairness to the public, public confidence in the criminal justice system and the need to address the harm done to society and the constitution by the alleged crimes were considered, they would “weigh heavily in favour of allowing Thales to be tried on the charges it is facing”.
Quoting from case law, Breitenbach said that permanently staying a prosecution was “radical”, both philosophically and socio-politically.
“Barring the prosecution before the trial begins, and consequently without any opportunity to ascertain the real effect of the delay on the outcome of the case, is far reaching.
“Indeed, it prevents the prosecution from presenting society’s complaint against an alleged transgressor of society’s rules of conduct. That will seldom be warranted in the absence of significant prejudice to the accused,” he quoted.
Zuma and Thales spent Monday and Tuesday respectively arguing their reasons for a permanent stay, which included unreasonable delays in prosecution.
On Thursday morning, Advocate Wim Trengove, SC, acting for the State, gave counterarguments in the Zuma application. Breitenbach dealt with Thales' application in the afternoon.
As had Trengove, Breitenbach at first presented reasons for several delays in the case since Thales was first charged in 2005.
The matter was struck from the court roll in 2006, charges were reinstated in 2007 but again withdrawn in 2009. Both Thales and Zuma were again charged in 2018.