Publication: Business Day Weekender Issued: Date: 2006-11-11 Reporter: Karima Brown Reporter: Vukani Mde

Appeal Court Errs In Shaik Judgment

 

Publication 

Business Day Weekender

Date

2006-11-11

Reporter

 Karima Brown, Vukani Mde

Web Link

www.bday.co.za

 

Legal opinion is divided on the implications of the court’s mistake, but there are hints that the bungle might support Zuma’s claims of not having access to a fair trial, write Karima Brown and Vukani Mde

Hilary Squires, the retired high court judge who sentenced Schabir Shaik to 15 years in prison for corruption, says he never found a “generally corrupt relationship” between the controversial businessman and former Deputy President Jacob Zuma.

This is despite the fact that the Supreme Court of Appeal (SCA) attributed the phrase to Squires in its judgment upholding Shaik’s corruption and fraud convictions this week. The confusion suggests strongly that the five SCA judges who listened to Shaik’s appeal bid may not have read Squires’s original judgment convicting Shaik, and may have relied only on news reports which generally but wrongly attribute the phrase to Squires.

This also raises serious questions about the court’s ability to guarantee an accused person’s fair trial rights. According to the constitution and long judicial practice, judges are meant to ignore what has occurred outside their own court and not rely on public perceptions to convict an accused. In repeating a general public confusion about what Squires found against Shaik, the SCA appears to have failed dismally in this constitutional duty.

In the court’s judgment confirming that Shaik’s various companies had to forfeit assets to the state, judge president Craig Howie said:

“Between 1996 and 2002 Shaik and Mr Jacob Zuma engaged in what the trial court (Squires) appropriately called ‘a generally corrupt relationship’ which involved frequent payments by Shaik to or on behalf of Zuma and a reciprocation by Zuma in the form of the bringing to bear of political influence on behalf of Shaik’s business interests when requested to do so.”

This is one of at least two references the court made to the two men’s “generally corrupt relationship”, both times attributing it wrongly to Squires.

This attribution flies in the face of Squires’s judgment, delivered in the Durban High Court in June last year, which makes no mention of a “generally corrupt relationship”. Squires has written a letter to Business Day, The Weekender’s sister publication, pointing out the error.

“If you have never read the judgment delivered in that case, may I suggest that you do so. I can find no such mention of my having made any such comment. If you have already read the judgment, and in it this phrase ­ “a generally corrupt relationship" ­ occurs I would be grateful if you would advise me of the page and line number in which the statement appears,” Squires wrote to the newspaper.

In his letter Squires says it was not possible during the trial to make any finding on the nature of the relationship between the two men, since Zuma was not on trial.

“The only question in that trial was Shaik’s own state of mind when he made the admitted payments to, or on behalf of, Jacob Zuma, namely, whether by doing so, he intended to influence the recipient in the exercise of his official duties. Jacob Zuma’s state of mind when he received these benefits was never an issue, nor was any finding made about it. There was no need for any conclusion regarding the state of affairs between them, nor was there one made,” he wrote.

In his letter Squires attributes the phrase to the prosecution, saying that the court itself never endorsed the state’s characterisation of the Shaik/Zuma relationship.

“To the best of my recollection the phrase in question was used by the prosecutor in one of his pictorial presentations as part of his argument at the end of the trial. It was put into quotation marks by some sub-editor in a report covering the State’s case, and has been mindlessly parroted ever since as a finding by the Court by many of the journalists who have felt the need to write about the ongoing saga. Unless you can indicate to the contrary, please note that I did not make the statement and it should therefore not be attributed to me,” he wrote.

The general public perception that Squires found a “generally corrupt relationship” between Zuma and Shaik has been damaging to both Zuma and Squires. Many members of the public, when articulating their opposition to Zuma’s presidential ambitions, claim that a court found he had a “generally corrupt relationship” with a convicted fraudster.

“The phrase opened the door for people to find Zuma guilty when he had not been charged,” said Aubrey Matshiqi of the Centre for Policy Studies.

It is also arguable that the public furore resulting from the non-existent finding of a “generally corrupt relationship” contributed to Zuma’s sacking by President Thabo Mbeki after the Shaik judgment, and led directly to criminal charges against him days later.

Though Mbeki did not directly quote Squires during his national address firing his deputy, he did invoke the judgment.

“Any actions we may take arising out of Justice Squires’ judgment would arise merely from the fact that a court judgment exists, which our constitution enjoins us to respect. However, the judgment contains some categorical outcomes. Unambiguous as the judgment may be about an assumed unsavoury relationship, (Zuma) has yet to have his day in court,” Mbeki told a joint sitting of parliament.

In an affidavit filed in the Pietermaritzburg High Court ­ where Zuma was eventually charge with corruption ­ national prosecutor Vusi Pikoli also acknowledged that the public clamour for Zuma to be prosecuted following Shaik’s conviction, had contributed to the state’s decision to charge the politician. The case against Zuma was recently struck off the roll after it became clear the state was not ready to prosecute.

Even Zuma’s own supporters have not escaped falling into the trap. Following the SCA’s judgment last Monday, the African National Congress (ANC) Youth League again climbed on Squires, saying the SCA had corrected Squires’s judgment. The trial judge had made “sensationalist statements” from the bench and condemned Zuma without trial, the league said.

But according to Squires’s letter the league, which has cast itself as Zuma’s staunchest defenders, appears to have the wrong end of the stick. The SCA is in fact the first court to use the phrase in a judicial finding.

Legal opinion is divided over the gravity of the SCA’s mistake. At least two senior legal experts, one of whom has been closely involved with the Shaik matter, said the effect of the mistake on Shaik would be minimal. One said the judges had appropriated the phrase because they thought it was apt to describe the symbiotic relationship between Zuma and Shaik.

However the same reasons that prevented Squires making a finding about the relationship between Zuma and Shaik would have applied to the SCA.

Robin Palmer, a law professor at the University of KwaZulu-Natal, said the appeal court had been “sloppy” in attributing the phrase to Squires. He said by contrast, the trial judge had been meticulous in his judgment and was careful not to find on Zuma’s motives and state of mind.

While the bungle does nothing to help Shaik, who is already in prison, it may hold immense implications for Zuma *1. The ANC deputy president’s legal team is considering a Constitutional Court challenge to any future attempt to re-indict Zuma, on the grounds that it is not possible to get a fair trial. The issues likely to arise in such a trial have been so openly canvassed in public that no new trial judge could be immune from general public perceptions *2, they believe. The SCA’s mistake might strengthen this view.

With acknowledgements to Karima Brown, Vukani Mde and Business Day Weekender.


*1       Much ado about little. It is a last clutching at the straw to save Zuma from the inevitable.

Zuma still has to tried in his own trial.

If that court genuinely finds that there was no generally corrupt relationship then it must find so. The State can appeal if it disagrees.

The SCA has, based on its full review of the evidence,  surely made up its own mind that there was indeed a generally corrupt relationship.

There is still Count 3 and so a failure on Count 1 should not automatically be valid cause not to re-indict.


*2      In the interests of balanced justice, just because every judge in the country has been exposed to the Shaik trial and appeal, why should the co-conspirators Zuma and The Two Thints get of scott-free. Judges are trained and experienced to assess each matter on its own merits as put forward to them by the prosecution and the defence.