Thales wants arms deal charges dropped

Lawyers acting for former president Jacob Zuma in his arms deal-related corruption trial will on Thursday argue he should be given leave to appeal a ruling last year by the trial judge dismissing his renewed bid to remove lead prosecutor Billy Downer.

The state is opposing the application.

In a new twist in the litigation, Zuma’s co-accused, French arms company Thales, has filed an application asking that prosecution against it be stopped and it be acquitted of charges.

This application will further delay the criminal trial.

The state and Zuma will be given an opportunity to file papers before it can be set down for argument. Whatever the outcome of that hearing, it will set in motion a flurry of appeals.

In an affidavit, attorney Cameron Dunstan-Smith, representing Thales, says the charges relate to events which took place almost three decades ago. Thales had pleaded not guilty and filed a plea of explanation in May 2021.

Since then the trial had been postponed 16 times “due to no fault of the second accused”.

He said the indictment was first served on Thales in 2018 and since then two key witnesses “who are fundamental to its defence and the charges against it” have died.

Not only had Thales been forced to incur unnecessary legal fees but its ability to adduce and challenge evidence in the criminal trial had been “severely and unjustly prejudiced, constituting an infringement of its constitutional rights”, Dunstan-Smith said.

It was impossible for Thales to receive a fair trial, especially given that the two directors, Alain Thetard and Pierre Moynot, who were allegedly involved in matters relating to the charges, have died.

“The importance of them in the criminal trial cannot be overstated. They are the only individuals able to testify in relation to the charges, and their deaths have resulted in [Thales] being placed in a position where it cannot effectively put forward its defence and adduce and challenge evidence.”

Dunstan-Smith said witnesses for the prosecution had also died, including forensic auditor Johan van der Walt who prepared the report upon which the prosecution relied to present its evidence.

He reiterated Thales had nothing to do with the trial delays and the dozens of postponements.

“It is understood that the public has a right to see offenders brought to book but due regard must be given to the presumption of innocence and the fair trial rights in the constitution.”

On Thursday, Zuma’s lawyers will argue that judge Nkosinathi Chili was wrong when he refused to grant an order removing Downer from the trial.

In September 2024, Chili, in setting out his reasons for the March order, said Zuma had relied on four pillars in his bid to oust Downer and every one had been previously dealt with in courts, including the Supreme Court of Appeal which had found his continued attempts to remove Downer was an abuse of process and a sustained attempt to obstruct and delay his criminal trial.

Zuma, he said, had anchored his removal request on his private prosecution of Downer (for the alleged leak of his private medical information to journalist Karyn Maughan).

He had argued it was impermissible for Downer to prosecute him while he was prosecuting Downer at the same time.

But Chili said Zuma's attempts to pursue the private prosecution had been unsuccessful and “as things stand there is no private prosecution”.

With regards to Zuma’s contention that the trial could proceed if the National Prosecuting Authority just replaced Downer — and that Downer was not indispensable — Chili said that was not supported by the evidence, referring to an affidavit by Zuma in which he said it was doubtful he would get a fair trial from any member of the prosecutions team.

He said there was merit to the argument by the NPA that allowing an accused person to elect the prosecutor of their choice would become a standard tool in the toolbox of well-resourced people to abuse the process.

Dates for the trial — beginning on April 14 next year — are still reserved.

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