Thales, the multinational French arms manufacturer that has been accused of graft 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).

At the same time, it has filed a direct appeal with the Constitutional Court (ConCourt). Should the apex court deny the application, Thales will continue with its application for leave to appeal before the SCA.

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, the corporation says that judges Jerome Mnguni, Esther Steyn and Thoba Poyo-Dlwati erred on several fronts in October when unanimously rejecting Thales’ bid for a permanent stay.

The matter was heard at the Pietermaritzburg High Court.

“The Full Court’s rejection of Thales’ challenge does not withstand constitutional scrutiny,” the company said.  

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. 

Thales 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. 

According to Thales, Abrahams used the wrong section of the law to justify instating charges. The company also 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.”

The company said that even if Abrahams did have the powers to institute prosecution, he did so in violation of the “binding prosecution policy, which provides that a prosecution can only be re-instituted after it has been lawfully and validly withdrawn, as it was in Thales case, if  ‘special reasons’ exist".

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“For the NDPP to re-institute the validly withdrawn prosecution against Thales almost ten years after the withdrawal thereof principally because the state’s withdrawal of [Thales’] co-accused, Mr Zuma, turned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.

All of the respondents – the KZN DPP, NDPP and NPA – had accepted that the withdrawal of prosecution of Thales in 2009 was lawful, valid and binding, the company said.

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.

The reasons given by Abrahams to reinstate charges against Thales were that there was a reasonable prospect of a successful prosecution, that the prosecution would not have been stopped if an “invalid reason” was given to stop prosecution of Zuma in 2009, and that Abrahams wanted to restore the previous state of affairs.

“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, Thales said.

In their decision to deny the permanent stay, the judges found Thales would not suffer trial prejudice even though there were no witnesses who could give evidence after so many years.

There were four “fundamental defects” in the reasoning here, Thales said, with the most serious being the suggestion that the company’s attorney of record, Robert Driman, could possibly be a witness for Thales.

“[C]ommunications between a legal advisor and client are protected, in order to facilitate the proper functioning of an adversarial system of justice.”

The matter will be heard before a full bench at the Pietermaritzburg High Court on November 22.