The legal team for French arms’ company Thales argued on Tuesday that South Africa’s former prosecutions’ chief, Shaun Abrahams, relied on, among other things, the wrong sections of the law when deciding to reinstate charges against its client.

Advocate Anton Katz, SC, also said that when Abrahams still held the post of national director of public prosecutions (NDPP), he was “hell-bent” on prosecuting the corporate and had made an irrational decision when doing so.  

Katz was appearing before a full bench at the Pietermaritzburg High Court, outlining the reasons why he was seeking a permanent stay of prosecution in the State’s graft case against Thales.

As he had done on Monday afternoon, Katz said charges were reinstated against Thales as an “add-on” in the graft case against former president Jacob Zuma, which was unconstitutional.

“We (Thales) are an add-on, we are some flotsam in the waves, it is not constitutional,” he said, adding that Thales and Zuma had to be viewed independently of one another.

According to Katz, one of the issues at stake in the decision to reinstate charges against Thales was prosecutorial power and how it had been misused.

When Abrahams decided to reinstitute charges in 2018, he had “a duty to make a different original decision” for the reinstatement, said Katz. Instead, Abrahams had decided to stick with the "status quo" and decided to charge Zuma and Thales together, as had happened in 2005. 

Justice Esther Steyn interjected, saying Abrahams’ decision would have been based on the merits of the case, any exceptional reasons for reinstating charges and that ultimately, these would “constitute other circumstances that would impact on the original decision”.

Withdrawal of prosecution was not the same as stopping prosecution, she said.

Thales is accused of paying Zuma bribes via his former friend and financial advisor, Schabir Shaik, in relation to South Africa’s multi-billion rand arms deal of 1999. 

Shaik was convicted for corruption and fraud in 2005 and sentenced to 15 years imprisonment. His bid at the Supreme Court of Appeal failed as did his approach to the Constitutional Court. 

Zuma, accused one, is facing one count of racketeering, two counts of corruption, one count of money laundering and 12 counts of fraud.  

Thales, accused two, is facing one count of racketeering, two counts of corruption and one count of money laundering.

The court heard reasons from Zuma’s legal team on Monday as to why it was seeking a permanent stay of prosecution.