Publication: The Mercury Issued: Date: 2007-04-11 Reporter: Tania Broughton

Shaik Appeal is 'A Long Shot'

 

Publication 

The Mercury
Date

2007-04-11

Reporter

 Tania Broughton

Web Link

www.themercury.co.za

 

The Constitutional Court will listen to argument next month as to whether or not it should consider hearing Schabir Shaik's appeal against his convictions for corruption and fraud, 15-year prison sentence and confiscation of R34-million of his assets.

And a legal expert is already cautioning that it does not look good for the former Durban businessman, who is serving his sentence in Westville Prison.

In order for the court to consider an application for leave to appeal, Shaik first has to raise a constitutional issue and then show that it was raised but not properly addressed by the previous court.

The court, in many instances, directs that this issue be argued first, followed immediately by argument on the merits of the matter.

'Directions shall be issued for the further conduct of the appeal'

This, legal sources said, was an indication that the court considered the "leave to appeal" argument a mere formality and did not want to waste time by setting the matter down again to deal with the merits.

But, in the Shaik matter, the chief justice has directed that only argument on the issue of whether leave to appeal should be granted at all will be heard on May 23 and 24.

"Should leave to appeal be granted on any or all grounds, directions shall be issued for the further conduct of the appeal," the directions noted.

The legal source, who did not wish to be named, said this was usually an indication that the court regarded the application as "a long shot".

"Shaik's advocates are going to have to argue strongly that the appeal should be heard in the first place," he said.

Shaik lodged the application late last year after his appeal before the Supreme Court of Appeal failed.

He is arguing that the decision to prosecute him alone, and not alongside Jacob Zuma *1, contravened his right to equality and a fair trial.

He also claims prejudice because the trial court did not hear evidence from Zuma.

The state, however, has argued that there was nothing stopping Shaik from calling Zuma as a witness and the application was just a last ditch attempt to avoid the consequences of convictions and sentence.

Shaik is also challenging the forfeiture of R34-million of his assets, which are being retained by a court-appointed curator.

Meanwhile, Zuma and Thint have not yet filed their promised application for leave to appeal against a decision by Durban High Court Judge Philip Levinsohn to grant the state a "letter of request" to authorities in Mauritius for the release of certain documents being held under court injunction there.

The state says it needs these "for further investigation" into possible corruption charges against the former deputy president and the French arms company.

The documents include a diary of former Thint chief executive Alain Thetard, which, it is alleged, notes a meeting between himself, Zuma and Shaik where the bribe from Thint to Zuma was arranged. Zuma and Thint still have about 10 court days to lodge the application.

In the meantime, the letter issued by the judge has already been sent to the relevant authorities in Mauritius *2.

• This article was originally published on page 3 of The Mercury on April 11, 2007

With acknowledgements to Tania Broughton and The Mercury.


*1       This decision to prosecute him alone and not alongside Jacob Zuma and Thomson-CSF was a very ill-judged one, but not a infringement of constitutional rights.


*2      And there we have it. The wheels of justice clicked a little faster this time.

It will be really interesting to see the attitude of the Mauritian courts on this matter when Thomson-CSF lodges its inevitable challenge to releasing the relevant documents.