Durban: The state has produced nothing to link Durban businessman Schabir Shaik to an encrypted fax setting out an alleged plot to bribe Deputy President Jacob Zuma.

This was Shaik's counsel Francois van Zyl SC's argument in the high court here yesterday when he opposed a state application for the court to allow them to use the fax as evidence.

Shaik has pleaded not guilty to two charges of corruption and one of fraud.

Van Zyl said there was nothing before the court to show Shaik knew about or was involved in the drawing up of the fax.

He said up to now the prosecution's case was that Thetard met with Shaik in September 1999 and again with Shaik and Zuma in March 2000 and it was agreed and sanctioned that Zuma would be paid a bribe.

He further said it was the state's case up to now that a mechanism of payment of the bribe was agreed on with Shaik and there was correspondence in an effort to get the money.

Van Zyl added it was never the case that Thetard had written the encrypted fax and faxed it to Paris.

The state is alleging this now, as the law allows it to use instructions given by one person who is party to a conspiracy against another conspirator.

Van Zyl said they believed in any event that the fax was not a set of instructions, which could make it admissible in law, but a narrative of what happened.

He argued that if one looks at the facts adduced by the state so far, the court only knows Thetard wrote the fax. He said the evidence of Thetard's former secretary Sue Delique, who said she had typed and sent it to Paris, was "so suspect" it could not be accepted.

Delique told the court she was handed a note to type and fax to Paris when Thetard returned from his meeting with Shaik and Zuma. When she left the company in April 2000, she "grabbed" documents from her desk. The hand-written version of the fax was among these.

After the Scorpions found she had the document, she said she had lost it. But when it became apparent she would need to give evidence in any event, she found it again.

Van Zyl pointed out that even though Delique said she had faxed the document to Paris on the afternoon of March 17, 2000, Thomson's phone records show no faxes were sent then.

He also said despite searches in both Mauritius (Africa headquarters of Thomson) and Paris, the fax or copies were not found.

"This is a strong indication that the document was never sent," Van Zyl said.

He also referred the court to Shaik's reaction when he heard about Zuma's Nkandla development, as evidence that Shaik was oblivious of any bribe.

The project builder, Eric Malengret, told the court that Shaik said to him: "Where does the deputy president think he is going to get the money? Does he think money grows on trees?"

The trial continues. Mr Justice Hilary Squires is presiding.

With acknowledgements to Estelle Ellis and the Cape Times.