Thales's appeal for permanent stay in Zuma arms deal trial rejected

Former president Jacob Zuma and his co-accused, Thales, are yet to decide whether they will file an appeal against the Pietermaritzburg High Court ruling to dismiss the arms deal case against them.

Zuma, who now leads the Umkhonto weSizwe Party (MKP), had piggybacked on the French arms manufacturer’s application for the permanent stay to escape being tried for fraud, corruption, racketeering, and money laundering charges.

Zuma was not in court on Tuesday.

The charges dated back to the 1998 arms deal, which the government had entered into with Thales. The trial has been delayed due to many factors, including attempts to get state prosecutor Advocate Billy Downer off the trial following allegations of bias, which Judge Nkosinathi Chili had rejected in September last year.  

After Judge Chili’s ruling on Tuesday morning, the State and defence teams agreed to postpone the case to December 4. 

The postponement would give Thales time to decide whether to file an appeal against Judge Chili’s ruling. Zuma would also get time to go to a higher court to appeal against Judge Chili’s ruling that Downer should continue prosecuting the matter. 

Regarding the stay of prosecution application, Thales’s legal team had, on April 24, argued that continuing with the trial would be constitutionally unfair since its client’s former directors, Pierre Moynto and Alain Thetard, who were its prime witnesses, had died.

Moynto had been the director of Thales and the executive officer of the African Defence Systems, another entity, “which featured prominently in the State case against Thales”. He died on December 31, 2020.

Thetard, who died in September 2022, also served as Thales’s director.  

Both accused had contended that without Moynto and Thetard's testimony, their defence would be severely prejudiced. 

“In support of its case, Thales alleged that the importance of Moynto and Thetard in the criminal trial against Thales was unquestionable, (as) they are the only individuals who would be able to testify on behalf of Thales and also to assist Thales in challenging any evidence led by the State against it,” said Chili. 

Zuma and Thales said that had the case against them not been delayed, Moynto and Thetard would have been available to testify. 

Zuma had said that if Thales succeeds, he would also apply to have his charges dropped because the alleged corruptor would no longer be on trial. 

However, that hope was dashed when Judge Chili rejected Thales' argument that Moynto and Thetard’s testimony was important. 

“The question of whether they would prejudice, which might result in Thales not receiving a constitutionally fair trial, is a matter for the trial court. 

“Whether the right to a fair trial is infringed, the matter would be best decided by the court,” said Judge Chili.

He agreed with Zuma’s argument that his prosecution was conjoined with that of Thales and could not be separated, and that “if Thales’s case fails, Zuma’s case must also fail”.

He read an extract from the Criminal Procedure Act, which states that the decision to stop the prosecution rested with the State. 

“There is nothing in the Act that empowers the court to direct the State to either withdraw a charge or stop the prosecution against an accused person.

“I am therefore satisfied that it would be incompetent of this court to grant the relief sought in prayer one of the main applications (brought by Thales),” said Judge Chili. 

The judge said Thales was shifting the goalposts by claiming that Thetard and Moynto were its invaluable witnesses. 

He said that its May application contradicted another permanent stay of prosecution, which it made in November 2018, where it stated that Thetard was not prepared to come to South Africa to testify in the trial. 

He said Thales had at the time supported its argument by giving the court Thetard’s affidavit, which was dated March 11, 2009, that he was not available to testify.   

He said Thales should have indicated in its latest application that Thetard had at some point changed his mind and was ready to testify.

“Without such evidence, one is tempted to conclude that Thales conveniently decided to move the goalpost.” 

He said the State had previously stated that Moynto was not important because he was not a central actor in the event, giving rise to the charges against Thales. 

“It was the common course that he was not an officer or an employee of Thales in April 1998 and the third quarter of 2000, during which most of the events occurred. 

“He only represented Thales before April 1998 and thereafter late in the year 2000 onwards,” said Judge Chili.

Cape Times