Publication: Business Day Issued: Date: 2007-05-25 Reporter: Ernest Mabuza

Absence of Zuma Unfair to Shaik, Appeal Told

 

Publication 

Business Day
Date 2007-05-25

Reporter

 Ernest Mabuza

Web Link

www.businessday.co.za

 

Convicted fraud Schabir Shaik had not shown how he had suffered prejudice by not being charged together with former deputy president Jacob Zuma and French arms company Thint, the state told the Constitutional Court yesterday.

The state was opposing Shaik’s application for leave to appeal against a Supreme Court of Appeal judgment which confirmed fraud and corruption convictions and sentences imposed on Shaik and his companies.

Shaik’s counsel had argued on Wednesday that the prosecution’s failure to charge him together with Zuma and Thint rendered his trial unfair.

The court yesterday reserved judgment after two days of argument.

State counsel Wim Trengove SC said Zuma would have been eager to come to court to help out his comrade. “For some inexplicable reason, he (Zuma) was reluctant to help his comrade,” Trengove said.

Trengove also denied that the charging of Shaik was a dry run to see whether the state could prosecute Zuma.

Shaik should have spoken up when the case first went to court, or when the case was before the Supreme Court of Appeal if he felt his right to a fair trial was being infringed. “They could have raised the issue (of joinder) right at the beginning. The state chooses whether to separate or join the accused. Joinder is not beneficial to the accused,” Trengove said.

Trengove said in cases where fellow conspirators were joined in trial, the accused usually tried to shift the blame to the co-accused.

“The policy of a joined trial is a public right and is not vested in the accused. To deprive (Shaik) of joinder would not render the trial unfair,” he said.

Deputy Chief Justice Dikgang Moseneke said it concerned him that Shaik was not attacking the integrity of the conviction. Trengove replied that Shaik’s attack on the unfairness of his trial was a cynical attempt by someone who had come to a dead end on the merits of the case.

Trengove said the appeal by Shaik was not a case where an accused was convicted and later discovered that there was a hidden flaw in the trial which rendered the trial unfair.

“This is the case of an accused who was tried in the high court, where he was assisted by senior counsel, junior counsel *1 and an attorney and was convicted.” Trengove said Shaik’s failure to overturn his conviction and sentences at the Supreme Court of Appeal should have been the end of the matter.

Trengove said Shaik knew the reasons why the state decided not to charge Thint and Zuma with him before his trial started.

“The accused was convicted because of evidence before the court, and not the decision to prosecute only him.”

He also said the conduct by lead prosecutor Billy Downer, which had been described by Shaik as irregular, was above reproach. He said Shaik had been aware of Downer’s role from the start and should have raised objections earlier. Trengove said the National Prosecuting Authority Act designed the Scorpions to perform both investigative and prosecutorial functions. The case was not ultimately about the conduct of the prosecution but about whether Shaik had had a fair trial.

With acknowledgements to Ernest Mabuza and Business Day.


*1       Small mistake, there was no junior counsel in the High Court, but there plenty of Senior Senior Counsel, Junior Senior Counsel, Senior Junior Counsel and Junior Junior Counsel in the Supreme Court.