Publication: The Witness Issued: Date: 2006-12-18 Reporter: Sharika Regchand Reporter:

Shaik Alleges Misconduct

 

Publication 

The Witness
Date 2006-12-18

Reporter

 Sharika Regchand

Web Link

www.witness.co.za

 

Grounds for appeal to Concourt laid out in papers

Durban businessman Schabir Shaik’s Constitutional Court application papers reveal serious allegations of misconduct on the part of the prosecution *1, which only emerged in the proceedings against Jacob Zuma and French arms company Thint.

The allegations were unknown to Shaik’s trial court judge Hillary Squires or the appeal court judges.

These allegations include secret meetings between the former national director of public prosecutions Bulelani Ngcuka and the representatives of Thint in Paris, and a meeting at the home of former justice minister Penuel Maduna during which Maduna said the focus of the prosecution was Shaik and not the French.

On Friday, Shaik’s legal team served a Constitutional Court application on the state comprising more than 5 000 pages. The application will be filed at the Constitutional Court today or tomorrow, whereafter the state will have 10 days to file any papers in opposition. The 11 judges of the Constitutional Court will then decide whether Shaik and his companies should be given leave to appeal.

Shaik was convicted of fraud and corruption, and was sentenced to 15 years’ imprisonment. In November, the Supreme Court of Appeal (SCA) dismissed appeals brought by Shaik and the Nkobi Group of companies he controls and confirmed the prison terms and hefty fines imposed by Squires in June last year. Shaik then went to jail.

The application papers reveal that Shaik’s counsel, prominent advocates Nirmal Singh SC and Hoosen Gani, will argue that his trial before Squires and the appeals before the SCA were unfair and “vitiated by misdirection”.

They will argue that the state should not have charged and tried Shaik separately from Zuma and Thint, since the state regarded all of them as “co-conspirators” and investigated all of them jointly.

The charges against Zuma and Thint were struck off the roll in September by Judge Herbert Msimang because the state was not ready to start the trial.

Shaik’s attorney Reeves Parsee refers to an affidavit deposed to by Ngcuka, which states that he decided to try Shaik alone “for strategic advantage”, and to a meeting convened by Ngcuka with certain newspaper editors at which Ngcuka allegedly said he was going to charge Shaik. Parsee alleges in the affidavit that Ngcuka’s decision to try Shaik alone resulted in the state “silencing” Zuma, which violated Shaik’s constitutional rights to equality and a fair trial, and that the public interest demands that Shaik be given leave to appeal.

Squires recently wrote to a weekend newspaper, denying using the phrase “generally corrupt relationship” to describe the relationship between Shaik and Zuma in his judgment. Squires wrote the letter after the Supreme Court of Appeal attributed the phrase to Squires when it dismissed Shaik’s appeals.

Parsee alleges in the application that this episode confirms that the appeal judges did not properly consider Squires’ judgment and that Shaik did not have fair appeal.

The Constitutional Court is in recess until February and a decision on Shaik’s application is expected by April. If Shaik is granted leave to appeal, the appeal could be heard by August 2007. Until then, Shaik will be obliged to continue his sentence.

Shaik is recovering in hospital after having suffered a stroke.

With acknowledgements to Sharika Regchand and The Witness.


*1       The trial itself was handled impeccably by the prosecuting team, while the investigation was handled impeccably by the investigating team.

The runup to the trial was marred by interference by the Minister of Justice, the National Director of Public Prosecutions and the Director of Special Operations.

The conduct of the former two at least probably amounts to misconduct and should be investigated by Thabo Mbeki (not necessarily himself, but one of the special judicial commissions he likes appointing when it suits him).

It is clear that the Minister of Justice and the politically-appointed National Director of Public Prosecutions were trying their best, at the behest of some persons else among us, to find a political solution to not charging Zuma and Thomson-CSF with the corruption that went right to the heart of national government and its Strategic Defence Packages contracting partners, as well as The Party.

So instead they charged alone poor old Schabir and now Advocates Nirmal Singh SC and Hoosen Gani will get their day in Braamfontein and possibly make the Minister of Justice, the National Director of Public Prosecutions and the Director of Special Operations look like the fools they were.

If Schabir wins, he will not only get back his R40 million in fines and forfeited assets, but will probably be able to sue The State for about R15 million in legal expenses and another R100 million for wrongful incarceration.

If this happens, hopefully the ex Minister of Justice and the politically-appointed ex National Director of Public Prosecutions will pay out of their own deep BEE pockets for the travesty of justice they caused.

If it also lets Zuma and The Two Thints off the hook, they should merely exchange places with Schabir in Qalakabusha.