IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG
CASE NO: CCD30/2018
In the matter between:
THE STATE
and
JACOB GEDLEYIHLEKISA ZUMA FIRST ACCUSED
THALES SOUTH AFRICA (PTY) LTD SECOND ACCUSED
______________________________________________________________________
JUDGMENT
Delivered on. 3 June 2025
Chili J :
[1] On 6 February 2025 , the second accused, Thales SA (Pty) Ltd (Thales) filed a
notice seeking an order in the following terms:
‘1. That the state be directed to stop the prosecution of the second accused in this matter as
envisaged in s6 of the Criminal Procedure Act 51 of 1977;
2. That the second accused be acquitted on all charges. ’
From hereon I refer to Thales’s application as the main application .
[2] A month later , on 24 March 2025 , Mr Zuma joined issue and file d a notice titled
‘Notice of Conditional Counter Application ’ couched in the following terms:
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‘Take notice that at the hearing of the main application, the second accused [sic] [clearly
referring to the first accused] intends to bring the present conditional counter -application , for an
order that, in the event of the relief sought in the main application being granted :-
1. The prosecution against the first accused is set aside;
2. Further and or alternative just and equitable relief in terms of , inter alia , s172 (1) (b) of
the Constitution .’
[3] In support of their respective applications , both Mr Zuma and Thales filed
founding affidavits . The State filed an answering affidavit to which both Mr Zuma and
Thales replied . The matter subsequently served before me as an opposed application
on 24 April 2025.
[4] It is apposite to mention that the relief based on s 172(1) (b) of the Constitution is
only set out in Mr Zuma’s notice of motion, not Thales’ s notice. Be that as it may , it is
my view that given the history of this matter there is good reason to consider whether
Thales succeeded in making out a case for a declaratory order set out in paragraph 2 of
Mr Zuma’s notice. I begin with the question whether it is competent for this court to
grant the relief sought in prayers 1 and 2 of the main application. But before I proceed , I
pause to first deal with the position of Mr Zuma.
[5] The success of Mr Zuma is in no uncertain terms conditional upon the success of
Thales. This much is evident from his notice where he states, inter alia, that at the
hearing of the main application, he would bring ‘a conditional counter -application ’ for an
order that in the event of the relief sought by Thales in the main application being
granted, he w ould seek an order setting aside his prosecution. The above averment is
repeated verbatim in para 4.3 of Mr Zuma’s supporting affidavit. In paragraph 58 Mr
Zuma made the following remarks:
‘This counter application is essentially premised on the basis that the case against the first and
second accused persons is symbiotically conjoined and cannot be artificially separated. To put it
simply, it is in my view totally impossible for the state to pursue the case against me if indeed
the prosecution of the second accused must be terminated upon the pleaded grounds, as it
must .’ (My emphasis.)
3
I am therefore satisfied, regard being had to the above , that Mr Zuma’s success is
dependent on Thales’ s success. If Thales’ s case fails , it follows that Mr Zuma’s case
must also fail.
[6] I now revert to the question of whether it is competent for this court to direct the
State to stop the prosecution in accordance with the relief sought by Thales in prayer 1.
Section 6 of the Criminal Procedure Ac t 51 of 1977 (the Act) makes it clear that the
power to withdraw a charge or to stop the prosecution rests with the State. Section 6 is
divided into subsections (a) and (b). Subsection (a), which is not relevant for the
purposes of the present application, deals with the withdrawal of a charge by the State
prior to a plea . Such withdrawal does not entitle an accused person to an acquittal. The
second part , which is applicable in the present application , provides as follows :
‘An attorney -general1 or any person conducting a prosecution at the instance of the state or any
body or person conducting a prosecution under s ection 8, may-
(a) ….
(b) at any time after an accused has pleaded, but before conviction, stop the prosecution in
respect of that charge, in which event the court trying the accused shall acquit the
accused in respect of that charge: Provided that where a prosecution is conducted by a
person other than an attorney -general or a body or person referred to in s ection 8, the
prosecution shall not be stopped unless the attorney -general or any person authorised
thereto by the attorney -general, whether in general or in any particular case, has
consented thereto. ’
Again, subsection (b) makes it clear that the power to stop the prosecution after an
accused person has pleaded to a charge, rests solely with the State. See S v Ngubane
1985 (3) SA 677 (A); S v Gumbi and Others 2018 (2) SACR 676 (SCA) para 10. It also
makes it clear that the court can only return a verdict after the State has exercised its
exclusive right to stop the prosecution. There is nothing in the Act that e mpowers the
court to direct the State to either withdraw a charge against or to stop the prosecution of
an accused person.
