Schabir Shaik's trial was "unfair" because he was never charged with Jacob Zuma or the French arms manufacturing giant Thint on charges of corruption and fraud, an appeal application filed with the Constitutional Court said yesterday.

Shaik was found guilty of two counts of corruption and one of fraud by Judge Hilary Squires in the Durban High Court in July last year and was sentenced to 15 years in jail.

The verdict was upheld by a full bench of the Supreme Court of Appeal on November 6 and Shaik has begun serving his sentence.

Shaik's lawyer Reeves Parsee said to the media in Durban yesterday: "We contend that he should never have been charged alone."

Parsee said Shaik should have been charged along with Zuma as well as Thint, the local subsidiary of French arms manufacturing giant Thales International.

He said the fact that Zuma and Thint were not charged, but placed on the State's witness list in Shaik's trial, effectively silenced the two to his client's disadvantage.

"Because they were still suspects, they would not have wanted to speak for fear of implicating themselves," he said.

The decision to try Shaik alone constituted "trial unfairness" and was "unlawful and illegal".

In the appeal application, filed by Parsee, he said that both pre-trial investigations and in-trial legal procedures had compromised Shaik's constitutional right to a fair trial.

"At this point, I record that the NPA's (National Prosecuting Authority's) conduct compromised the fairness of the investigating process, and the First Applicant's (Shaik's) fair trial rights in the Durban proceedings," said Parsee in the application.

In addition to unlawful investigations, Parsee said Shaik was prejudiced because he was not tried jointly with the other applicants such as Thint and Jacob Zuma.

"Trying Shaik separately effectively silenced Zuma and Thint, who would have implicated themselves had they been called as witnesses," he said.

In the application, he said that as a result of this, all evidence was not presented to the court when it ruled on the question of Shaik's guilt.

Because the deadline for the appeal had been on Friday last week, an application for condonation of late filing was also included in the application.

Parsee cited time constraints as a main reason for the missed deadline.

He added that as a result of his trial and consequent imprisonment, Shaik had been under "considerable strain" which had diverted his attention from the appeal application.

Meanwhile, Department of Correctional Services spokesman Luphumzo Kebeni said Shaik was still being treated at a Durban hospital.

"As far as I am aware, his condition has not changed,"he said. "I cannot disclose any detail about his condition. That can only be disclosed by his doctor or his family."

Shaik was admitted to Durban's St Augustine's Hospital at the end of last month.

There were reports that he had suffered a stroke.

His brother Mo Shaik said that he was "still under medication and his high blood pressure is fluctuating all the time". 

With acknowledgements to Sapa and Cape Argus.