Riyaz Patel
Thales, the French arms manufacturer that has been accused of corruption alongside former president Jacob Zuma, has filed a conditional application with the High Court for leave to appeal the denial of its permanent stay of prosecution at the Supreme Court of Appeal (SCA).
It has, at the same time, filed a direct appeal with the Constitutional Court.
The grounds for the company’s ConCourt appeal have been laid out in an affidavit by employee Christine Guerrier who has been representing the company in court.
In its High Court application, Thales assert that judges Jerome Mnguni, Esther Steyn and Thoba Poyo-Dlwati sitting at the Pietermaritzburg High Court.“erred” on several fronts in October when unanimously rejecting the firm’s bid for a permanent stay.
“The Full Court’s rejection of Thales’ challenge does not withstand constitutional scrutiny,” the arms company claimed.
The decision to institute prosecution against Thales was announced by former National Director of Public Prosecutions (NDPP) Shaun Abrahams, in 2018, at the same time that he announced charges would be reinstated against Zuma.
“The respondents at no point explained why, if there was a reasonable prospect of a successful prosecution of Thales, they waited nine years to restart the prosecution against it, particularly in circumstances where the respondents stated that since 2005 there had been sufficient evident to prosecute Thales on the very charges it now faces.”
These were “glaring irregularities” that had been “glossed over” when it was decided to deny the company’s application for a permanent stay of prosecution, the company said.
The French arms manufacturer has been accused of bribing Zuma via his former financial advisor, Schabir Shaik, for protection from a probe into the controversial arms deal in the 1990s.
Thales said Abrahams used the wrong section of the law to justify instating charges. The company further contends that he did not have the authority to bring the charges, which should have been the domain of the KwaZulu-Natal DPP.
“A decision to prosecute, which is taken directly by the NDPP, bypasses the constitutional assurance of not only having decisions to prosecute subject to possible review but also the right of an accused to make representations at the stage of a review of such decisions.”
Mnguni, Steyn and Poyo-Dlwati had “erred” in finding that the “special reasons” requirement was satisfied in relation to Thales, the company said.
“For the NDPP to re-institute the validly withdrawn prosecution against Thales almost ten years after the withdrawal thereof principally because the state’s withdrawal of [Thales’] co-accused, Mr Zuma, turned out to have been unlawfully taken, and in circumstances, when the NPA had defended the validity of its withdrawal of charges against Mr Zuma for many years, cannot be regarded as a special reason,” Thales argued in its application.
The company further maintains that the decision reached by the Pietermaritzburg High Court was also wrong because the “special reasons” given to reinstate charges against Thales were different in the heads of argument given by the respondents to those given by the NDPP.
Additional reporting by ANA
