One crucial question about the corruption trial of Schabir Shaik in the Durban High Court hangs ominously in the background: if Shaik is found guilty, will Deputy President Jacob Zuma be charged?

Clearly, the question need be asked only if a guilty verdict is returned. Yet the decision is so important to the future of SA’s politics, even the chance it may come to pass means the factors involved in such a decision may not be ignored.

In fact, members of the Shaik camp have often argued that the case against Shaik himself is simply a stepping stone in a politically motivated campaign to achieve just this end. This is so much so, that there was some argument in the Shaik camp last week following the decision by Shaik’s legal representative, Francois van Zyl, to oppose the public transmission of the closing arguments in the case, which have been taking place over the past week-and-a-half.

Van Zyl opposed the application on behalf of Shaik, apparently simply on reflex. But other members of his team wanted the closing arguments amplified, especially after it became apparent that Zuma’s name appeared more prominently in the state’s assessment of the trial than it had before.

The prosecution is in something of a dilemma on the issue. Its case is largely that Shaik was the briber and Zuma the one bribed. Not having both people face these charges simultaneously does legitimately necessitate drawing certain conclusions about Zuma’s actions, despite his conspicuous absence.

It is common knowledge that prosecutors wanted Zuma to be charged, and that they could not see the sense of two separate trials. If Shaik is found guilty, it is certain prosecutors will recommend that Zuma be charged.

What is not clear is whether former National Prosecuting Authority head Bulelani Ngcuka decided against a joint trial simply out of political deference to the deputy president, or whether the decision was based on differences in the quality of the evidence.

One possibility is that before taking on such a high political figure, the prosecution service wanted a “dry run” against Shaik alone to test its witnesses and evidence. Another possibility is that the prosecutors felt the evidence against Shaik was simply that much stronger.

If the second scenario is the case, their own actions are partly to blame as search warrants were issued against Shaik’s property but not against Zuma’s, a decision based almost entirely on political deference.

Another important consideration is that Shaik faces two charges of corruption based on different sets of circumstances and evidence.

The first, count one, involves the long list of “loans” by Shaik to Zuma over more than five years, totalling just more than R1m. The second, count three, involves the “encrypted fax” and the circumstances around that. (Count two involves accounting issues in Shaik’s companies, which do not involve Zuma.)

It is possible to see shades of difference in the quality and strength of the state’s case in the two charges. Despite the media attention on the encrypted fax, with all its echoes of international skullduggery and arms-deal intrigue, this charge is probably the weaker of the two. This has implications for Zuma, because it is the charge in which he is more intimately involved, according to the state’s version of events. Zuma is, after all, named in the fax, as “JZ”, as well as his supposed future function ­ political protection against arms-deal probes. He is named in other documents too, but in almost all these cases Shaik is the one doing the naming.

There is another reason why count three is particularly important for Zuma. In the relationship between the two as sketched by the state, Shaik is a go-between. In this count, according to the state, Zuma is the one bribed, while the briber is French arms company Thales (then Thomson-CSF). Here, Shaik is just the facilitator; Zuma is the actor.

This difference probably does not affect Shaik’s legal culpability should the court find him guilty, simply because SA’s bribery law does not distinguish between main actors and bit players. But the fact is that the lines of blameworthiness and evidence attaching to Zuma seem tighter on the third charge.

The opposite is true of count one; the lines of blameworthiness and evidence attaching to Zuma are weaker, in an absolute sense, which gives him hope of escaping a formal charge even if Shaik is found guilty on this count.

In his closing arguments, Van Zyl made a point this week of saying there was not a scrap of evidence to prove that Zuma knew his financial adviser, Shaik, was using Zuma’s name to advance Shaik’s business interests. (The state challenges this argument.)

Counting against Zuma and Shaik are two things: first, in many ways the case has unfolded extremely well for the state.

The case started with an acknowledgement of most of the payments by Shaik to Zuma. The “scared witnesses”, both secretaries, ended up testifying despite saying earlier on they would not. Financial evidence was exhaustive. Zuma and Thales director Alain Thetard failed to testify on Shaik’s behalf, depriving him of direct evidence in support of his version. And as prosecutor Billy Downer told the court in summing up: “Shaik contradicted his own witnesses, his witnesses contradicted him, and his witnesses contradicted each other.”

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Second, assisting the state is the extremely wide character of SA’s corruption laws. It is not a well-known fact ­ and perhaps if it was, fewer people would attempt corruption ­ but SA’s corruption law is among the most embracing in the world. Some jurisdictions require actual benefit to have been received by the briber: SA does not. Some jurisdictions require the person bribed to be capable of committing the acts that the briber seeks; SA does not.

In SA, broadly speaking, the act of bribery can, in certain circumstances, be constituted simply by a meeting of minds. For example, if you agree with the traffic inspector to pay a certain amount if he passes you in your driving test, you can still be found guilty, even if you don’t pay, even if you passed the test without his help anyway, and even if he could not have done anything to help you.

In short, despite some possible escape hatches, the way the trial has unfolded and the nature of SA’s bribery law mean that the trial has lived up to its hype as a major cause of concern for both Zuma and government. As Judge Hillary Squires said on closing the marathon case: “Like all rivers eventually reach the sea, we have reached the sea.”

Cohen is editor at large. Jenvey is KwaZulu-Natal correspondent.

With acknowledgements to Tim Cohen, Nicola Jenvey and the Business Day.