Johannesburg - Schabir Shaik's application to the Constitutional Court is a "frivolous" last-ditch attempt to stay out of jail.

This is the State's argument in court papers submitted to the Constitutional Court in reply to Shaik's application late last year.

Shaik is applying for leave to appeal against his convictions and sentences, which were confirmed by the Supreme Court of Appeal in November last year.

Shaik, Jacob Zuma's former financial advisor, was transferred to St Augustine's hospital in Durban shortly after his arrival at the Qalakabusha Prison in northern KwaZulu-Natal in November last year, as he was suffering from high blood pressure.

Shaik received treatment at the hospital for 83 days, but was ordered to go back to prison following an investigation into medical reports.

According to an affidavit by senior special investigator Johan du Plooy, an investigation officer for the Scorpions, Shaik has "no reasonable prospects of success" in the Constitutional Court.

Before that court can hear an appeal application, leave to appeal must first be granted.

In order to do that, the Constitutional Court must first be convinced of two things: that the application raises a constitutional matter and that it is in the interests of justice to grant leave to appeal.

Du Plooy says that neither is the case here.

'Manufactured issues'

Shaik and his legal team have attempted to "manufacture" constitutional issues by putting forward new evidence that played no part whatsoever in his trial or the appeal case.

Du Plooy says Shaik's application rests largely on about 3 000 pages of "factual material" that did not appear anywhere in the appeal case. He says the applicants (Shaik and his companies) "have made little attempt to demonstrate that (the appeal court) erred in its analysis of the evidence before it".

He argues that the application for leave to appeal "is based almost entirely on new evidence, which is alleged to give rise to constitutional issues".

He says most of the new material emanates from the Zuma trial and the State's application for postponement.

The State also has a go at the sacked deputy president, stating that the material is a "mass of serious, often scurrilous and largely unfounded allegations of impropriety against the NPA", which rely on "hearsay and innuendo" and are "wholly untested".

If the Constitutional Court allows Shaik to appeal, the upshot will be a "de facto retrial" before "the country's highest appellate court".

Regarding his objection that he, Zuma and Thint should have been charged together, the State says Shaik should have raised that argument much earlier.

With acknowledgements to Adriann Basson and the Beeld.