Judge to rule on admissibility

Durban: The State was expected to continue its argument over the admissibility of the last seven documents it wishes to hand in as evidence against Durban businessman Schabir Shaik today.

From the first mention, by forensic auditor Johan van der Walt, of a strongroom filled with more than 50 000 pieces of paper, the two legal teams have managed to cut down the disputed documents to seven - something the leader of the State's team Billy Downer SC said was "quite remarkable".

The most important piece of evidence to be argued over before Judge Hilary Squires in the Durban High Court this week is an encrypted fax.

The State alleges that the fax formalised a bribe agreement between Shaik, French arms company boss Alain Thetard and Deputy President Jacob Zuma.

According to this agreement Zuma gave an "encoded declaration" showing his willingness to protect Thomson against investigation of the arms deal and to give his support to their future business ventures.

In return, the documents say, they agreed to pay him two annual instalments of R500 000 each.

After two years, the agreement indicates, Zuma was to receive dividends from African Defence Systems' shares.

The fax forms the basis of a charge of corruption against Shaik to which he has pleaded not guilty.

Shaik's counsel, Francois van Zyl SC, has objected to this document being admitted into evidence.

He is expected to argue that it constitutes inadmissible hearsay evidence as its author, Alain Thetard, was not called as a witness.

Thetard has admitted to writing the fax, but said in a later affidavit that it was just a few thoughts and that he had discarded the piece of paper.

Downer on Friday started explaining the legal basis for the prosecution's insistence that the fax can be handed in as admissible evidence.

In short his argument was that there is a legal exception to the hearsay rule.

This exception says that where there was a conspiracy, statements made in execution of it by a co-conspirator can be used as admissible evidence against the other party.

He told the court that it was not a legal requirement for the other co-conspirators to be charged.

He said that Shaik had admitted that there had been a meeting between him, Thetard and Zuma.

He had also admitted that there had been a series of letters exchanged between them after the meeting.

Downer explained that what is left for the State is to prove why all of this happened.

Shaik said they were talking about a donation for the Jacob Zuma Education Trust.

The State alleges that they were talking about a bribe.

A number of the other disputed documents allegedly link Shaik and Thomson to what the State says were "continuing efforts" to seek political influence, approval or intelligence in relation to business.

This, the State is expected to argue, would support evidence led about the alleged "general corrupt relationship" between Shaik and Zuma.

Another of the disputed documents, at this stage still sealed, allegedly tells of Malaysian businessman David Wilson's dealings with Shaik and Zuma.

Judge Squires's answer to this application is likely to have a major impact on the conduct of the rest of the trial.

Legal argument is expected to continue all day today.

With acknowledgements to Estelle Ellis and the Cape Times.