Schabir Shaik was convicted of fraud and corruption because he repeatedly lied under oath - not because former deputy president Jacob Zuma was not charged with him.

This was said this morning by State counsel Wim Trengove SC, who vehemently denied that the State had used its case against Shaik as a "dry run" for its thwarted prosecution of Zuma.

When Judge Hilary Squires convicted Shaik in 2005, he found that the Durban businessman was an unreliable witness who had lied repeatedly during his evidence, and even about his qualifications.

Shaik, who is currently serving a 15-year sentence, has pinned his Constitutional Court bid for freedom on his claim that his trial was unfair because he, Zuma and French arms company Thint were not tried together.

Yesterday Martin Brassey SC, for Shaik, asked the court's 10 judges to "imagine if Mr Zuma had been tried alongside Shaik" and if Zuma had revealed that the payments he received from Shaik were gifts "from one comrade to another".

The outcome of Shaik's case might have been very different if Zuma had testified that Shaik helped him "like a father helps a son", Brassey said.

Responding to what he described as Brassey's "cres-cendo", Trengove said Shaik's counsel was "welcome to invite flights of imagination … but this is sheer fantasy".

If the situation described by Brassey was true, Trengove said, "I would have imagined that Mr Zuma would have been eager to come to court to defend his comrade, compatriot and father".

"Zuma would not have shirked his opportunity to rush to Shaik's defence," he said.

If "for some inexplicable reason" Zuma had been reluctant to come to Shaik's defence, he could still have been called as a witness by Shaik's lawyers, Trengove said.

Pointing out that Shaik's lawyers had themselves admitted that he had lied under oath and come badly unstuck during his cross-examination, Trengove questioned how Zuma's evidence could have supported such dishonest testimony.

Questioned by Constitutional Court Judge Albie Sachs, Trengove conceded that it would have been "improper" for the State to have used Shaik as a "stalking horse" for Zuma.

"It does seem to me to be improper to structure a trial for an ulterior purpose," Trengove said, after earlier insisting that this had not been the case with Shaik's trial.

Trengove, however, insisted that it was "perfectly permissible" for the State to decide to firstly prosecute a conspirator against whom it had a strong case before launching a prosecution against another conspirator against whom its case was weaker.

Such decisions were made during the course of litigation every day, he said.

Shaik's brothers arrived at the court again today to hear the final day of his Constitutional Court appeal challenge.

It remains to be seen whether the Constitutional Court will decide whether in fact Shaik's full appeal should even be heard.

This morning Trengove also challenged Shaik's bid to have the entire record of Zuma's aborted corruption trial admitted into evidence.

"This is not a case where the accused has been convicted and after conviction has discovered a hidden flaw in his trial that has rendered it unfair," he said.

He added that the facts contained in Zuma's trial record were "not new at all".

Trengove said it had been possible for Shaik's legal team to make inquiries about the facts which they now claimed they had no knowledge of previously.

With acknowledgement to Karyn Maughan and Cape Argus.