Publication: Cape Times Issued: Date: 2009-01-22 Reporter: Tania Broughton

Shaik Gets R5m in 'Secret Deal' with The State

 

Publication 

Cape Times
Date

2009-01-22
Reporter Tania Broughton
Web Link www.capetimes.co.za



Durban : Schabir Shaik, who is serving a 15-year sentence for corruption, has received a R5 million windfall *1 from the state in terms of a "secret" agreement signed late last year between his lawyer and the government.

In what is believed to be an unprecedented move, the National Director of Public Prosecutions has agreed to split the interest on Shaik's ill-gotten gains.

It was also established that Jacob Zuma's former financial adviser had not given up his fight to get back the whole R34m confiscated from him and his Nkobi group of companies, which were deemed to be the fruits of his crime.

It emerged in papers filed with the Durban High Court this week that Shaik had applied to the President of South Africa for the "reprieve and remission of the confiscation amounts".

A decision on this is still pending, it is stated.

The Durban court papers reveal a settlement agreement signed by Shaik's lawyer, Reeves Parsee, and the National Director of Public Prosecutions (NDPP) which settles a dispute over who is entitled to the interest on the seized R34m that accrued while Shaik launched various court challenges to the confiscation order.

With some R14m interest at stake, the row was headed to court *2.

But late last year, in terms of a negotiated settlement, made an order of court by Judge Achmat Jappie, the parties agreed to split the interest, giving Shaik R5m in cash.

This was after the state deducted about R2m which Shaik had been advanced to pay for his two unsuccessful legal bids to overturn an asset forfeiture order.

While the agreement was not stamped "confidential", one of its terms was that it was to be kept secret with "no public announcements" without the prior written approval of the other party.

However, the agreement was attached to a report recently submitted to the court by Trevor White, the curator tasked by the court to administer and oversee the forfeiture to the state of about R34m which trial judge Hilary Squires found to be Shaik's profit from his corrupt relationship with Zuma.

The money has been gaining interest since January 2006 while Shaik unsuccessfully attempted to overturn the forfeiture order in both the Supreme Court of Appeal and the Constitutional Court.

In terms of the deal struck with the NDPP, Shaik agreed to pay the money back if his court bids proved unsuccessful.

In return for the cash to pay for lawyers, Shaik put up his CellSaf shares as security. According to White's report, these shares have been given back to him and the legal fees have been deducted from his half of the R14m interest, leaving him with R5m which was paid into his attorney's account in December.

White said this left R41m in the account, which will be paid into the criminal asset recovery account once his fees and costs had been approved and deducted. The attached settlement agreement notes, however, that in the event of Shaik's application to the President succeeding entirely or partially, he reserved his right to reclaim the entire amount.

Meanwhile, it was reported recently that Shaik's lawyers are still looking into the possibility that a 2007 Supreme Court of Appeal judgment could result in his being released from prison early.

According to the judgment in the case of David Ashley Price versus the Minister of Correctional Services, Section 276 A of the Criminal Procedures Act allowed for the conversion of imprisonment into correctional supervision in a case where a person was sentenced to imprisonment for a period exceeding five years, but the date of release was not more than five years in the future *3.

The act allows for an application to the clerk or registrar of the court for the prisoner to appear before a court to reconsider the sentence.

In Shaik's case, his earliest date of release would be seven-and-a-half years.

He has already served about two years and four months and in slightly more than two months he would have served two-and-a-half years, meaning his earliest date of release would be less than five years "in the future".

If Shaik makes the application, the clerk or the registrar of the court must consult the prosecutor and set the matter down for a specific date on the roll of the court concerned.

After hearing the matter, the court may convert a sentence into correctional supervision.

With acknowledgements to Tania Broughton and Cape Times.



*1       This is actually a poor show for a couple of reasons :

This is simplistic to justify: the crime which lead to initially to the ownership of the assets had already occurred or was still in process long before arrest and indictment.

So in this case the asset and its interest should have been forfeited around November 2001 and not in January 2006.


*2      And this is where the matter should have gone, i.e. to formally determined what is correct and to set a precedent for the future (which should include a lot of such forfeitures from the Arms Deal alone *4).


*3      This wording, if correct says all that is necessary: Shaik has been in jail for some two years and has a sentence of 15 years. That leases 13 years to serve. Parole is not an automatic right, it is based on inter alia behaviour in prison and is only granted after parole hearings. Therefore the date of release is currently more than five years in the future.

In around 2016/7 the date of release will not be more than five years in the future.

Do the logic do the arithmetic.


*4      Why is Thabo Mbeki and the ANC in particular so fearful of a full and proper Arms Deal investigation?

It's mainly because they will have to give back something like R2 billion in criminally gotten gains and R1 billion in interest.

The ANC will be bankrupt and one of the ANC's favourite sons, Fana Hlongwane will have to settle for a lower class of callgirl.


All kudos to Tania Broughton for excellent investigative work to expose this kind of secretive nonsense.