AS IT HAPPENED: Zuma and Thales should not be granted permanent stay of prosecution, application must be 'dismissed with costs', State argues

And with that, court proceedings wrap up for the day and adjourns until 09:30 on Thursday morning. 

And with that, court proceedings wrap up for the day and adjourns until 09:30 on Thursday morning. 

Breitenbach is making quick work of the interlocutory applications. 

He is moving on to an application the State wishes to bring against new information Zuma added in a replying affidavit. 

Sikhakhane, for Zuma, rises and suggests that it be dealt with on Thursday morning. 

Breitenbach suggests that the court rather deals with the matter at the end of the State's submissions, and on resumption on Thursday morning, proceedings should rather resume and hear submissions from Trengove.

Breitenbach argues that the affidavit was put together the way it was, to avoid duplication of court papers exceeding 1 000 pages. 

NOTE: It speaks to how closely tied together the case of The State v Zuma and The State v Thales actually is - the NPA only filed one set of heads of argument to deal with both applications for a stay of prosecution. 

Breitenbach is now dealing with an interlocutory application by Thales to have parts of Advocate Billy Downer's replying affidavit struck out. 

Thales objected to several paragraphs it said was vexatious, because Downer had used some of these paragraphs in a responding affidavit to Zuma - in the same matter.

It is expected that Wim Trengove will deal with the merits of Zuma's stay of prosecution application on Thursday morning. 

Breitenbach continues, and explains it took longer to process the court papers than anticipated, by way of an explanation for the delays in the Thales matter. 

Advocate Andrew Breitenbach SC, representing the NPA, is now addressing the bench. He will argue that Thales should not be granted a permanent stay of prosecution.

Adhikari wraps up: Having regard to what Mr Katz and I have argued, that is my final submission.

Adhikari is explaining that even to cross-examine a witness during trial, one has to be able to put a version of events to the witness. But everyone who had knowledge of the alleged bribes are "gone".

Adhikari: The submission is very simply, the inescapable conclusion is, that Thales will not get a fair trial.

Adhikari: There is no one at Thales who was involved in the matters, and the institutional knowledge is gone. The NPA says we have documents, but what does that help if no one is available to explain those documents?

There is no evidence three of the Thales witnesses are in South Africa. Adhikari points out that the NPA even asked Interpol to search for the three individuals, to no avail.

If that is the case, we have a situation where Mr Thetard in 2009 puts up an affidavit, where he says he is not coming to South Africa to testify, and he won't be testifying in any other forum. 

Thetard says he is not coming. On the premise they are not available. What then? If we don't have them. And the question is, why is that not an issue for the trial court matter to deal with? What we are dealing with here is a corporate accused, which is different to a person.

Steyn is on form today. She is asking tough, concise questions of the Thales legal team. 

She grills Adhikari on the fact that Thales opposed a postponement application that was before Judge Msimang in 2006. Msimang struck the matter off the roll.

Steyn: "Thales could have said that we are ready to plead now, but the State's conduct is preventing us from doing so. Did they?" 

Adhikari is adamant her client is not responsible for the extensive delays in this case. "Thales had nothing to do with the delays." 

Adhikari is drawing comparisons with a common assault case. She submits that the court would ask the prosecutor why they are charging a man with assault, if the incident occurred 19 years ago.

We have the State saying, as from 2005, they had all the necessary evidence to prosecute CSF (Thales).

But what this court will consider, with those two facts taken together, is whether a nine-year delay is justified, considering the NPA's submission they had the evidence.

Steyn interrupts Adhikari: "We are coming to the same issues we covered with Mr Katz, that Thales is an add-on." 

Adhikari: "With respect, my submission is different." 

Steyn: "But the answer is the same." 

Adhikari is getting some push-back from the bench. 

The broader issue she is traversing relates to who was responsible for delaying the matter over various periods for the past 15 years. 

Thales denies it was responsible from 2005 to 2009. The NPA accepts, Adhikari says, that the delays were caused by the NPA after 2009.

