Publication	The Weekender
Date	2006-12-16
Reporter	Karima Brown, Vukani Mde
Web Link	www.businessday.co.za

Convicted businessman and former adviser to Jacob Zuma, Schabir Shaik has turned to the Constitutional Court in a last-ditch effort to avoid serving 15 years in prison.

Lawyers acting for Shaik have submitted papers to the court, asking for leave to appeal his conviction on two counts of corruption and one of fraud.

Sources close to Shaik said their papers were handed to the office of the state attorney on Friday, and would be registered with the court on Monday.

The Supreme Court of Appeal (SCA), which is the last court of appeal on criminal and civil matters, upheld Shaik’s Durban High Court conviction on all counts, as well as the effective 15-year jail term handed down by retired Judge Hilary Squires.

Shaik is currently serving his sentence at KwaZulu-Natal’s Qalakabusha minimum security facility, though since entering prison he has spent most of his time at a private Durban hospital after he reportedly suffered a minor stroke.

Success for Shaik in his latest bid would not only save him from a lengthy jail sentence, it could also have political repercussions for SA. Zuma’s campaign for the presidency of the ruling African National Congress (ANC) next year will turn on whether he is prosecuted for corruption. The National Prosecuting Authority (NPA) has indicated that it intends bringing charges against him in the new year. Such a prosecution will undoubtedly increase tensions in an already divided ruling party in the run up to its national conference next December.

A Constitutional Court challenge to Shaik’s conviction and sentence has been on the cards since the failure of his supreme court appeal. Shaik sources at the time said the basis for such a challenge was likely to be that the SCA over-reached its powers when it found there was “an overriding corrupt relationship” between Shaik and Zuma. Shaik’s camp also wanted to challenge the legal definition of corruption that led to Shaik’s conviction and reclassify his association with Zuma as “reciprocal altruism”.*1

“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 at the time.

However, the argument appears to have changed after lengthy consultation with a new set of high-powered lawyers led by Nirmal Singh SC. Shaik’s lawyers have to convince the court that there is a constitutional matter at issue in the first place. A radical re-definition of the accepted understanding of corruption was not likely to achieve this. Now Shaik’s team will argue that he did not get a fair trial in the Durban High Court because of the state’s failure to include Zuma and French arms manufacturer Thint as co-accused.*2

Shaik’s two corruption convictions centre around the three-way relationship between himself, Zuma and Thint. In one of the charges the state alleged, and the court concurred, that Shaik was the go-between in a bribe agreement between Zuma and the company’s local representative. Shaik’s team is hoping they will get a more favourable reception if they raise what they perceive to be procedural weaknesses in the conduct of the state’s case against Shaik.

“I think we have a case. We’ve researched the law in this regard. Commonwealth legal precedent is that where there is a conspiracy, justice demands that the conspirators be charged together *3. The court needs all versions of the events to arrive at the truth,” said a Shaik source *3.

Since Shaik was convicted on charges that centred on his relationship with Zuma and the French company, the two “co-conspirators” should at least have been heard *4, the source said.

But Shaik’s defence team also failed to call either Zuma or representatives of Thint as witnesses in his original trial, which might weaken their stance. In fact, one of the unanswered questions *5 during Shaik’s trial was why Zuma, Shaik’s friend of many years’ standing, could not be called to corroborate the accused’s version of events.

If the court decides to hear Shaik’s arguments, the case is likely to be set down for next month. Getting the case accepted will be the first hurdle. Next would be to get the court to accept that the alleged procedural unfairness in the Durban High Court was so severe that it prevented Shaik getting a fair trial, which is guaranteed in the Constitution.

---

*1       There is in reality no such thing as “reciprocal altruism”. By definition, if it's reciprocal then it's no longer altruistic.


*2      The People did not get a fair trial in the Durban High Court because of the state’s failure to include Zuma and French arms manufacturer Thint as co-accused.

This was the direct cause of two of the biggest jackasses in the history of South African jurisprudence, Dr Penuell Maduna and Adv Bulelani Ngcuka.


*3      Probably that great legal mind Adv Yunis Shaik.


*4      It really is a sickening legal tragedy that The Two Jackasses failed to include Zuma and French arms manufacturer Thint as co-accused.

We still want to know the identity of the senior counsel, experienced in such matters, who allegedly gave his opionion that a corruption case against Zuma was unwinnable.

I think it is twaddle.


*5      The chances of success are far less than that of a snowball surviving 15 years in Westville prison.