Publication	Sunday Times
Date	2007-05-27
Reporter	Julian Rademeyer
Web Link	www.sundaytimes.co.za

"My wife loves it because ... it means I’ll never be able to get up to any kind of nonsense’

"It is coming to the end of the latitude one allows ... the accused to twist and turn’

Highest court considers Schabir’s final bid


“We love you!” the gaggle of giggling schoolgirls enthused as they jostled for a group photograph with Yunis, the lawyer, and Mo, the former spy turned businessman.

The Shaik show was in town for a limited, two-day engagement at the Constitutional Court, and the charm offensive had begun.

Rolling into the court precinct in Johannesburg on Wednesday in a big, black BMW, with a burly bodyguard in tow, the brothers Shaik were missing two of their number. With Schabir in a prison cell, once again, and Chippy having performed a vanishing act, his academic credentials in tatters, it was up to Mo and Yunis to hold the fort.

Puffing on a pipe, Mo grinned and pondered the meaning of celebrity. “My wife loves it because it means I’ll never be able to get up to any kind of nonsense *1 without someone seeing me.”

Breathing smoke, he reflected on another famous pipe smoker, as photographers tried to capture each exhalation. “Our president should smoke in public more often”.

Inside the building, 10 judges were weighing up what could be Schabir’s final bid to get out of jail.

Schabir, the disgraced former financial adviser to ANC deputy president Jacob Zuma, is serving a 15-year jail term and has asked the court for leave to appeal his conviction on two counts of corruption and one of fraud, his sentence and the seizure of his assets as proceeds of crime.

“I spoke to him this morning,” Yunis said before proceedings began. “He’s okay, he’s very anxious. All that stands in his life now is a day between a day and 15 years.”

Lined up beside the judges were trolleys containing the records of Shaik’s initial Durban High Court trial and that of his Supreme Court of Appeal case.

Appearing for the state was Wim Trengove SC, widely regarded as one of South Africa’s most eminent legal practitioners. Advocate Martin Brassey SC, author of books on labour and employment law and a visiting professor at Wits University, appeared for Shaik.

Their styles could not have been more different. Trengove was to the point, his arguments succinct, cutting and occasionally tinged with dry sarcasm. Brassey appeared to revel in a sea of verbiage, mixed metaphors and dense sentences that prompted one judge to remark that he was “utterly lost” *2 by the argument.

At one stage, commenting on an aspect of the role played by prosecutor Billy Downer in Shaik’s original trial, Brassey said: “It requires us to embark on an examination of matters so collateral and so impregnated by imponderables *4 that actually we never get to the bottom of it.”

Brassey said Shaik’s trial had been unfair because he was not tried alongside his “co-conspirators”, including Zuma, and because there had been “irregularities” in the conduct of the prosecution.

Adopting an American concept, Brassey argued that there had been a “mistrial” because the state had a duty to prosecute Shaik and his co-conspirators together. In effect, he said, the state had used the Shaik trial as a “dummy or trial run” while treating Zuma with “kid gloves”.

“Can you imagine the quality of the trial and how different it would have been if Mr Zuma had entered the box and said, ‘I want to tell you how it is between me and Shaik. Shaik is a friend of mine. You are asking me to tell you that Shaik tried to influence me in the exercise of my decision-making power. I want to tell you that he helped me. He helped me as comrade to comrade, he helped me as a compatriot, he helped me in a way that a father helps a son, so far as finances are concerned.’ ”

Brassey continued: “We know for instance, and Judge [Hilary] Squires tells us blithely, that Shaik put his hand occasionally back into Zuma’s pockets and took out money from time to time as a repayment of the loan.”

It was a point Trengove used to mocking effect when he described as “sheer fantasy” Brassey’s speculation on Zuma’s possible evidence.

He said if indeed it were true that Zuma may have wanted to say that, it is possible he would have been eager to come to court to rescue “his comrade, compatriot and father ”.

“He would not have shirked his friend in need and allowed him to go to jail.”

Trengove said Shaik’s legal team could have compelled Zuma to testify.

Brassey said that “if it is generally desirable to try accused as conspirators together, it is generally undesirable to try them separately” because Shaik could “legitimately expect his co-conspirators to get into the box and make exculpatory statements, but cannot [otherwise] be compelled to testify for fear of incriminating themselves”.

Trengove was scathing, saying the Supreme Court of Appeal would ordinarily have been the “end of the road” for Shaik’s case, but “a new team of lawyers was brought in”.

“They ... scoured every other possible avenue and scrap of evidence which they now offer as the basis on which to attack the integrity of the conviction.”

And he said: “It is not a question of sending a man to jail for 15 years because of a technicality. It is coming to the end of the latitude one allows ... the accused to twist and turn and to take different points in different directions.”

After the final day of testimony, the Shaik brothers hedged their bets.

“I feel very, very confident that, win or lose, justice will prevail,” Yunis said. Mo echoed his words. “We will respect the judgment, win or lose”.

Then they were gone in the big, black BMW.

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What the advocates had to say

MARTIN BRASSEY SC, Schabir Shaik’s counsel:

“Shaik ... should have stood up at the outset of his trial and said: ‘This is a dry run to nail me, that is what you are trying to do.’”

On Shaik as a witness during his trial:

“Shaik went very badly, if one reads the judgment, in giving his evidence and it seems he fell victim to what accused so often do ... which is to contrive a set of facts ... that ultimately don’t stand up to scrutiny for fear that the truth, when given, won’t justify their case.”

On how Jacob Zuma would have come across if he had testified:

“Can you imagine a man of such stature testifying from the witness box in an open and frank manner, which would have dispelled the unfortunate impression my client might have made, brought on because he is bombastic.

“If anyone believes that my client was the ultimate fish that was sought to be landed, they obviously haven’t been reading the newspapers.”

On Billy Downer’s role as prosecutor and his argument that Downer crossed the line between prosecuting and investigating:

“[Downer] entered the courtroom like the BP man, all blown up with information that only an investigator would properly have had.”

WIM TRENGOVE SC, for the state:

“Both his advocates ... explained that Mr Shaik failed because he lied in evidence. The one said he went badly under cross-examination, the other one explained he contrived a version which was refuted. That apparently is why he was convicted. Well, it wouldn’t be a first time.”

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*1       Sure?


*2      As is everyone else who's read the appellants' *3 founding papers and heads of arguments.


*3      These are actually not appellants at this stage, just requesters for leave to appeal.


*4      Despite the dense verbiage, he's trying to subliminally tell the 10 judges that there are conspiracies against his client's beneficiary.