Johannesburg : The decision by former National Director of Public Prosecutions Bulelani Ngcuka to prosecute Shabir Shaik on his own - and not with his alleged co-conspirator Jacob Zuma - infringed on the Durban businessman's right to equality and a fair trial.

This is the argument set out by his lawyers in an application for leave to appeal in the Constitutional Court. The application - in an extraordinary huge volume of paperwork - was launched by Shaik's lawyer Shivanada Reeves Parsee yesterday.

It is Shaik's attempt to get out of prison before completing his 15-year jail sentence.

Shaik, who is currently being treated at the St Augustine's Hospital in Durban for an undisclosed illness, began his sentence last month at the Qalakabusha Prison in Empangeni, KwaZulu-Natal. This after a full bench of the Supreme Court of Appeal (SCA) in Bloemfontein dismissed his appeal against conviction on two corruption charges and one of fraud by Judge Hilary Squires in the Durban High Court.

Although Ngcuka had told the media that the National Prosecuting Authority (NPA) had a prima facie case (of corruption) against the former deputy president, a decision had been taken not to prosecute him as the case seemed unwinnable.

But the NPA went ahead and prosecuted Shaik.

In an affidavit submitted to the Constitutional Court, Parsee said Ngcuka had failed to exercise proper discretion when he decided to prosecute Shaik and 10 of his companies without also prosecuting Zuma. Shaik is Zuma's former financial adviser.

"Ngcuka failed to consider the potential prejudice to (Shaik) which may affect the fairness of the trial if Zuma was not charged together with (Shaik). Such a decision infringed on (Shaik's) constitutional right to equality, arising from instituting separate criminal proceedings against Zuma and (the French arms company) Thint jointly on the same facts, but not affording Shaik a similar trial," said Parsee, adding that the decision also compromised his client's right to a fair trial.

According to Parsee, the SCA also failed to consider such prejudice to Shaik when it went through his appeal. Parsee said that it was standard practice in the legal system that - where it is practically possible - alleged co-conspirators should be prosecuted together in the same trial.

"A reason for the alleged co-conspirators being tried together is that it is in the interests of justice that all evidence that may be adduced by the different accused be presented to the court when it decides the question of guilt. It is for this reason that the practice of joint trials is widely accepted in most legal systems. Ngcuka failed to take into account the generally established and prudent rule of practice in addition to [it] being the prosecutorial policy of his own office," Parsee said.

With acknowledgements to Phomello Molwedi and Cape Times.