1 In terms of section 45 of the National Prosecuting Authority Act 32 of 1998, attorney -general should be
understood to mean the National Director of Public Prosecutions.
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[7] I am therefore satisfied that it would be incompetent of this court to grant the
relief sought in prayer 1 of the main application . The relief sought in prayer 2 is
conditional upon the grant of the relief sought in prayer 1. Put conversely, the court can
only acquit an accused person who has pleaded to a charge if the State, in the exercise
of its discretion, has stopped the prosecution. Mr Roux readily conceded, correctly in my
view, that the prosecution of an accused person is the prerogative of the State.
[8] I now proceed to deal with the question of whether there is justification for the
grant of the declaratory order in accordance with s 172(1) (b) of the Constitution. Section
172(1) (b) permits the court to grant an order that it considers to be just and equitable in
the given circumstances , when dealing with a constitutional matter . It was thus
contended that the just and equitable order would be to declare that Mr Zuma and
Thales would not receive a fair trial if their prosecution were allowed to proceed in the
face of the deaths of Me ssrs Pierre M aynot and Allain Th étard. It is common cause that
Mess rs Maynot and Th étard died on 31 December 2020 and 5 September 2022,
respectively. It was contended on behalf of both Mr Zuma and Thales that without the ir
evidence , both Mr Zuma ’s and Thales’ s right to a fair trial would be severely prejudiced.
In support of their case s, both Mr Zuma and Thales relied on s 35(3)(i) of the
Constitution , which provides that every accused person has a right to a fair trial , which
includes the right to adduce and challenge evidence.
[9] It is not in issue that at the times relevant to the charges levelled against Mr
Zuma and Thales, Messrs Maynot and Thétard were employees of Thales. Mr M aynot
was the director of Thales from its incorporation on 21 May 1996 until 1 April 1998. On
24 April 1998, he was appointed as the Chief Executive Officer of African Defence
Systems (Pty) Ltd , another entity which features prominently in the State’s case against
Thales. He again served as Thales’ s director from 1 October 2002 through to 10
December 2010 . Mr Th étard, on the other hand , served as Thales’ s director from 1 April
1998 through to 30 January 2002. In support of its case , Thales alleged in its founding
affidavit that the importance of Messrs Thétard and M aynot in the criminal trial against
Thales is unquestionable. They are the only individuals (so it was argued) that would be
5
able to testify on behalf o f Thales and also to assist Thales in challenging any evidence
led by the State against it. When joining issue , Mr Zuma reiterated in paragraph 59 of
his founding affidavit that the deaths of the two material witnesses have a similar or
equal effect on the evidence necessary to convict him. I will revert to the State’s answer
in due course.
[10] In the papers, the parties spent a considerable amount of time on the issue of
delay in the prosecution of Mr Zuma and Thales. It is common cause that there has
been a considerable delay in the prosecution of both Mr Zuma and Thales. However, in
the light of the view I take of this matter , I do not consider it appropriate to engage in the
exercise of attributing blame to any party for the delay. I am satisfied that sufficient facts
have been presented to the court to consider whether Mr Zuma ’s and Thales’ s rights to
a fair trial will be severely prejudice d, as contended, if the State is allowed to continue
with the prosecution in the face of the death s of Mess rs Maynot and Th étard.
[11] In support of their contention for and against the grant of declaratory relief , both
the State and the accused relied on Bothma v Els and others .2 The facts in Bothma can
be summarised as follows. The appellant, Ms Bothma , who was 51 years old at the
time, had instituted criminal proceedings in the magistrate s’ court against the
respondent , Mr Els , for a rape that had taken place 39 years before , when Ms Bothma
was a 13 -year-old schoolgirl. While awaiting trial , Mr Els approached the high court for
an order permanently staying M s Bothma’s private prosecution on the basis that the
undue delay in instituting criminal proceedings amount ed to an unfair trial. The high
court found in his favour and permanently stayed his prosecution. Aggrieved, Ms
Bothma approached the Constitutional Court directly, challenging the decision of the
high court.
