'Witnesses can be compelled to talk'

Durban businessman Shabir Shaik is likely to face enforced cross-questioning by the Scorpions in connection with unexplained transactions involving both former transport minister Mac Maharaj and Deputy President Jacob Zuma.

This comes after a crucial court decision handed down in the Durban High Court that circumscribes the right against self-incrimination.

Shaik is a key party in two separate Scorpions investigations. These involve allegations that Zuma solicited a bribe in connection with government's R50bn arms procurement exercise and that a series of payments was made to Maharaj before and after the former minister stood down from office in 1999.

On Friday, Durban High Court Judge Ron McLaren handed down a crucial decision in a trial within a trial dealing with Section 28 of the National Prosecuting Authority Act. This allows the Scorpions to insist on cross- questioning witnesses on condition the information supplied is not used in a subsequent trial.

The decision is a huge boost for the Scorpions' investigations and could further complicate the positions of both Maharaj and Zuma. The intention of the legislation is to compel unwilling witnesses to provide information under oath, which is considered by the Scorpions to be crucial to investigations against organised crime and corruption.

Attorney Reeves Parsee, who was acting for Shaik, argued that his client was a suspect in the case and that the section constituted statutory duress to disclose information to the state which infringed a suspect's constitutional right to remain silent.

McLaren found that suspects do in general have the right to remain silent and that Section 28 does indeed conflict with the constitution. But he said in view of the "insidious nature of corruption" it was understandable that extraordinary procedures and powers were necessary to eradicated it.

Shaik said he was "disappointed" and had not yet decided whether or not to appeal.

Following the judgment, he anticipated having to answer questions on the "Mac matter" in terms of the same section.

With acknowledgements to Tim Cohen and the Business Day.