Publication: Sunday Independent
Issued:
Date: 2006-10-01
Reporter: Jeremy Gordin
Reporter:
|
Bench Reserves Judgment in Shaik Appeal |
Legal
team may try to take case to constitutional court, while admissibility of
encrypted fax remains a matter of contention
This week a full bench
of the supreme court of appeal (SCA) reserved judgment in the appeal against
conviction and sentence, on two charges of corruption and one of fraud, by
Durban businessman Schabir Shaik and 11 of his companies.
The
two-and-a-half days of hearings (though the matters were set down for five)
devoted to both Shaik's criminal and civil appeals were eerily low key - given
that Shaik's conviction on June 2 last year resulted in the firing of Jacob Zuma
from the deputy presidency on June 14 and his being charged with corruption and
fraud on June 20.
But at least eight significant
points seemed to have emerged from the proceedings this week. Most of
these depend on the obviously dicey exercise of accurately forecasting what the
five SCA judges are going to find when they deliver judgment in the next few
weeks.
But proceedings in the SCA are different to those in lower courts
because all the "interaction" is between judges and (usually senior) advocates -
and in general, therefore, SCA judges openly discuss their difficulties,
concerns and thinking.
From the discussions initiated and points made by,
and the reactions of, the judges:
It looks as though Shaik's conviction
on count one of the charges levelled against him is going to be upheld. This
count related to various occurrences that trial judge Hilary Squires found to
have proved the existence of a "generally corrupt relationship" between Shaik
and Zuma.
It seems that Shaik's conviction for fraud (count two), related
to the writing off of payments to Zuma so as to hide them, will also be
upheld.
It appears that count three - a charge of corruption, related to
soliciting a R500 000 bribe from French arms manufacturer Thint for Zuma - will
not be upheld because at least three of the judges were clearly unhappy about
the "admissibility" of the notorious encrypted fax on which the charge was
mainly based.
The judges, with one possible exception, did not seem to
think that Shaik had received disproportionate sentences (15 years' jail in
total) from Squires on June 8 last year.
It is possible that Shaik may
opt to challenge his conviction on count one in the constitutional court,
because the finding of a "generally corrupt relationship", and the way in which
the relationship was proved, has constitutional implications.
It is
unlikely, however, that Shaik could challenge his conviction on count two
(fraud) in the constitutional court - and Shaik was refused permission by both
the high court and the SCA to appeal against his sentence (three years) on count
two.
In other words, if Shaik's conviction on count two is upheld, he
will have to go to jail immediately.
It is "good" for Zuma that at least
three of the judges were unhappy about Squires' "admissibility" of the encrypted
fax.
For, if Shaik's appeal against count three is upheld, it means that
the spectre of corruption related to the arms deal would
most likely fall away from any future charges that may be brought against the
former deputy president *1.
With acknowledgements to Jeremy Gordin and Sunday Independent.
*1 And, by implication, the Two Thints.
The blame
for this cock-up can be squarely laid at the feet of the Two Donkies, Maduna and
Ngcuka.
Bring me my machine gun.