[12] When finding for Ms Bothma, t he Constitutional Court critici sed the high court for
having given consideration only to three factors , namely, the length of the delay, the
2 Bothma v Els and others [2009] ZACC 27; 2010 (2) SA 622 (CC) ; 2010 (1) SACR 184 (CC); 2010 (1)
BCLR 1 (CC) (Bothma ).
6
reasons for the delay , and the trial prejudice caused to Mr Els by the delay. The
Constitutional Court made a very crucial observation : it is not only the interest s of the
accused person that have to be born e in mind when considering fair trial right but also
the interest s of the society.3 I am of the view that in a request that will result in the
acquittal of an accused person without the production of evidence , in a matter of such a
magnitude, the societal interest is but one of the factors that the court should view in a
serious light. The Constitutional Court further held that a factor that is of central
significance should always be the nature of the offence.4 It proceeded to say :5
‘The more serious the offence , the greater the need for fairness to the public and the
complainant by ensuring that the matter goes to trial. ’
It was correctly conceded in argument that in order for Thales to succeed, it had to
advance exceptional facts in support of its case. A court can only shut the door to the
prosecution if it is satisfied that the continued prosecution will cause both Mr Zuma and
Thales irreparable or insurmountable trial prejudice. Regarding the terms irreparable or
insurmountable trial prejudice , the Constitutional Court remarked as follows:6
‘Irreparable prejudice must refer to something more than the disadvantage caused by the loss of
evidence that can happen in any trial. Thus, irretrievable loss of some evidence, even if
associated with delay, is not determinative of irreparable trial prejudice. Irreparability should not
be equated with irretrievability. Clearly, potential witnesses who have died cannot be revived.
Documents that have gone permanently astray may not be capable of recreation. Irreparability
in this context must therefore relate to insurmountable damage caused not to sources of
testimony as such, but to the fairness and integrity of a possible trial. Put another way, to say
that the trial has been irreparably prejudiced is to accept that there is no way in which the
fairness of the trial could be sustained .’
[13] There are two issues raised by the State in response to Thales’ s case that
require consideration. Firstly, the State disputed Thales’ s contention that without the
evidence of Messrs Th étard and Maynot, Thales would not be able to adduce its
evidence or challenge the State’s case. In amplification , the State contended that
3 Ibid para 41.
4 Ibid para 77.
5 Ibid.
6 Ibid para 68.
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Messrs Shaik and Driman and Ms Guerrier were available to assist Thales in its
defence. In reply , Thales contended that both Mr Driman and Ms Guerrier would be of
no assistance to Thales because they did not have first -hand knowledge of the events
surrounding the offences charged. Thales further contended that the calling of those
witnesses would require Thales to waive its rights to legal privilege and added that in
any event, the evidence of Mr Driman and Ms Guerrier would have no probative value.
[14] Firstly, it is clear from the above that there is a dispute regarding the availability
of Messrs Shaik and Driman and Ms Guerrie r as witnesses for the defence , which
cannot be decided on the papers. Given the fact that this matter is to be decided on the
papers, it is my view that that dispute should tip the scales in favour of the State.7 A
second dispute relates to the value to be attached to the evidence of Mr Driman and Ms
Guerrier, if they are called as witnesses. The argument that the evidence of these
witnesses would have no probative value is , in my view , speculative . It has been held
that it is not sufficient for an accused person applying for a permanent stay to rely on
hypothecated prejudice. It must be actual significant prejudice.8 The actual position
regarding the value to be attached to the evidence sought to be adduce d by Thales will
only be known onc e evidence has been presented. The question w hether there will be
trial prejudice which might result in Thales not receiving a constitutionally fair trial is a
matter for the trial court, or at least for assessment as and when it arises, if it does
arise. Whether the right to a fair trial is infringed, is the matter best decided by the trial
court.9 I might just add that the standard of proof in criminal and civil cases is
completely different. There is no duty on an accused person to prove his or her
innocence , instead it is the State that bears the onerous duty to prove the guilt of an
accused person beyond reasonable doubt.10 All that will be expected of Thales at the
trial will be to advance a version that is reasonably possibly true.11
7 Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
8 Sanderson v Attorney -General, Eastern Cape [1997] ZACC 18; 1998 (2) SA 38 (CC); 1998 (1) SACR
227 (CC); 1997 (12) BCLR 1675 (CC) (Sanderson ) para 38.
