Publication: Sunday Independent Date: 2005-05-08 Reporter: Estelle Ellis Reporter:

Even if Acquitted, Shaik's Reputation is in Tatters

 

Publication 

Sunday Independent

Date

2005-05-08

Reporter

Estelle Ellis

Web Link

www.sundayindependent.co.za

 

As Judge Hilary Squires and his assessors consider their verdicts in the corruption and fraud case of Durban businessman Schabir Shaik, things can go very right or very wrong for the suave entrepreneur.

With all the possibilities up in the air for the next three weeks, one thing is certain: there is no chance that Shaik could be found either "a little guilty" or a "little innocent".

But, even if everything goes right for him in the end, Shaik's reputation would not escape tarnishing by the past seven months of trial.

As appeal court Judge Louis Harms said on one occasion: "The whole point about reputation is that, like sanity, it operates as a working assumption: to question it is, in itself, to devalue it."

The best-case scenario for Shaik is that he is acquitted of all charges. He goes back to the plush Nkobi offices down the road from the Durban high court and the whole controversy would be much discussed and eventually fade.

Like dancing the tango, corruption usually involves two people, and Zuma would be able to breathe a little easier as well. For this to happen, Judge Squires must find that there is enough doubt in the state's case, and the law says Shaik must get the benefit of reasonable doubt.

Depending on his judgment, it could mean that Shaik walks out of court cleared of wrongdoing. The second corruption charge against Shaik is the one that involves the greater controversy and is also likely to be the most talked-about part of the judgment.

The state says Shaik solicited a bribe from French arms company Thomson for Zuma in March 2000. In return Zuma, according to the prosecution, agreed to protect Thomson from investigation into the arms deal and lend his future support to the company.

To acquit Shaik, the court would have to find that the fax that ostensibly sets out the bribe agreement cannot be considered a true reflection of the meeting between Shaik, Zuma and Alain Thetard, the Thomson representative. Shaik says he has never seen the fax.

He admits that there was a meeting between himself, Zuma and Thetard, but says it was about a donation to the Jacob Zuma Education Trust - and that this is what subsequent correspondence referred to.

Apart from the obvious celebrations, a straight acquittal might also see the state slapped with a civil suit for malicious prosecution.

This would be unlikely, however, as the state cleared a significant hurdle in the middle of the trial when the defence team did not apply for discharge on the basis that the state's case was so weak that it did not call for a response.

That signified that there was, at least, some form of recognition from Shaik that the prosecution had a case he had to answer.

The worst-case scenario: even though conviction, and a subsequent jail term, can reasonably be construed as the worst thing that could happen to Shaik, an acquittal couched in a certain way might be damaging.

Should the judge find that there is grave suspicion that a corrupt patronage existed between Shaik and Zuma, but that there was not enough proof, Shaik would be in the same boat as his friend.

Zuma was placed in a similar situation when the former director of public prosecutions, Bulelani Ngcuka, said that there was a prima facie case against Zuma but then refused to prosecute. Both would be fighting shadows cast by suspicion. Both know it is a fight that cannot be won.

Financially, a conviction could have disastrous consequences for Shaik. He could face 15 years in prison should his counsel be unable to show substantial and compelling cause to be lenient. The Asset Forfeiture Unit (AFU) has been waiting in the wings, ready to act in case of a conviction.

Should the court find that one of the "fruits" of the corrupt relationship between Shaik and Zuma was that Shaik's Nkobi group of companies won the battle for shares in African Defence Systems and thus got to share the riches of the arms deal, the AFU is likely to ask for millions of rands to be forfeited to the state as the "proceeds of crime".

Even if the possibility of Zuma's being charged is left aside for the moment, a finding against Shaik could be construed as default finding against Zuma as a corrupt patronage would, by definition, involve two corrupt people.

A finding that Shaik had solicited a bribe for Zuma from arms company Thomson might also cast a long shadow over them. At this stage it is an open question whether Zuma would be charged or not. What might or might not have constituted proof in the case of Shaik would not pass muster in the case of Zuma.

As Shaik's counsel, Francois van Zyl SC, pointed out in his closing argument, the court heard precious little about Zuma's state of mind during all of this. The prosecution can be sure that it would not receive any help from Shaik in a Zuma prosecution.

Neither would help be forthcoming from the runaway Frenchman Alain Thetard, who still has some unfinished business with the Scorpions. That might well mean that Zuma would be forever doomed to doubt over the Shaik affair.

With acknowledgements to Estelle Ellis and the Sunday Independent.