Publication: Business Day Issued: Date: 2007-05-14 Reporter: Ernest Mabuza

Shaik Appeal to Quash Part of Sentence

 

Publication 

Business Day
Date 2007-05-14

Reporter

 Ernest Mabuza

Web Link

www.businessday.co.za

 

Nearly two years after Schabir Shaik was sentenced to 15 years for corruption and fraud, his lawyers will argue that minimum sentencing legislation should not have been applied to one count of corruption, in the Constitutional Court next week.

Shaik’s lawyers say in heads of argument filed with the court that the trial court erred in sentencing Shaik to 15 years on one count of corruption and that this constituted a violation of his rights to freedom and to a fair trial.

Judge Hilary Squires sentenced Shaik to serve a prison term of 15 years on two counts of corruption and three years for a fraud conviction. The sentences were ordered to run concurrently.

The Constitutional Court is due to hear Shaik’s application for leave to appeal, including applications to consider evidence, on May 23 and 24.

The count referred to is count one, where Shaik was convicted of contravening the Corruption Act by making 238 payments to, or on behalf of, former deputy president Jacob Zuma from January 1997 to September 2002. The aim was to influence Zuma to perform his duties in ways that would be to the advantage of Shaik’s commercial interests.

Even if he succeeds, Shaik still faces 15 years for count three, for which he was convicted of corruption for trying to solicit a R500 000-a-year bribe.

Shaik’s counsel, Hoosen Gani, said in the papers that the high court applied the Criminal Law Amendment Act of 1997 retrospectively to count one, as the corrupt relationship that the court found existed between Zuma and Shaik began in January 1997 with the first payment.

The legislation, usually referred to as minimum sentence legislation, came into effect in May 1998 and prescribed mandatory sentences for a number of serious offences.

“It has been held that section 51 of the Amendment Act (a section that imposes minimum sentences for certain offences) does not have retrospective effect and is therefore not applicable to offences committed before it came into operation,” Gani argued in the papers.

The high court found that the offence was committed with the first payment, and subsequent payments simply went to the nature, extent and degree of the corrupt relationship, Gani said.

“As the Amendment Act was not of application, the sentence imposed on count one could not be lawful.”

Gani said the imposition of a fair and appropriate sentence was a constitutional component of an accused person’s right to fair trial.

“Section 35 (5)(n) of the constitution entitles an accused person to the benefit of the least severe of prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.”

With acknowledgements to Ernest Mabuza and Business Day.


*1       It's difficult to accept both the cogency of this argument, as well as its practical advantage to the convicted.

So the minimum sentence of 15 years is not valid, so the CC sends it back to the SCA or HC, who decide that 238 instances of corruption of a deputy president over 5 years and amounting to R4 million is worth 14 years, or 12 years or 10 years or 8 years - all running concurrently with another conviction for 15 years.

Or is this trying to get the CC to determine a precedent for sentencing when JZ goes down on this count?