The SABC will today argue in the Constitutional Court why it should be allowed to broadcast the appeal case of Durban businessman Schabir Shaik.

Last month, the Supreme Court of Appeal refused the SABC permission to broadcast on television and radio argument in the Shaik appeal, set to begin in the last week of this month.

Shaik’s appeal is twofold. He will appeal against the criminal convictions in which he and some of his companies were found guilty of fraud and corruption. He will also appeal against an order made by the Durban High Court that he should forfeit more than R30m, said to be proceeds of crime.

The national director of public prosecutions, Shaik and his companies are opposing the SABC’s application.

In an affidavit, Ursula Pearce, an attorney for the SABC, said the appeal court’s decision violated the broadcaster’s constitutional freedom of expression. She said the television broadcast of proceedings in an appeal, as opposed to a trial, could not interfere with the fair-trial rights of the accused.

“The concerns of the court with respect to the impact on the Jacob Zuma trial of a broadcast in the Shaik appeal are unfounded. There is no real prospect that the broadcast of the Shaik appeal will affect the willingness of witnesses to testify in the Zuma trial. It will also not create a public perception that the guilt or innocence of Zuma is being prejudged in advance of his trial,” Pearce said.

Zuma is appearing in a corruption trial in the Pietermaritzburg High Court with French arms manufacturer Thint.

Shaik, in his heads of argument, said the SABC’s appeal was seriously disruptive to the preparations for the appeals by the state and defence.

Shaik said the complication presented by the SABC appeal was that the National Prosecuting Agency initially elected not to prosecute both Zuma and Thint with him.

“The appeal court was particularly concerned about any basis for the perception that the fair-trial rights of those yet to be tried in separate proceedings may be prejudiced.

“The facts of my case and that against Zuma are substantially the same. The perception of the judicial approach adopted in my case will affect Zuma’s case as to its outcome,” Shaik said.

Billy Downer, for the national director of public prosecutions, said one of the issues raised in the appeal court was how the SABC came to believe it was entitled to record proceedings in the court.

“We still do not know how it came under the misapprehension that it was entitled to record the appeal proceedings. No explanation has been forthcoming.”

With acknowledgement to Ernest Mabuza and Business Day.