Publication: Cape Argus Issued: Date: 2004-10-06 Reporter: Estelle Ellis Reporter: Jeremy Gordin

Let Battle Commence



Cape Argus

Date 2004-10-06


Estelle Ellis, Jeremy Gordin

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There is a moment before a major trial starts. It is the moment when everyone settles down, the judge prepares to enter, the court orderly clears his throat before calling for "Silence in court".

On Monday, as Schabir Shaik goes on trial in the Durban High Court, it will be the moment filled with nerves and expectations - but mostly with the presence of the two "generals" of the legal teams before court: advocate William Downer SC and advocate Francois van Zyl SC. It will be the moment before war is formally declared between them.

In 1991, the Victorian wing of the Marine Hotel in Muizenberg was demolished. In the first prosecution of its kind in South Africa following the destruction of a national heritage building, Downer took two companies and their directors to court. Van Zyl was called to help them out of trouble.

Nobody can remember who won.

This time round it is different. For one thing, there are 56 000 pages of documents to read. And the whole country will be watching.

On this page we profile Downer and Van Zyl, as well as Judge Hillary Squires and Kessie Naidu who will be appearing for Thint (Pty) Ltd.

The Master of Diplomacy

Billy Downer SC, Lead counsel for the State

An alumnus of Oxford University, Downer is one of the most senior and respected state advocates in the country. A former president of the National State Advocates Society, he is as well-known for his relentless pursuit of better working conditions and salaries for prosecutors as for his dedication and tireless quest for convictions.

Downer has handled a number of high-profile fraud cases including the prosecutions of the directors of Fundstrust after the investment company collapsed in 1991. This led to losses of R17 million. In that case businessman Jan Marais was fined R30 000, another director Barry Engelbrecht served eight months in prison and Ansi Kamfer served 15 months' imprisonment before her sentence was converted to one of correctional supervision.

In 1997 Downer led the disastrous prosecution of former Tollgate director Mervyn Key on eight charges of fraud and theft involving R28.6m relating to Tollgate, which was liquidated in 1992. Key was later acquitted.

He is often called on to test the waters when new laws have to be applied.

Downer was sent to FBI training camp in Quantico to teach South Africa's first intake of Scorpions how to apply South African law to the American crime-busting techniques they were learning. Next he started up the first Asset Forfeiture Unit in the Western Cape until it was handed to his colleague Adrian Mopp.

He led the prosecution of rogue Scorpion Ashin Singh on charges relating to the theft of documents, defeating the ends of justice, interfering with investigations and releasing information without authority. The prosecution was later stayed.

He is the person called in when a trial calls for more than a good prosecutor but a good diplomat as well. He also successfully prosecuted Casparus Bressler for contempt of court. Bressler was found guilty of contempt after he told the Cape High Court that his daughter would not get a fair trial, for a traffic violation, from that court because "African men have an innate disrespect for women".

He also handled the first plea bargain in a fraud case in South Africa.

Downer has been lead counsel in the Shaik trial from the start. He also led the investigation of the affairs of Deputy President Jacob Zuma.

One of the benchmarks - if you'll pardon the pun - of an effective legal representative is the number of times he or she is mentioned in the law reports. Downer has one citing in appeal court judgments and 18 in SA criminal law reports.

The Ambassador of Justice

Francois van Zyl SC, Lead counsel of Shabir Shaik

A former State advocate and deputy director of public prosecutions, he represented the former accountant of Allan Boesak's Foundation for Peace and Justice, Freddie Steenkamp in 1997. Steenkamp had pleaded guilty to charges of fraud and theft. Before that he was the senior counsel for the Masterbond three - this time having to deal with a charge sheet and annexures of 1 000 pages.

He appeared for the alleged drug boss Colin Stanfield in the country's first "Capone prosecution". This style of prosecution, named after notorious gangster Al Capone who could not be found guilty of anything but tax evasion, is a well-known way of prosecuting suspected "organised criminals". Stanfield was found guilty of tax evasion of R2.6 million. Stanfield died on Sunday.

