Publication: The Weekender Issued: Date: 2007-02-17 Reporter: Ernest Mabuza Reporter:

Shaik Appeal is ‘Vexatious and Frivolous’

 

Publication 

The Weekender

Date

2007-02-17

Reporter

 Ernest Mabuza

Web Link

www.bday.co.za

 

Convicted fraud Schabir Shaik and his companies had attempted to manufacture constitutional issues by adducing new evidence that was not before the Supreme Court of Appeal or the trial court, raising a wide range of material disputes of fact, the state argued this week.

The state is opposing Shaik’s appeal in the Constitutional Court against his corruption and fraud conviction and jail sentence.

The state’s reply came on Thursday, the same day Correctional Services Minister Ngconde Balfour ordered Shaik’s transfer from St Augustine’s Hospital in Durban to Westville Prison. Shaik had been in hospital for 84 days for a variety of ailments.

The state said Shaik placed before the Constitutional Court 3000 papers previously not placed before the Supreme Court or the high court. The bulk of the new material consists of papers placed before Pietermaritzburg High Court Judge Herbert Msimang in an application by the state for an adjournment in the prosecution of Jacob Zuma. The papers also contain the counter-application by Zuma for a permanent stay of prosecution.

The state said a cursory perusal of the papers in the Zuma matter would reveal that they contained serious, often scurrilous and largely unfounded allegations of impropriety against the National Prosecuting Authority.

“So central is the new factual material, that apart from general descriptions of the charges, their defences and the judgments of the high court and the Supreme Court of Appeal, the applicants make no reference whatsoever to the Supreme Court record,” Scorpions senior special investigator Johan du Plooy said in his answering affidavit.

Du Plooy said any constitutional issue that arose during the course of a criminal prosecution must be properly raised before the high court so that it might be considered dealt with in a reasoned judgment. He said Shaik was unable to point to any constitutional matters that were raised before the high court or the Supreme Court of Appeal.

“To grant (Shaik and his companies) leave to appeal in these circumstances would open the door for every convicted person with sufficient money, who has reached the end of the road, to engage new counsel and prolong the process for as long as new and ingenious legal points can be conceived,” Du Plooy said.

He said Shaik made little attempt to demonstrate that the Supreme Court had erred in its analysis of the evidence before it.

Du Plooy said Shaik’s application had not been brought in good faith, but was an attempt to avoid the consequences of convictions and sentences properly imposed and confirmed on appeal *1.

“I thus submit that this application for leave to appeal is vexatious and frivolous, that it has no prospects of success and that it is not in the interests of justice to allow leave to appeal.”

Du Plooy also questioned Shaik’s challenge on his sentencing and said if the court accepted it, it would constitute a new principle in corruption cases.

Shaik said the high court and the Supreme Court had wrongly disregarded a mitigating factor, namely that he and his companies had committed corruption at a time when the economic effects of apartheid persisted, and had not yet been alleviated by new-order empowerment legislation *1.

“It is not surprising the applicants did not make these hopeless submissions *1 before the high court or Supreme Court,” Du Plooy said.

With acknowledgements to Ernest Mabuza and The Weekender.


While Shaik's counsel in his High Court trial and SCA request for leave to appeal surely realised the hopelessness of such nonsense, Shaik is fighting in the Constitutional Court no only for himself.

One of the main consequences of convictions and sentences properly imposed by the High Court and confirmed on appeal (actually the SCA refused request for leave to appeal in most instances) by the SCA, is the almost automatic conviction of Jacob Zuma and The Two Thints.

Regarding sentencing, Zuma must also get 15 years in St Augustine's Hospital because the SCA has now effectively made the 15 years a pre-ordained given.

Now Alain Thetard has done a runner and the NPA hasn't been able to charge Pierre Moynot in his own name, so that leaves sentencing of The Two Thints as a juristic person.

For a start, a company found guilty of corrupting a deputy president for shielding it from a corruption investigation deserves no less than :