Publication: Business Day Issued: Date: 2007-05-24 Reporter: Ernest Mabuza

Absence of Zuma Unfair to Shaik, Appeal Told

 

Publication 

Business Day
Date 2007-05-24

Reporter

 Ernest Mabuza

Web Link

www.businessday.co.za

 

Lawyers for convicted financial adviser to former deputy president argue his case before the Constitutional Court

The prosecution’s failure to charge Durban businessman Schabir Shaik together with his alleged fellow conspirators, Jacob Zuma and arms company Thint, was unfair to Shaik, the Constitutional Court heard yesterday.

“People who are alleged to be conspirators should be tried together,” said Shaik’s counsel, Martin Brassey SC. “It is generally undesirable to try them separately. Truth seeking suffers if co-conspirators are tried separately. *1 A failure to comply with that principle can make a trial unfair.”

The court yesterday heard Shaik’s application for leave to appeal against the Supreme Court of Appeal judgment, which confirmed convictions and sentences imposed on Shaik and his companies. The court would not decide on the merits of the case, but only on whether it was in the interests of justice to permit Shaik and his companies to appeal.

The state charged Shaik and Thint in 2004, but dropped the corruption charge against Thint on the first day of Shaik’s fraud and corruption trial in October 2004. The state later charged Zuma with corruption after Shaik was convicted in June 2005, but the case was struck off the roll last year.

When Judge Sandile Ngcobo asked Brassey what prejudice Shaik suffered from being charged separately, Brassey said the trial against Shaik was a dry run.

“The prosecution knows it has a prima facie case against one accused. Shaik is used as a dummy or a trial run. He should have an opportunity to confront his co-conspirators.”

Brassey also said that had Zuma appeared as a co- accused, Shaik’s trial would have turned out differently. Zuma might have testified to the relationship the two had.

Brassey said Zuma might have testified about how Shaik had helped him as a comrade or as a son helped his father. It was wrong for the prosecution to separate trials to obtain a strategic advantage.

Brassey said in a case where fellow conspirators were available, there should be a good reason placed before the court as to why they were not present in the same trial.

“When there are conspirators who are available and the state believes it has a prima facie case… the state must show special circumstances why it could not prosecute the co-conspirators together. Once there is an unexplained reason for non joinder, there should be no trial.”

Brassey said the failure to charge all conspirators together resulted in the Durban High Court and the Supreme Court of Appeal relying on an encrypted fax for evidence.

In Shaik’s criminal trial, the Durban High Court and Supreme Court of Appeal accepted a fax by former Thint boss Alain Thetard as evidence that Shaik secured a R500 000-a-year bribe for Zuma from French arms company Thomson-CSF.

“The trial court and the SCA were obliged to rely on hearsay evidence. Documents were expected to speak in lieu of evidence.

“This process is notoriously error-prone,” said Brassey.

He said the role of lead prosecutor Billy Downer was irregular as Downer could not be both an investigator and prosecutor.

The hearing continues.

With acknowledgements to Ernest Mabuza and Business Day.


*1       This, like the others, is such a nonsense argument.

Shaik had the right to call, indeed subpoena, Zuma as a witness.

The facts are that Shaik failed to subpoena Zuma as a witness and Zuma declined to be called as a witness.

It Zuma had been on trial he might well have declined to give evidence at all, as is an accused's right, or he might have given evidence that suited himslef, but was to the detriment of Shaik.

Di's nou klaar, verby.