Publication: Independent Online Issued: Date: 2006-12-19 Reporter: Phomello Molwedi Reporter:

NPA Should Have Charged Me with Zuma - Shaik

 

Publication 

Independent Online
Date 2006-12-19

Reporter

 Phomello Molwedi

Web Link

www.iol.co.za

 

The decision by former national director of public prosecutions Bulelani Ngcuka to prosecute Schabir Shaik alone - and not with his alleged co-conspirator, Jacob Zuma - infringed on the Durban businessman's right to equality and a fair trial.

This is the argument set out by Shaik in his application for leave to appeal in the Constitutional Court.

The application was launched on Monday by his lawyer, Shivanada Reeves Parsee, and follows the dismissal by a full bench of the Supreme Court of Appeal (SCA) in Bloemfontein of his appeal against his conviction on two corruption charges and one of fraud.

Shaik started serving a 15-year sentence in Qalakabusha Prison in Empangeni, KwaZulu-Natal, last month. However, he became ill and is being treated at St Augustine's Hospital in Durban.

'The trial court did not hear evidence from Zuma'

Although former National Prosecuting Authority (NPA) head Ngcuka had told the media they had a prima facie case (of corruption) against Zuma, a decision was taken not to prosecute him as the case seemed unwinnable *1. The NPA went ahead and prosecuted Shaik.

In an affidavit to the Constitutional Court, Parsee said Ngcuka failed to exercise proper discretion when he decided to prosecute Shaik and 10 of his companies without also prosecuting Zuma. Shaik used to be Zuma's financial adviser.

"Ngcuka failed to consider the potential prejudice to (Shaik) which may affect the fairness of the trial if Zuma was not charged together with (Shaik).

"Such a decision infringed on (Shaik's) constitutional right to equality, arising from instituting separate criminal proceedings against Zuma and (the French arms company) Thint jointly, on the same facts, but not affording Shaik a similar trial."

The decision also compromised his client's right to a fair trial.

'His high blood pressure is fluctuating all the time'

According to Parsee, the Appeal Court failed to consider such prejudice to Shaik. whereas it was standard practice in the legal system that, where practically possible, alleged co-conspirators be prosecuted together in the same trial.

"A reason for the alleged co-|conspirators being tried together is that it is in the interests of justice that all evidence that may be adduced by the different accused be presented to the court when it decides the question of guilt.

"It is for this reason that the practice of joint trials is widely accepted in most legal systems," said Parsee.

"Ngcuka failed to take into account the generally established and prudent rule of practice, in addition to being the prosecutorial policy of his own office that alleged co-conspirators ought to be tried together."

The case against Zuma and Thint was struck from the roll by Judge Herbert Msimang in the Durban High Court after the state failed to get a postponement of the trial.

Alluding to an application by Zuma and Thint that there should be a permanent stay of prosecution in their case, Parsee pointed out that the former deputy president alleged that the decision to prosecute him was a political one designed to destroy his political career by having him tried in the media - and in absentia in the trial against Shaik.

Parsee said that although this was disputed by the state, it was an issue that would arise in the next trial arising from the proposed re-indictment of Zuma.

"(The allegation) has yet to be ventilated and decided. If proved, it will have the result that the decision to prosecute Shaik without Zuma was taken for improper motives *2.

"The trial court did not hear evidence from Zuma and the Thint companies that they would have adduced in their defence.

"Many factual findings (in Shaik's trial), that involved matters about which their evidence would have been relevant and pertinent, were made without the benefit of such evidence," said Parsee.

Earlier this month, the state launched a court application for the Mauritian attorney-general to return crucial original documents needed to prosecute Zuma and Thint.

In upholding the convictions against Shaik, the Appeal Court mentioned the phrase widely attributed to trial judge Hilary Squires - that "there was a generally corrupt relationship" between Shaik and Zuma.

The judge has since written to the media saying he never used the phrase in his judgment, it was something created by newspapers.

Given this, argued Parsee, the logical conclusion should be that the SCA's decision was also premised on incorrect assumptions and should be regarded as improper.

Parsee's papers included an application for condonation, as the papers were launched three weeks late. The reason given was that a new advocate was appointed to handle the case and needed time to familiarise himself with all the facts.

Sapa, meanwhile, reports that Correctional Services has refused to divulge details about Shaik's condition. However, his brother Mo said Shaik was "still under medication and his high blood pressure is fluctuating all the time".

With ackowledgements to Phomello Molwedi and Independent Online.


*1       Twaddle.


*2      NDPP Ngcuka's motives for prosecuting Shaik were sound. NDPP Ngcuka's motives for not prosecuting Zuma or Thint were unsound - so unsound that they are wrongful and possibly unlawful.

But it would appear that the NDPP has a discretion to try the parties separately, first the littler fish, then the bigger fish.

When is the NDPP going to getting around to The Big FishTM .