State slams 'dead-end' action

JOHANNESBURG: The Constitutional Court yesterday reserved judgment in the appeal by Schabir Shaik against his fraud and corruption conviction, his 15-year jail term and the seizure of his assets.

While Shaik's counsel, Martin Brassey, SC, has argued for a mistrial, counsel for the state maintains he should have spoken up a lot sooner if he was unhappy.

Presenting the state's case yesterday, Wim Trengove, SC, described Shaik's application as a cynical attempt by someone who had finally reached a "dead end" in the case.

Shaik's complaint about being charged in the absence of ANC deputy president Jacob Zuma would have been best brought at the start of the trial.

Similarly, that was when he should have raised with the trial court any queries about the prosecutor's role in the investigation. "They have known about these things all along," Trengove charged.

In any event, he said, there was no requirement of the prosecution to charge Zuma together with Shaik, even if it was alleged they were conspirators in a reciprocal relationship.

While it would have been improper to use the Shaik trial as a "dry run" to obtain information against Zuma and ascertain the possibility of success in a prosecution against him, this had not happened.

Instead, the then National Director of Public Prosecutions, Bulelani Ngcuka, had found, "in good faith", that while there was a prima facie case against Zuma, the prospects of success were not strong enough to pursue it - in other words, it was not known if the case was winnable.

The prosecution had been confident about its case against Shaik, Trengove said, and there was nothing improper with trying a strong case first before deciding whether to proceed with a weaker one.

He added that it was not the duty of the prosecution to structure a case in a way that was most beneficial to the accused.

Responding to the charge that trial prosecutor Billy Downer's involvement in the investigation gave him access to information he should not have had, Trengove defended his actions as "absolutely above reproach".

It would be "madness" to suggest that a prosecutor involved in a case for years be removed from it when it went to court, he said.

Legislation governing the Directorate of Special Operations - more commonly known as the Scorpions - made allowance for the involvement of prosecutors.

All that was required of the prosecutor was not to show fear, favour or prejudice.

Trengove said "new evidence" brought by Brassey was "not new at all".

He accused the defence of scouring for any scrap of evidence they could find "from all over the place" to support the Constitutional Court action.

Brassey had known the substance of the information from the start and would have been provided with it had they requested further particulars, Trengove said.

As far as sentencing was concerned, Shaik had been charged with unlawfully and corruptly giving Zuma benefits not legally due to him - in the form of 238 payments - between October 1995 and September 2002.

While it was true that some of the payments predated the minimum sentencing legislation, most post-dated the legislation and exceeded the minimum threshold of R500 000 for the legislation to come into force.

On the seizure of Shaik's assets, Trengove said Shaik would never have had the benefit of the shares and assets involved, were it not for the intervention of Zuma.

He had used his corrupt relationship with Zuma as a selling point.

"He sold himself to other business people on the strength of his political connectivity to Zuma," Trengove said.

With acknowledgements to Cape Times.