There is a nine-year delay. And that delay is not really explained when it comes to Thales. We know the reason for the delays on Mr Zuma's side, but Thales was not really part of that litigation. 

Adhikari says the nine-year delay in the Thales matter, is unexplained. 

Adhikari has drawn the court's attention to the NPA's submission that Thales is being favoured. 

She has told the court she agrees with the NPA's version that Thales is, as a corporate entity, not a person with emotions or feelings and will probably only face a large fine if found guilty. But she argues the NPA cannot suggest that a company's fair trial rights are different from those of a natural person. 

Former president Jacob Zuma during court proceedings. (PHOTO: Felix Dlangamandla)

Back from the lunch adjournment. 

Advocate Mushahida Adhikari, also representing Thales, now takes her opportunity to address the bench on behalf of her client. 

Katz starts wrapping up and says the cause of the delay in the matter was the decision by Mphse to drop the charges in 2009... 

Katz is stopped mid-sentence and the lunch adjournment is called. Back at 14:00.

Plenty of discussion once again between the bench and Katz. Katz is saying that the people who were employed at Thales when the actual alleged bribery was going on, are "impossible" to trace. The court heard on Monday that Alain Thetard, according to Zuma's legal team, is dead.

Katz says Zuma's argument was that he suffered prejudice, but it was not trial related. Thales will make no such submission. 

Advocate Muzi Sikhakhane SC (for Zuma) rises to his feet, and asks the court to not allow Katz to "argue my case". 

"Because Mr Katz has now mischaracterised my case," Sikhakhane said. 

We have now moved on from the arguments over Abrahams' conduct. Now, it's the stay of prosecution proper, and why Thales believes the court should rule in its favour.

Katz is still in full flow, while the bench seems a bit restless. (NOTE: Katz, by his own admission, has tested the patience of the bench.)

After lunch, Katz says Advocate Mushahida Adhikari will present an argument to the court that will set out why Thales believes it cannot obtain a fair trial in this case.

 - News24 reporter Kyle Cowan

Steyn and Poyo-Dlwati share another meaningful look and a smile, while listening to Katz's argument. 

In the public gallery, News24 observed some people playing Candy Crush on their phones, and at least three individuals either asleep, or struggling to stay awake. 

It's a cold Pietermaritzburg day, but it's warm inside the courtroom. The majority of the public gallery is made up of people huddled over their phones and laptops. 

Carl Niehaus seems alert and appears to be following the arguments, while Des van Rooyen has been engrossed in his phone for some time now. 

NOTE: Katz is trying very hard to convince the court that Thales and Zuma are separate and Thales is only being charged because the Zuma charges were reinstated. 

Bearing in mind, Thales allegedly paid Zuma the bribes, and it is very hard to separate the two in the context of this case. The case is as much about Thales as it is about Zuma. 

This is shown in the flashes of frustration and exasperation on display on the bench.

Katz and the judges are traversing the same territory, with Katz constantly responding to questions from the bench.

Katz: From a procedural, rationality point of view, we submit that procedurally, it would have been rational to ask Thales, if they were in a position to defend the charges now. 

Poyo-Dlwati interrupts: "Why? Why must an accused be asked if they are ready to defend the charges?" 

Katz is still being interrogated by the bench regarding the substance of his arguments over what he says was an irrational decision by former NDPP Shaun Abrahams.

"It was a knee-jerk, hellbent, status quo decision," Katz says of the decision taken by Abrahams.

Katz: "Abrahams says the representations must be rejected, and his only reason, is that 'after careful consideration of the matter, I believe there are reasonable chances of a successful prosecution'..."

Steyn pushes Katz again. She reads from Abrahams' letter in which he informs Thales the prosecution will be going ahead. Katz is arguing Abrahams' decision was irrational, and he did not take the representations into consideration. 

Steyn puts it to Katz that he did take the representations into consideration. "The representations informed his decision." 

Katz: The representations did not deal with the merits of the charges, but dealt with the fairness of the process. 

