Publication: Sunday Independent Issued: Date: 2006-11-05 Reporter: Jeremy Gordin Reporter:

Schabir Shaik's Day of Reckoning

 

Publication 

Sunday Independent
Date

2006-11-05

Reporter

Jeremy Gordin

Web Link

www.sundayindependent.co.za

 

If his conviction is upheld by the supreme court, and he is unable to go to the constitutional court, he'll serve time

Tomorrow is D-Day for Schabir Shaik - and the constitutional court might be his last recourse for avoiding jail.

Ahead of tomorrow's supreme court of appeals (SCA) ruling on his corruption and fraud appeals, the question on the lips of the country is whether Shaik - a member of a well-known Durban family of struggle activists, an entrepreneur and Jacob Zuma's former financial adviser - is going to jail in the next few days.

The answer is that it will more than likely be quite a while before Shaik has to pack his bags for prison.

If the judgment on Shaik's appeal, to be handed down in Bloemfontein at 9.45am tomorrow by Judge Craig Howie, the SCA's president, offers the slightest possibility of a constitutional court appeal, Shaik will be back in the Durban high court this week.

There he will ask for an extension of his bail so that he can prepare for his application to the constitutional court - just as he applied last year to Judge Hilary Squires, the corruption trial judge, for an extension of bail so that he could deal with his appeal.

This was why the first sentences spoken to the judges of the SCA by Jeremy Gauntlett, the senior counsel who led Shaik's appeal from September 24-27, dealt with "putting on record" that his client "reserved his right" to go to the constitutional court.

On June 2 last year Shaik and 10 of his companies were convicted in the Durban high court of corruption and fraud. On June 8, Squires sentenced Shaik, who represented all the corporate accused, to 15 years in prison on each of two corruption counts (counts one and three of the indictment) and to another three years for fraud (count two of the indictment). The sentences were to run concurrently.

Only if the court slams the door on Shaik tomorrow and states categorically that it has found that no aspect of his case can be related to constitutional issues will he head straight for prison.

The constitutional court route might well be crucial for the Shaik team. It seemed clear from the lines of questioning, and the reactions of the full bench of the SCA, that Shaik is unlikely to succeed in his appeal on count one of the indictment, which alleges that there was a "generally corrupt relationship between Shaik and Zuma", and count two of the indictment, the charge of fraud.

And, because Shaik was refused leave to appeal against his three-year fraud sentence, if his fraud conviction is upheld by the SCA, and he is unable to go to the constitutional court, he will have to start serving time.

Another question is whether the SCA has decided to reduce his 15-year sentence for corruption.

Though Shaik received the statutory minimum sentence, the SCA has the right to find that "compelling reasons" exist for his sentence to be reduced.

In September, Gauntlett told the SCA that the Durban high court had incorrectly interpreted the relationship between Shaik and Zuma. But Billy Downer, SC, for the state, said Shaik's relationship with Zuma had been "suspect" and "calculated to gain benefit".

Tomorrow the National Prosecuting Authority (NPA) will find out how much work it will have to do if it decides to re-charge Zuma with corruption. The state's case against former deputy president, which flowed directly from the Shaik trial, was struck off the roll on September 20 in the Pietermaritzburg high court.

A decision by the state to re-charge Zuma would have a major impact on Zuma's plans to succeed President Thabo Mbeki as the president of the ANC.

An important part of tomorrow's judgment is, therefore - for Zuma especially - whether the SCA has decided to allow the notorious encrypted fax to be admitted as evidence. And, if so, whether the SCA has judged that it is proof of corruption, as was found by Squires.

The fax formed the basis of the second count of corruption (count three of the indictment) on which Shaik was found guilty by Squires.

Squires admitted the fax as proof that Shaik had facilitated a bribe of R500 000 a year for Zuma to be paid by French arms manufacturer Thint.

The deal was made at a meeting attended by Shaik, Zuma and Alain Thetard, a Thint representative.

But at September's appeal at least three members of the five-judge SCA bench - Howie, deputy president Lex Mpati and Judge Piet Streicher - expressed their unhappiness that neither the author of the fax, Thetard, nor Zuma had been cross-examined about it.

The judges also expressed incredulity that no one had been able to enlighten them about the "code" referred to in the fax.

"If everyone at that meeting was talking in code, but no one seems to know what the code actually was, how did anyone know what anyone else was talking about?" Streicher asked Downer.

If the SCA refuses to admit the fax as evidence, or finds that Squires and his assessors erred in adducing that it proved Zuma was aware that a bribe was being arranged, it will remove the arms deal as an issue in the Zuma saga *1 - and be a victory for the former deputy president.

Still, if the SCA upholds count one - the generally corrupt relationship between Shaik and Zuma - that might be enough to convince the NPA that it should re-charge Zuma with corruption.

Tomorrow only the court's order will be read by Howie, not its full judgment. The full judgment will become available later. If there is no way in which Shaik can proceed to the constitutional court, tomorrow's judgment will end a legal saga that, along with Zuma's rape trial, became the most talked about in modern South African history.

As a result of Squires's finding that a "generally corrupt relationship" had existed between Shaik and Zuma, Mbeki fired Zuma from the deputy presidency on June 14 last year and Zuma was charged with corruption and fraud six days later.

Squires granted Shaik leave to appeal against count three and against his conviction for fraud. But he refused Shaik leave to appeal against the first corruption charge, so Shaik approached the SCA directly for leave to appeal.

The SCA ruled that leave to appeal had to be argued simultaneously with the merits of the appeal itself. This is what happened and judgment was reserved on September 26.

It is possible that the SCA will dismiss Shaik's application for leave to appeal and will not even consider the merits of the first corruption charge.

The conviction and 15-year sentence handed down by the Durban high court would then stand.

It is also remotely possible that the SCA will allow the appeal on the first corruption charge and find that the trial court erred on the facts, and uphold Shaik's appeal on all counts.

With acknowledgements to Jeremy Gordin and Sunday Independent.


*1       This is not true.