Publication: Business Day Weekender Issued: Date: 2006-11-18 Reporter: Karima Brown Reporter: Vukani Mde

Shaik Makes a Desperate Final Bid to Clear His Name

 

Publication 

Business Day Weekender

Date

2006-11-18

Reporter

 Karima Brown, Vukani Mde

Web Link

www.bday.co.za

 

A new set of top lawyers acting for the jailed businessman are hard at work scouring the appeal judgment to pick constitutional holes in it as the clock ticks, write Vukani Mde and Karima Brown

Schabir Shaik’s lawyers are scouring the Supreme Court of Appeal judgment upholding his corruption convictions to prepare a Constitutional Court challenge, as they work against the clock to beat a statutory deadline that expires on Monday next week.

Shaik has 14 days from the date of the supreme court’s decision to file papers with the country’s highest court. This period expires on Monday, November 27. His bid is complicated by a frantic search for new counsel to lead the constitutional challenge.

The lawyers’ first order of business will be to apply for an extension of the November 27 deadline to allow the lawyers to read the court records.

If Shaik is granted the right to go before the Constitutional Court, his lawyers will argue that the Supreme Court of Appeal went beyond its purview when it found an “overriding corrupt relationship” between himself and Jacob Zuma. They had no opportunity to argue against this during the appeal, they will say.

They will also argue that both the supreme court and the original trial court erred in characterising the financial exchanges between Shaik and Zuma as corrupt. They will argue that most exiled senior African National Congress (ANC) figures relied on businesspeople to bankroll them after their return to the country in the early 1990s.

These relationships were based on the notion of “reciprocal altruism” rather than corruption as defined in the law.

“Our law does not have the language to deal with the reality of the transitional period. Regrettably we couldn’t bring this to bear on the consciousness of the (trial) court,” said Shaik’s brother, Mo.

Shaik’s lawyers will want to open a discussion in the court about the philosophical foundations of criminal law in the new SA. They will tell the court that the Corruption Act under which he was convicted fails to take into account the necessary complex of relationships between the ANC and business during apartheid.

Mo Shaik said the supreme court also changed the legal grounds for the admissibility of the infamous encrypted fax during his brother’s trial. Shaik’s appeal team, led by Jeremy Gauntlett SC, therefore had no opportunity to argue against the court’s grounds of admissibility, he said.

This week Shaik’s family were frantically searching for new senior counsel, which would have to include at least one constitutional law expert, to argue the matter before the Constitutional Court. It has emerged that Nirmal Singh SC will lead the charge. Singh has acted for Thint, the French arms company that was accused of corruption with Shaik in 2003. He also defended Shaik against the state’s asset forfeiture order earlier this year.

The Shaik family has also approached Gilbert Marcus SC, and he is understood to be giving the matter some consideration.

Marcus has argued constitutional matters before and, along with veteran journalist Zwelakhe Sisulu, recently co-chaired an inquiry into politically inspired bannings at the SABC. Francois Van Zyl SC, who led Shaik’s defence during the sensational fraud and corruption trial in the Durban High Court, will remain part of the team because of his intimate knowledge of the various court records. Shaik’s attorney Reeves Parsee also remains in the team. Gauntlett will be retained to advise the team.

Shaik’s camp did not appear moved by the supreme court bungle during the court’s judgment upholding his various criminal convictions. Summing up the evidence, the court incorrectly said Judge Hilary Squires had found a “generally corrupt relationship” between the businessman and Zuma. A political and legal storm erupted this week after The Weekender reported the error.

While the supreme court’s error had no obvious bearing on its decision to uphold the convictions, Shaik’s lawyers may argue that the mistake suggests the court did not properly apply its mind when reading the evidence. However, most legal opinion is that this would be a long shot for the businessman.

The appeal court’s bungle may, however, have far-reaching implications for the state’s aborted corruption prosecution of Shaik’s political patron, Zuma.

The politician’s lawyers are reported to be preparing papers to file for a mistrial, should the National Prosecuting Authority re-indict him for corruption.

The Mail & Guardian reported on Friday that Zuma’s lawyers believed the supreme court’s error exposed the fact that even senior judges were not immune to undue influence created by media and public perception. Zuma’s lawyers believed a series of procedural bungles would render a new trial “invalid”, said the paper.

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