Businessman's lawyers argue for reduced sentence because of relationship

Schabir Shaik's legal team want to convince the Supreme Court of Appeal that Shaik's relationship with Jacob Zuma was "special", and not corrupt.

Should the team succeed, Shaik's prison term could be reduced by one-third of the 15 years he was sentenced to by KwaZulu Natal High Court Judge Hilary Squires, and the state's case against Zuma would suffer yet another blow.

Although it is a public holiday, a full bench of the Supreme Court of Appeal (SCA) were to begin hearing lawyers for Shaik and 11 of his companies appeal against their conviction and sentence in Bloemfontein today.

Michael Hulley, Zuma's attorney, indicated that he would attend the hearing.

Last week the same state legal team responsible for arguing against Shaik's appeal endured a roasting by Pietermaritzburg High Court Judge Herbert Msimang, who refused to grant the state's application for a postponement of Zuma's graft trial and then struck it off the roll.

Within an hour of the judge's ruling, the Scorpions raided a firm of accountants linked to Shaik, giving the strongest indication yet that Zuma might be charged again. It was the state's initial success in prosecuting Shaik, Zuma's former financial adviser, that prompted the National Prosecuting Authority to charge Zuma.

President Thabo Mbeki fired Zuma as deputy president on June 14 June last year after Judge Squires found that a "generally corrupt relationship" existed between Shaik and Zuma. On June 20 Zuma was charged with corruption and fraud.

Deputy Director of Public Prosecutions Billy Downer SC admitted to Judge Msimang that the state had never intended to proceed against Zuma solely on the charges for which Shaik was convicted - an acknowledgment, say Zuma's lawyers, that the case against Zuma, in relation to these charges, was less than watertight.

During Shaik's trial, the state alleged that Zuma was knowingly involved in Shaik's solicitation of a R250 000 bribe from arms company Thint (then known as Thomson CSF Africa) and agreed to protect the company from a potentially damaging inquiry into South Africa's controversial arms deal.

This money, the state argued, was part of a planned R500 000 a year which would be paid to Zuma for his support. But Shaik's legal team, headed by senior advocates Francois van Zyl and Jeremy Gauntlett, have disputed this.

"If Shaik had merely used Zuma to convince Thethard to pay him R500 000 per year … without Zuma's knowledge, Zuma and Shaik did not commit the (corruption offence) in question," they argued, adding that Shaik "may however have committed a fraud against Thethard".

Under the Minimum Sentences Act, Shaik could receive a five-year sentence for such fraud - one-third of the 15 years to which he was sentenced for corruption.

Gauntlett and Van Zyl have made no effort to challenge Judge Squires' finding that Shaik was a dishonest and unreliable witness, but they have argued that Shaik's friendship with Zuma may have motivated him to lie under oath about the way in which he had misused his friend's name and profile to secure money.

"It is important to note that there was no direct involvement on the part of Zuma in reaching the alleged agreement," they stated.

The only evidence showing that Zuma was involved in the alleged agreement, according to Shaik's lawyers, was the controversial "encrypted fax" sent from Thethard to Thomson staff in Mauritius. Judge Squires ruled that this fax - in which Thethard stated that "JZ" had validated a request by "SS" - clearly showed that Shaik, Zuma and Thethard had shared a common corrupt purpose. But Shaik's legal team have indicated that they would argue that this document was inadmissible. The lawyers say that if the fax was found to be admissible, they would argue that it was "nothing more than a report to the "addressees".

"It is certainly not a request for payment or an instruction that payment be made. There is also no indication, in the wording of the document, that it was intended to play any role in the furthering of a common purpose.

"There is … no evidence that any response was forthcoming from either Paris or Mauritius to the contents of the document. This further indicates that the document was, at best, no more than a report which did not call for action from those to whom it was sent."

After political and media commentators expressed concern over alleged corruption in South Africa's controversial arms deal, Zuma was in support of an investigation, but Shaik's lawyers argue that it was unlikely that Zuma would have publicly supported an investigation.

The lawyers say Judge Squires should have accepted that the payments Shaik made to Zuma - estimated by Shaik to amount to R880 000 - were loans and gifts made out of friendship.

"The court erred in rejecting Shaik's evidence that the schedule payments were made to assist Zuma financially, as a result of a deep-rooted friendship between them, after Zuma had confided in him that he was in dire financial straits."

With acknowledgement to Karyn Maughan and The Star.