Editorial Comment

The trial of Durban businessman Schabir Shaik has been full of twists and turns, but yesterday saw a fork in the road decisively taken. Judge Hillary Squires had decided that the "encrypted fax" is admissible evidence, despite the fact that its author would not present himself to testify about its veracity. This short fax is among a small pile of other documents and testimony that the defence team argued was not admissible on the basis that it was hearsay evidence.

The hearsay evidence rule allows for certain limited exceptions, and Squires has judiciously opened this door slightly in order to allow the evidence to be heard. Not to second-guess the judgment, but in a nonjudicial sense, it would have been a great pity if this evidence was not permitted to be a subject of arm-wrestling between the defence and prosecution in the hearing.

Although much new evidence has been presented during this long trial, the significance of a document that has been in the public domain for some time, the encrypted fax, is hard to underestimate. Apart from Shaik's involvement, it is one of the critical documents that implicates or at least apparently involves Deputy President Jacob Zuma explicitly in the case. The fax, as it is now well known, apparently suggests that the French arms company Thales (then called Thomson-CSF) considered giving Zuma R500000 a year to lobby in favour of the company. The fax suggests that this agreement was reached shortly after it became apparent that the arms deal was likely to be the subject of extended investigation and argument. On the face of it, the fax is a crucial link between the Shaik case and Zuma, elevating the trial from a dispute about corruption to a factor in our future political leadership.

Although Shaik would have preferred to have the document excluded, it is in a way not entirely negative for Shaik (and Zuma for that matter) that the fax has now been admitted. Zuma has long denied involvement in bribery, and Shaik has pleaded not guilty to the charges. Zuma has expressed his irritation at the fact that while his name is constantly mentioned in relation to the case, the fact that he is not charged means he will struggle to clear his name.

Both Shaik and Zuma now have a chance to demonstrate their innocence explicitly. Without the admission of the fax, they might have escaped responsibility because of the technical requirements of the law. But in the court of public opinion an opportunity to demonstrate their innocence would have been lost.

With acknowledgement to the Business Day.