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Thales case unlawful as NDPP relied on incorrect section in law, court told

French arms firm Thales has argued that former prosecutions boss Shaun Abrahams relied on the incorrect provision in law to authorise the case against the company, which renders the decision unlawful.

FILE: Former National Director of Public Prosecution Shaun Abrahams. Picture: Christa Eybers/EWN

JOHANNESBURG – French arms firm Thales has argued that former prosecutions boss Shaun Abrahams relied on the incorrect provision in law to authorise the case against the company, which renders the decision unlawful.

Thales and former President Jacob Zuma have launched an application in the Pietermaritzburg High Court for a permanent stay of prosecution.

The case emanates from the controversial arms deal.

The argument on Tuesday morning has centred on the powers of the National Director of Public Prosecutions and the powers in law to institute and conduct prosecutions.

Thales's Advocate Anton Katz set out the approach to their challenge of Abrahams' decision.

“Abrahams could have had 10 good reasons, intertwined with unlawful acts, but when he exercises power, and he does, he must have the power and he must know what power he’s exercising. If he doesn’t, the power he’s exercising, it’s an unlawful exercise of power.”

Katz said the respondents were now relying on a section of the NPA Act for Abrahams’s decision.

“We submit that’s wrong as a matter of law. But before you get to what’s wrong or right, they’re not entitled to run on the act because they’re bound by 179.2 reliance's by advocate Abrahams for his decision making power. That’s what he said when he made the decision on the basis of this matter and that is what the respondents are bound by.”

WATCH: Thales gives arguments for dropping Zuma corruption case

Thales also argued that former prosecutions boss Mokotedi Mpshe’s decision to withdraw the criminal case against company remained lawful and binding.

Advocate Anton Katz told the court that the public should be able to rely on and trust decisions made by the NPA.

“So, in 2009 when Mpshe decides to withdraw against Thint, the first starting proposition is that Thint, Thales should be able to rely on decisions made by the NPA. The DA challenges Mpshe’s decision with Zuma. The DA did not challenge Mpshe’s decision on Thales.”

He argues that it was on those grounds that the decision to prosecute Thales together with Zuma was irrational.

“Therefore, in October 2017, when the decision was set aside on Mpshe versus Zuma, Mpshe versus Thales decision stood and was binding. According to the Freedom Under Law case, the only way the prosecution could recommence, would be for a different prosecution case to be made.”

The company, like Zuma, want criminal charges against it dropped.