Judge will rule on admissibility of crucial documents as the defence begins its case

This week will be a watershed in the trial of corruption accused Schabir Shaik and Deputy President Jacob Zuma.

Not only will Judge Hillary Squires rule on the admissibility of seven documents that could sink the embattled Nkobi Group boss — and Zuma — but the defence will now have to call witnesses to rebut the 13 weeks and thousands of pages of prosecution evidence.

The case is clearly taking its toll on Shaik. On Tuesday the judge adjourned the case for an effective two days because of Shaik's ill-health. An ashen-faced Shaik provided a medical certificate saying he was suffering from chest pains caused by high blood pressure and a respiratory tract infection.

After his return to court on Thursday, Shaik spent his time constantly taking notes during lead prosecutor Billy Downer and assistant Anton Steinberg's admissibility arguments.

Still looking haggard, Shaik constantly sipped from a glass of juice, with a box of medication close to his right hand and a mesh bag of personal items in front of him. His brothers Mo and Yunus, who attended court on Tuesday, were absent later in the week, while his bodyguards, usually present in court, only accompanied him to and from the hearing.

And, if the judge rules that the now-notorious encrypted fax allegedly soliciting a R1-million bribe for Zuma is admissible, Shaik will be forced to take the witness stand.

To judge by comments this week by his defence counsel, Francois van Zyl, that is an outcome Shaik's legal team wants to avoid. Van Zyl argued that the fax — allegedly sent by former Thomson (now Thint) South African boss Alain Thetard to his superior, Jean-Paul Perrier — should be thrown out.

If the fax was accepted, "the accused will then have to go to the witness box to defend himself against hearsay evidence", Van Zyl said. He added that "it could never be in the interests of justice that the accused is forced to go to the witness box".

Early in the trial Shaik submitted a not-guilty plea with a list of admissions and Van Zyl has repeatedly, in cross-examination, spoken of what his client "will tell the court" in providing alternative explanations for prosecution evidence.

Who else the defence will call remains a closely guarded secret: Van Zyl and instructing attorney Reeves Parsee have both repeatedly declined to name defence witnesses.

Parsee said on Friday that the defence's choice of witnesses would be determined by which way Judger Squires went in his admissibility judgement.

Last weekend Van Zyl travelled to France to ask Thetard — whom he has described in court as "not an honest person" — to return to South Africa and give evidence for the defence. Thetard refused. Van Zyl then asked Thint for a list of staff who could give evidence, but is still waiting for a response.

Thetard was originally charged with corruption and perjury, but struck a deal with the prosecution in return for the charges against him being withdrawn. However, he subsequently refused to give evidence in South Africa.

Greg Johnson, a forensic accountant retained by Shaik's team, is likely to be called to contest the 256-page forensic report by KPMG auditor Johan van der Walt. In the absence of Thetard, the only person who can corroborate Shaik's version of events — that he lent Zuma R1.2-million as a friend, not to buy the second-most powerful man in South Africa — is Zuma himself.

However, there is little chance that the defence will put Zuma on the stand. Doing so would put the man who may still become president of South Africa in a humiliating position. Zuma would have to explain, in minute detail, his relationship with Shaik and the interventions the state claims he made in return for cash.

He would also be forced to discuss his inability to live on a ministerial salary — and a lavish lifestyle that has seen him portrayed as a man in a cheap suit with a rubber chequebook.

The other critical disputed document that the judge will rule on is the sealed affidavit submitted by Renong employee David Wilson. The affidavit claims Zuma intervened on Shaik's behalf in 1997 at the time of the Point Waterfront deal, trying to intimidate Renong into working with Shaik and not the local partner it had chosen.

Wilson has refused to testify because of political pressure in Malaysia, and Van Zyl is arguing that his affidavit should be barred from evidence. But again, if it is accepted, Zuma is the only person who can give an explanation that corroborates the defence version.

Both Zuma and Shaik have everything to lose if the disputed documents are accepted. But if the fax and the other documents are not admitted as evidence, the prosecution will find it much harder to secure a conviction.

With acknowledgements to Paddy Harper and the Sunday Times.