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Even though former president Jacob Zuma's legal team told the KwaZulu-Natal High Court in Pietermaritzburg this week that a key witness and co-conspirator in the alleged corruption that led to him being charged was dead, investigators have found him in Europe.
Alain Thétard, controversial former head of Thales South Africa and author of the infamous encrypted fax, has been traced, News24 has confirmed.
The National Prosecuting Authority (NPA) received confirmation of his whereabouts after it submitted its court papers on March 11.
In court documents and in oral arguments this week in Zuma's and Thales' applications for a permanent stay of prosecution, the court heard from the Zuma team that Thétard was deceased.
They have been charged with charges of money laundering, racketeering, fraud and corruption.
"Thétard is now deceased and cannot assist the prosecution and me to explain the fax once and for all. This prejudice is indeed insurmountable and grotesque," Zuma said in his affidavit in the current application.
Key player
Thales only went so far as to submit that he could not be traced.
Thétard was a key player in the facilitation of payments, allegedly for Zuma's benefit, through companies in the Nkobi group belonging to Zuma's former financial adviser and friend, Schabir Shaik.
In 2005, the KwaZulu-Natal High Court in Durban found Shaik guilty of fraud and corruption and sentenced him to an effective 15 years behind bars. He was released on medical parole after serving a few years in prison.
Meanwhile, Thétard could prove to be a crucial witness in the case against Zuma and his former employer.
He was the author of the infamous "encrypted fax", which revealed a R500 000 annual payment by the company to Zuma if he, in exchange, would protect it from investigations into the arms deal and lobby for the company to receive more work in South Africa.
The Sunday Times also previously reported on the testimony of lawyer Ajay Sooklal, who said, during an arbitration matter, that Zuma had used a code phrase when he met Thétard on March 11, 2000 with Shaik at King House in Durban to signal the bribe.
According to the encrypted fax, Thétard had devised the code - "I see the Eiffel Tower lights are shining today".
The NPA stated in its court papers that Interpol had previously not succeeded in tracing Thétard.
New evidence
News24 requested comment on the matter from the NPA on Thursday, after advocate Andrew Breitenbach, SC, mentioned to the court that new evidence had come to light relating to witnesses such as Thétard since it had filed court papers.
The NPA had not responded at the time of writing, and this article will be updated once a comment is forthcoming.
Also on Thursday, advocate Wim Trengove, SC, pointed out to the court the "dishonest trickery" of Thales, and in particular Thétard who had agreed to give the NPA an affidavit confirming he was the author of the encrypted fax in exchange for the withdrawal of warrants of arrest issued in his name.
There was also a promise of future co-operation.
The NPA also agreed to withdraw charges against a Thales subsidiary company, Thint, in the looming Shaik trial. But Thétard deposed to a second affidavit not long thereafter, which he submitted to the NPA on an unsolicited basis.
In this affidavit, he changed his tune, saying he had only written the fax as a record of his own thoughts and crumpled it up and threw it away.
He denied that he had asked his secretary Susan Delique, now believed to be deceased, to type the fax. She had provided the original handwritten note, which was in French, and a copy of the typed fax on a stiffy disk to the NPA.
Thétard also declared that he would only be interviewed in France, and would not return to South Africa to testify against any person in the matter.
Despite this, the NPA, under then National Director of Public Prosecutions (NDPP) Bulelani Ngcuka still withdrew the charges against Thint in the Shaik matter. The charges were reinstated by advocate Shaun Abrahams, now also a former NDPP, in March 2018.
According to the court papers, Thétard met with Zuma in Shaik's presence on three occasions in the late 1990s and early 2000s.
He subsequently denied these meetings ever took place.
Now that Thétard has been found, it is likely the NPA will seek to have him brought to South Africa to testify if and when the Zuma matter goes to trial.
The criminal matter against Zuma and Thales was postponed this week to October 15 to allow the application for a stay of prosecution to be dealt with.
It is now year 14 since the NPA first announced that Zuma would be charged.
Proceedings are expected to continue on Friday.
Advocate Anton Katz, SC, acting for Thales, expected to deliver his reply to the State's arguments against the company's application for a stay of prosecution.
The court is expected to first hear an application by Zuma's legal team to allow it to introduce a new piece of evidence, believed to be correspondence between the NPA and the Hawks in March 2018 - the same month charges were reinstated against Zuma.
News24 has learnt that the letter, the contents of which are unclear, relates directly to Zuma's contention that he is a victim of a political conspiracy that existed to push him out of politics.
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