Heinrich Schulze

BLC LLB (UP) LLD (Unisa) is a professor of law at the University of South Africa

January 2007 (1) South African Law Reports 1 to 331 (week 1 – week 3); [2006] 4 All SA Law Reports vol 4 December no 1 (pp 417 – 514); and No 2 (pp 515 – 638)

Criminal law

Corruption: The appeal in the high-profile corruption case involving the Durban-based businessman, Schabir Shaik, has now reached the pages of the law reports. The appeal case (there were actually two cases, the first one was the appeal, the second an application for leave to extend the scope of the appeal) has been reported under the citations of S v Shaik and others (No 1) 2007 (1) SA 242 (SCA) and S v Shaik and others (No 2) 2007 (1) SA 316 (SCA).

The appeal followed on a protracted criminal trial involving charges of fraud and corruption against Shaik and a number of companies which he either controlled or in which he had a major interest before Squires J and assessors in the Durban High Court. The gist of the charges involved allegations that Shaik had paid money to one Zuma, a high-profile ANC politician, in return for certain political favours by Zuma to Shaik. Shaik was convicted on all three main counts of fraud and corruption and sentenced to 15 years’ imprisonment. The trial lasted more than six months. It generated huge media interest and attracted a great deal of public attention. More than 40 witnesses testified. The record comprised more than 12 000 pages with oral testimony constituting more than 6 000 pages. The reported decision of the appeal case (as well as the application to extend the scope of the appeal) too generated a fair amount of paperwork. The first of these decisions by the SCA yielded 73 pages in the law reports, while the second decision comprised 14 pages in the law reports.

In a joint judgment (the SCA bench consisted of Howie P, Mpati DJP, Streicher, Navsa and Heher JJA) Shaik’ s convictions in the court a quo on both the corruption and fraud charges were confirmed and his appeal accordingly dismissed.

Suffice it to mention here that the SCA held that Shaik had given Zuma benefits that were not legally due at a time when Zuma held public office. It was further held that if Shaik had given these benefits to Zuma with the intention of influencing him to commit, or omit to do, any act in relation to his duties in terms of ss 96(2) or 136(2) of the Constitution, then he had committed an offence in terms of s 1(1)(a)(i) of the Corruption Act 94 of 1992. After weighing all the evidence, including the fact that Shaik was not in a position to repay the money to Shaik, the SCA concluded that some ulterior reason had moved Shaik to make the payment to Zuma. The ulterior reason was that Shaik in paying the money to Zuma, intended Zuma to use his political influence in the promotion of Shaik’ s business. This, in turn, meant that Shaik had intended to influence Zuma to act in conflict with his (ie, Zuma’s) duties as public official in terms of the Constitution.

With acknowledgements to Heinrich Schulze and De Rebus.