Zuma and Thales continue on their losing streak

French company Thales and co-accused, former president Jacob Zuma, have lost their bid to have the arms-deal related corruption trial against them stopped.

However, followers of this long saga should not hold their breath.

Both indicated on Tuesday they would consider appealing the ruling made by Pietermaritzburg high court judge Nkosinathi Chili, and new trial dates, possibly only in the second half of 2026, will be determined in December this year when the parties appear in court again.

Earlier this year Chili heard an application by Thales that it would not get a fair trial because key witnesses, including former company executives Pierre Moynot and Alain Thetard, had died.

It was submitted that because of this Thales would not be able to adduce and challenge evidence.

Zuma piggybacked on the application, saying if the prosecution was halted against Thales then he should also be acquitted for similar reasons.

However, on Tuesday Chili dismissed the applications. In essence, he said if there was any trial prejudice, that should be dealt with and assessed by the trial court.

He said the court could “only shut the door” on the prosecution's legal right to prosecute if an accused could show exceptional circumstances and the court was satisfied the accused would suffer irreparable and insurmountable trial prejudice.

Thales had failed to do so and had, instead, relied on “hypothetical prejudice”.

He also noted Thales had changed tack, in particular to the issue of Thetard. In its (failed) 2018 application for a permanent stay, it had said Thetard was not prepared to assist in the matter in any forum in any way.

Now it claimed it was prejudiced because he had died.

“It would have been expected Thales would have put up evidence to indicate at a certain point of time he (Thetard) had changed his mind (about giving evidence). Without such evidence, one is inclined to conclude it conveniently moved the goalposts to bolster its case,” Chili said.

While lawyers for Zuma and Thetard said they were considering their options, advocate Dali Mpofu, for Zuma, said it was “likely” his client would wish to apply for leave to appeal the ruling.

He also noted Zuma had petitioned the Supreme Court of Appeal for leave to appeal an earlier refusal by Chili to have lead advocate Billy Downer removed from the case.

It was impossible, he said, to set new trial dates with these “interlocutory applications” pending.

Downer pointed out trial dates had been set in May 2024 and two sessions this year had been missed.

He said the state would make a “serious” substantive application the trial must continue, in spite of any further mid-trial applications and appeals.

“We have got to the stage, the trial dates were set in May 2024. It's more than a year later. The interests of justice require that the matter proceed to trial. The courts have decided (in many of the matters) that there has been an abuse and it should not be allowed to continue. We will make that argument that it has been so long but no further.”

At some point, he said, “we have to draw the line”.

Mpofu said such an application was “unheard of, and I can assure you it will be opposed by us”.

“I don’t want to anticipate his (Downer’s) application. But it’s unthinkable a trial can continue when two applications, one about the removal of the prosecutor, have not been decided. And when there is a Thales application which has serious implications as to whether there will be a trial at all if your judgment is reversed,” he submitted to Chili.

The parties agreed the state’s application would be heard on December 6. If necessary, December 5 would also be set aside to hear the application for leave to appeal against Chilli’s Tuesday ruling.

While Downer wanted the court to set aside actual trial dates in 2026 ahead of this, it was agreed the parties would confer and would submit proposed dates to the judge by December.

Zuma was not present in court, having been previously excused.

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