Thousands of documents have been placed before court in the corruption trial of Durban businessman Schabir Shaik, yet the decision by Judge Hillary Squires yesterday to admit a handful of pages is a severe blow to the defence's case.

Apart from the now infamous encrypted fax, the pages include some of what appears to be the most damning evidence against Shaik thus far.

Publication of one document was prohibited until Squires made a decision on its admissibility. The statement of former Renong Group employee David Wilson was made public yesterday.

It includes a long exposition on the travails of the Point Waterfront Company, in which the Malaysian group intended investing.

The deal never transpired after Renong apparently got cold feet following intervention by Shaik and Deputy President Jacob Zuma.

As the state's case unfolded in Durban, the defence team objected to the admission as evidence of several documents and testimony on the basis that it was, for one reason or another, hearsay.

The fax, for example, was written by Alain Thetard, an employee of French arms company Thomson-CSF (now Thales), but he has not made himself available to testify.

Similarly, the Wilson statement consists of a transcript of a deposition taken by the Scorpions investigation team, but Wilson has since decided not to come to SA to testify in the case.

Consequently, the prosecution had evidence it desperately wanted to place on record before the court, but was unable to produce witnesses who would be able to testify to its veracity.

Prosecutors were convinced the third charge against Shaik, of corruption, would probably have failed if the Thetard fax was not admitted as evidence.

Legally, in certain selected situations, evidence that is technically hearsay can be admitted, and it was on the basis of these technical exceptions that the state sought to admit the evidence.

Prosecutor Billy Downer argued that one of these technical exceptions applied to the encrypted fax. The exception, one of four grounds on which he argued the fax could be admitted, is in legal terminology: "an executive statement made in the furtherance of a common purpose that was a conspiracy."

The terms of this legal precept illustrate how demanding the hurdle is that the prosecutors were attempting to jump.

The "executive statement" requirement burdens the prosecution with demonstrating that the statement was made in the course of actually achieving the execution of, in this case, the corruption.

But even before this, the conspiracy and the "common purpose" — or mutually agreed design to commit a crime — have to have been demonstrated.

In discussing this aspect of the case, Squires said Downer had "exhaustively sifted though a positive mine dump of evidence in search of the nuggets that establish evidence of the case".

On balance, the judge found that sufficient evidence had been discovered.

These included his view that "even before the 1994 elections, Thomson's showed and maintained a tenacious interest in securing government-driven contracts that fell within its multifarious capabilities".

Squires listed a range of other evidence raised during the course of the trail, including the "unsolicited and spontaneous" remark Thetard had made to his secretary that he was at a loss to understand the fuss about bribery.

The detail involved in this review of the evidence, combined with its admissibility, leaves the defence team with a severe weight to lift in order to tip the scales of justice in their favour.

With acknowledgements to Tim Cohen and the Business Day.