Publication: Business Day Issued: Date: 2006-12-19 Reporter: Ernest Mabuza Reporter:

Shaik Takes Constitutional Route to Avoid Jail

 

Publication 

Business Day
Date 2006-12-19

Reporter

 Ernest Mabuza

Web Link

www.businessday.co.za

 

Lawyers for convicted Durban businessman Schabir Shaik yesterday lodged papers in the Constitutional Court appealing his corruption and fraud conviction and jail sentence.

Shaik had 14 days from the overturning of his appeal in the Supreme Court of Appeal to lodge a constitutional challenge.

An application for condonation of late filing, explaining why his lawyers had missed the deadline, was also filed yesterday.

Papers before the court argue that, by not being charged jointly with former deputy president Jacob Zuma and French arms company Thint, the National Prosecuting Authority (NPA) had infringed on Shaik’s right to a fair trial.

In his founding affidavit, Reeves Parsee, Shaik’s attorney, claims that the conduct of former public prosecutions director Bulelani Ngcuka in not charging Shaik with Zuma and Thint was fundamentally unconstitutional *1.

It resulted in Shaik and his companies not being afforded the same protection and benefit of the law as his alleged co-conspirators.

Shaik was found guilty last year on two counts of corruption and one of fraud.

He was found guilty of seeking bribes from Thint on Zuma’s behalf in order to secure protection from a probe into SA’s multimillion-rand arms deal. He was also found guilty of paying for Zuma’s expenses in return for Zuma’s backing in business deals. Shaik was handed a 15-year jail term.

Zuma was dismissed as deputy president of SA after the trial, although he remains the deputy president of the African National Congress.

He was later charged with corruption, but the case was struck from the roll.

Shaik’s appeal was dismissed by the full bench of the Supreme Court of Appeal last month.

Papers before the Constitutional Court argue that the NPA’s approach was discriminatory to Shaik and his companies because they were prosecuted separately from the remaining co-conspirators ­ particularly Thint. Thint and Zuma would now be tried together.

The decision not to charge all parties had the effect of excluding relevant evidence from the trial.

“The NPA thus failed in their duty to place all material evidence before the court, to consider all relevant material (including that beneficial to the accused) and to assist the court in reaching a just verdict,” Parsee said.

Shaik said the real prejudice he suffered was that he could not compel Zuma to testify at the Durban proceedings.

“In Ngcuka’s own words, Zuma was at that stage ‘a potential accused’ and Zuma’s legal representatives would have advised him not to testify to preserve his rights. Zuma would have exercised his right against self-incrimination.”

Shaik also said the Durban High Court and the Supreme Court of Appeal made findings of wrongdoing amounting to criminal conduct on the part of Zuma and Thint in absentia.

He said the two courts also relied on those findings to reaffirm his conviction and sentence.

With acknowledgements to Ernest Mabuza and Business Day.


*1       It's a long shot, but as an experienced legal expert had to say yesterday :
"A successful appeal on the basis that the three should have been charged together would not amount to an acquittal on the merits and would throw the door open to the joint prosecution of the three parties concerned, which is what you [Richard Young] have been vociferously calling for all along. Perhaps not such a bad result?"
My response is as follows :
"An excellent result it will be indeed.
Seeing that the NPA has to go through all the hoops again for JGZ and TTT, it might as well consider the ordeals in front of HGS and the SCA a dry run for the big one.
It will also be my absolute pleasure watching both Schabir and Pierre Moynot on the witness stand again, both in evidence-in-chief and cross-examination.
For the media it will also be manna from heaven.

Maybe Dr Penuell Maduna and Adv Bulelani Ngcuka will also be charged for something.

Is acute foolishness a crime or a disease?