9 Key v Attorney -General, Cape Provincial Division, and another [1996] ZACC 25; 1996 (4) SA 187 (CC);
1996 (2) SACR 113 (CC) 1996 (6) BCLR 788 (CC) para 13.
10 Ngcobo v S [2025] ZASCA 12 para 10.
11 S v V 2000 (1) SACR 453 (SCA) ; [2000] 2 All SA 86 (A) para 3.
8
[15] The second point raised by the State which I consider to be of vital importance
relates to the stance now taken by Thales, vi s-a-vis the stance it took in its application
for the permanent stay of prosecution, regarding the availability of Mr Th étard as its
witness . In the permanent stay application in November 2018 , Thales alleged that Mr
Thétard was not prepared to assist it in any way.12 He was not prepared to return to
South Africa or to testify in South Africa or any other forum should a trial take place. In
support of its case, Thales filed an affidavit deposed to by Mr Th étard dated 11 March
2009.
[16] In the present application , Thales has now adopted a different stance altogether.
It now states that had Mr Th étard been alive, he would have been an invaluable witness
for the defence. In response to the State’s answer, Thales missed the point completely
and focused its attention on the assertions made by the State in reply , regarding Mr
Thétard’s credibility as a witness . That, in my view , is beside the point. It is not the State
that seeks a declaratory order. It is Thales. The duty is on Thales, not the State, to
persuade the court that without the evidence of Mr Thétard, Thales will not receive a fair
trial. In doing so, it would have been expected of Thales to , at the very least, indicate to
the court that at a certain point in time, Mr Th étard changed his mind and undertook to
assist Thales in its case. Without such evidence, one is tempted to conclude that Thales
conveniently decided to move the goalpost in order to bolster its case .
[17] Regarding Mr Maynot it was contended on behalf of the state that he was not a
central actor in the events giving rise to the charges against Thales. It is common
cause that he was not an officer or employee of Thales between April 1998 and the third
quarter of 2000 when most of the events occurred. As aforesaid he only represented
Thales before April 1998 and thereafter, late in the year 2000 onwards. It appears to be
common cause between the parties that he testified in Mr Shaik’s trial. Mr Roux took
issue with the state’s suggestion that it is up to Thales to introduce the evidence of Mr
Maynot tendered in Mr Shaik’s trial. Regard being had to the facts at my disposal, it
12 See S v Zuma and another and a related matter 2020 (2) BCLR 153 (KZD) for the permanent stay
application.
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would in my view be speculative to make a factual finding on the value of Mr Maynot’s
testimony that was presented at Mr Shaik’s tri al. At this stage of the proceedings there
are too many factors this court will have to speculate about which in my view should
best be left for consideration by the trial court.
[18] In Sanderson the court held:13
‘Barring the prosecution before the trial begins… is far -reaching. Indeed it prevents the
prosecution from presenting society’s complaint against an alleged transgressor of society’s
rules of conduct. That will seldom be warranted in the absence of signifi cant prejudice to the
accused. ’
On facts presented to court , I am not persuaded that it was sufficiently established that
Thales will suffer irred eemable, irreparable , or insurmountable prejudice if the State
were allowed to continue with the prosecution , in the face of the deaths of Messrs
Thétard and Maynot. The court seized with the matter has a duty to consider all the
evidence before it, including the non -availability of defence witnesses before returning a
verdict. I am not persuaded either that Mr Zuma’s right to a fair trial will be prejudiced by
the non -availability of Messrs Th étard and Maynot. There is no justification for the grant
of the order sought by Mr Zuma in the alternative in accordance with s 172(1) (b) of the
Constitution.
[19] I therefore make the following order:
1. The application by both Mr Zuma and Thales is dismissed.
2. The matter is adjourned to a holding date on 4 December 2025 .
13 Sanderson para 38.