Back from the adjournment, Katz continues with his submissions. He is now dealing with an earlier question from the bench, regarding which aspect of Abrahams' decision to re-charge Thales was "irrational".

Poyo-Dlwati wants Katz to look at the indictment. "It seems you cannot accept that Thales is linked. So I want us to look at the charges." 

Katz starts to respond, but she interrupts him. "We will take the tea adjournment now."

The morning tea adjournment is called. Back in 15mins. 

Katz, waving a pink highlighter, addresses the court on Abrahams' decision not to grant Thales an opportunity to make representations. 

"Let me highlight this. There is a difference in kind of representations made before a decision to prosecute, and after." 

Here is the nub of Katz's argument: Abrahams decided to reinstate charges against Zuma, following the Supreme Court of Appeal's rejection of the NPA's appeal against the High Court judgment declaring Mpshe's decision unlawful. 

Thales, he says, cannot and should not have been charged simply because Abrahams decided that because Zuma and Thales had been linked, and were to be charged in 2005 with Schabir Shaik, it was now the "status quo" - leading to Thales being charged again, too. 

Katz submits that because of this, because Abrahams did not make a "new and original decision" over the facts of the case, the decision to prosecute Thales was irrational and should be set aside.

  - News24 reporter Kyle Cowan

Mnguni: The NPA decided to prosecute Thales because there is still evidence to support a conviction. 

Steyn earlier pointed out that the evidence against both parties (Zuma and Thales) still exists.

Katz: "Each accused is to be determined on its own facts and circumstances. Thales is independent of Mr Zuma, Mr Zuma is independent of Thales, and when you consider Thales, you consider Thales' facts and circumstances, not Mr Zuma's. When you consider Zuma, you consider Zuma and not Thales."

Katz: "And what the NPA have done is said, 'Bad Zuma, bad Thales. Good Zuma, good Thales'..." 

NOTE: Mokotedi Mpshe, former NDPP, made the decision to withdraw the charges against Zuma and Thales in 2009. Mnguni pointed out that this decision, which the Pretoria High Court set aside, is intertwined with the decision to recommence the prosecution of Thales (and Zuma). Simply put, the NPA was legally required to re-charge Zuma and Thales on corruption, because the court had told them to by declaring Mpshe's 2009 decision unlawful. 

Katz is trying to argue Abrahams' decision did not follow processes, and relied on the wrong laws.

 - News24 reporter Kyle Cowan

Poyo-Dlwati: Does Thales accept the reason prosecution was withdrawn in 2009 was because the then-NDPP, Mr Mpshe, had withdrawn the cases against Mr Zuma? 

Katz: Yes, I was not in Mr Mpshe's shoes so I will have to accept that. 

Katz carries on making his submissions.

Katz: It seems that in the way the court has dealt with me, that I have tried the court's patience... 

Judge Poyo-Dlwati stops him: "When you make the argument over and over, we lose it. Let's just digest it. Sometimes a lawyer makes a good argument, but ruins it by interrupting themselves... " 

Katz quips: "When I was starting out as a lawyer, I was told repeating a bad argument will not make it a good one." 

Poyo-Dlwati: "That is certainly not what I am saying." 

Katz: I accept unconditionally, that if the NDPP exercises his/her powers under Section 22.9, they must conduct prosecution in person. 

Mnguni: That argument does not make sense. 

"This case is about power. Considerable power...the court will consider this massive power. That is used nefariously from time to time, all over the world," Katz says of prosecutorial power. 

"And where is that power located? The Constitutional Court tells us it is the NPA Act...and it is to that act that the court will turn to determine if Abrahams had the power or not." 

Katz, bravely, is quoting a paper written by Judge Steyn while she was a junior lecturer, which speaks to the heart of what Katz is trying to argue - that Abrahams relied on the wrong sections of law to make his decision to prosecute Thales again.

"The prosecution can only recommence by the following, a different, original decision..." the paper reads. 

Katz submits: "Abrahams had a duty to make a different, original decision (to prosecute)." 

Steyn interrupts Katz again: "A withdrawal [of charges], Mr Katz, is never permanent..."