Legal counsel for convicted fraudster Schabir Shaik said yesterday there was
no evidence to suggest that African National Congress (ANC) president Jacob Zuma
was bribed to help Shaik obtain shares in Thomson-CSF.
Martin Brassey SC told the Constitutional Court there was only "inferential"
reasoning by the Durban High Court and the Supreme Court of Appeal that Zuma had
intervened after Shaik fell out of favour with Thomson-CSF because of Shaik's
patronage of Zuma. Brassey said this ignored "undisputed evidence as to the
friendship, collegiality and some financial support" between the two.
Shaik, who is serving a 15-year jail term for fraud and corruption, is trying to
reverse the Durban High Court decision ordering that he forfeit to the state
proceeds of crime worth R33m.
The sum relates to the value of Shaik's Nkobi Investments' shareholding in Thint,
formerly Thomson-CSF. The shares were valued at R21m. The second benefit was the
accumulated dividends received by Nkobi Investments from its shareholding in
Thint, valued at R12m.
Nkobi Investments held 25% of the shares in Thomson, and Thomson held 80% of the
shares in African Defence Systems (ADS). Nkobi effectively had a 20% share in
ADS, which was awarded, as part of the Thomson Consortium, the government
contract to provide the combat munitions suite for the navy's corvettes in the
arms acquisition programme.
The high court and the appeal court held that Shaik received those benefits
because of his unlawful patronising of Zuma in his capacity as deputy president
and Zuma's intervention to assist Shaik in that capacity.
Brassey said another proposition not considered by the courts was that Thomson
must be proved to have reversed its decision to drop Shaik as a result of Zuma's
intervention. "There is no satisfactory evidence to support the inference that
Zuma was actuated by Shaik's bribe."
Brassey said the confiscation of R40m, including interest, was out of proportion
considering that the causal link between the crime and benefit had not been
established.
"One act of intervention by Zuma is grossly disproportionate with the amount
confiscated," Brassey said.
Wim Trengove SC, for the state, said Shaik should not be allowed to present a
new argument before court as the record of proceedings presented to the court
had not been designed to cater for the new argument. He also said the link of
causation proposed by Shaik was conceptually flawed.
"Why did Thomson go into partnership with Shaik? Was it because he was an astute
arms manufacturer ... or was it for his charm? He had Mr Zuma in his camp, and
he had Mr Zuma in his camp because he bribed him.
"Mr Shaik paid dearly for the assistance and influence of Mr Zuma. If these had
been available (to him) free of charge, he would not have paid for this,"
Trengove said.
The unfolding of events saw Thomson renege on its undertaking to help Nkobi
acquire a stake in ADS, Shaik got Zuma to intervene in 1998, and Zuma intervened
to get Shaik's company back into Thomson's favour.
"Is it not then plain that the benefit was obtained by the crime?" Trengove
asked.
The court reserved judgment.
With acknowledgements to Ernest Mabuza and Business
Day.