Judge Nkosinathi Chili has reserved judgment on the applications for acquittal brought by French arms company Thales and former president Jacob Zuma in the long-running arms deal corruption case.

The Witness reports that this comes after Chili dismissed Zuma’s application for leave to appeal an earlier ruling that rejected his bid to have state prosecutor Billy Downer removed and to prosecute him privately.

Zuma’s lawyer, advocate Dali Mpofu, indicated his intention to petition the Supreme Court of Appeal against this ruling.

The matter returned to the Pietermaritzburg High Court yesterday, where Chili heard arguments in Thales’ application to have the case against it permanently stayed. Zuma joined this application by filing a conditional request for acquittal if Thales is successful, stating the two accused are ‘joined at the hip’.

Thales argued that unreasonable delays in the case have severely prejudiced its defence, noting the deaths of its two most crucial witnesses, former directors Pierre Moynot and Alain Thétard.

These two were the only Thales representatives present in South Africa during the period relevant to the charges.

As a result, Thales contends it can no longer receive a fair trial and seeks an order preventing the National Prosecuting Authority (NPA) from pursuing charges of corruption and racketeering against it.

“Every accused person has a right to a fair trial, which includes the right to adduce and challenge evidence,” Mpofu said.

Zuma and Thales face multiple charges, including fraud, corruption, money laundering, and racketeering, linked to the multibillion-rand arms deal concluded in the late 1990s while Zuma was deputy president.

The state alleges that Zuma received corrupt monthly payments from his former financial adviser Schabir Shaik, who allegedly used political influence to advance his business interests.

Thales was originally charged in 2004, but those charges were withdrawn following an agreement between the prosecution and Thales — then represented by Moynot, its sole director in South Africa.

As part of the agreement, Thétard submitted an affidavit the state intended to use in future prosecutions.

After receiving affidavits from both men, the state withdrew the charges.

In 2016, while Zuma was still president, the high court ruled that the 2009 decision to drop the charges was irrational and ordered the NPA to reconsider.

The Supreme Court of Appeal upheld this ruling in 2017.

In March 2018, one month after Zuma’s resignation, the NPA formally reinstated charges against him and Thales.

Thales’ advocate, Verry Roux, submitted that the testimony of Thétard and Moynot was essential to proving Thales’ innocence — particularly their claim that neither Thales nor its directors knew of any payments made by Shaik to Zuma or on Zuma’s behalf.

He added that Moynot’s evidence was crucial in disproving the state’s claim that the conclusion of the strategic partnership agreement (SPA) amounted to an attempt to conceal a bribe, particularly with regard to Count 6 of the indictment.

“The importance of Thétard and Moynot in the criminal trial cannot be overstated,” Roux said.

They are the only individuals who can testify on behalf of [Thales] regarding the charges and assist in challenging the state’s evidence.

According to court papers, Thales learned in late 2021 that Moynot had died on January 18, 2021, and Thétard had died in Germany on September 7, 2022.

Official confirmation was only received in 2024.

Mpofu reading Zuma’s affidavit : “This counter-application is essentially premised on the basis that the case against the first and second accused is symbiotically conjoined and cannot be artificially separated.

“To put it simply, it is totally impossible for the state to pursue the case against me if the prosecution of the second accused must be terminated on the pleaded grounds — as it must.

“The deaths of the two material witnesses have a similar or equal effect on the evidence necessary to convict me.

“The charges against both accused are indisputably centred around the so-called encrypted fax.

“This is clear from the charge sheet, the summary of facts, and my section 115 plea explanation, which are all before the court.”

Mpofu added that delays in the matter were either due to legitimate exercises of his constitutional rights or circumstances beyond his control.

However, state advocate Andrew Breitenbach reading the state’s affidavit said: “While I accept this court’s power to grant appropriate relief under section 38 of the Constitution, I deny that proceeding against Thales will invariably and irremediably violate its right to a fair trial.

“The alleged infringement can only be properly assessed after evidence has been heard from both sides.”

Breitenbach further submitted that the matter was thoroughly investigated between 2000 and 2006, and that most of the evidence is documentary and has been preserved. He noted that most of the state’s witnesses, apart from a few who have since passed on, remain available.

Those deceased include:

• Yusuf Surtee (died in December, 2018)
• Sue Delique, Thétard’s secretary (died in June, 2018)
• Johan Van der Walt, forensic accountant and co-author of the FTI report (died in August, 2021)
• Gavin Woods (died in January, 2024)
• Willem Heath (died in October, 2024).

Despite these losses, Breitenbach maintained that sufficient evidence remains to proceed with trial.

Chili adjourned the matter to a holding date of June 3, when he is likely to deliver judgment or provide a date for doing so.

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