Next, Van Zyl was called to help Willie van Rensburg, a perlemoen diver, who was arrested for tax fraud of R2m. Like a great number of counsel at the Cape Bar, he had a chance to appear for German fraudster Jörgen Harksen during Harksen's almost decade-long fight against his extradition.

Van Zyl also appeared for the Noupoort centre in the inquest following the death of Logan Klingenberg, 16, who died during rehabilitation. The inquest ended in a finding that no one could be held liable for Klingenberg's death.

Two years ago Van Zyl's clients Peter Jooste, Colin Meder and Dion Thompson, all former directors of Kohler Cores and Tubes in Epping, walked out of court as free men after Van Zyl managed to have them discharged from charges of fraud and theft.

Last year he and advocate Roelof van Riet SC led the major legal battle against pharmaceutical companies over when they can be held accountable for damaging effects of their medicine.

Van Zyl has one citing in appeal court judgments and nine in SA Criminal Law Reports.

The Shrewd Showman

Kassie Naidu SC, Lead counsel for Thint (Pty) Ltd

Dubbed the silver fox by some commentators, Naidu shot to national fame when he became the leader of the evidence during the Hefer Commission, inquiring into allegations that former director of public prosecutions Bulelani Ngcuka was an apartheid-era spy.

The well-known senior counsel, adored by many who reorganised their lives to watch his cross-examination of many a witness on television, will have a much quieter role in the sequel to the drama. The charges against his client are expected to be dropped on the first day of trial.

He also drafted the answers to written questions asked by the Scorpions when they investigated allegations of corruption made against Deputy President Jacob Zuma. Ngcuka later declined to prosecute Zuma.

Apart from the Hefer Commission, Naidu also appeared for the families of the Motherwell Four at the re-hearing of former security policeman Gideon Nieuwoudt's amnesty application in Port Elizabeth. He led the defence during the prominent SBV heist trial in Durban and prosecuted the case of the three men involved in the Throb nightclub disaster which claimed the lives of 13 school children.

During the apartheid era he became well-known for having the death sentences imposed on the Queenstown Six set aside and for successfully fighting the conviction and sentence of Ebrahim Ismail - a high ranking ANC official who was abducted from Swaziland and charged for treason - set aside.

The Veteran Juggler of Publics and the Law

Mr Justice Hillary Squires, the presiding judge

Justice Hillary Squires, an 80-year-old veteran of the Bench, has been brought out of retirement to hear the Shaik trial.

Recalling a judge out of retirement is not unusual. It was done in 2001 to hear the marathon trial of three taxi bosses, accused of serial urban terrorism (and later acquitted) when Judge Braam Lategan was called back form his wine-making enterprises to preside at the trial.

Before that former deputy judge president of the Cape and now inspecting judge of prisons, Hannes Fagan, was called back from retirement to hear the case following a bomb blast in Worcester on Christmas eve in 1996.

Up to now trial where Judge Squires has presided made the headlines several times - most notable was the trial following the Shobashobane massacre on Christmas day in 1995.

Judge Squires received praise for keeping politics out of the court room, as well as for his critical judgement slamming the police and those who were allowed to get away.

Thirteen men, including the IFP leader for Izingolweni, Sipho Ngcobo, were convicted of 18 charges of murder and six of attempted murder after the trial.

He has given a number of significant defamation judgements. One is one of the few existing judgements dealing with what constitutes defamation during a commission. In June 1989 he found Mohamed Sadic Shah guilty of defaming the chairperson of the James Commission and a senior advocate. Shah was fined R2 500.

In another he had to preside over defamation case between two politicians. MP for Reservoir Hills in Durban at the time, Pat Poovalingam sued Amichand Rajbansi who was the MP for Arena Park in 1989.

Poovalingam claimed that Rajbansi had spread defamatory statements about him in a letter. Judge Squires found that this was part of what Rajbansi could do as a member of parliament and dismissed the claim.

In 1989 he gave a landmark case refusing to interdict the Mail & Guardian from publishing a story the sequels to an article titled "How IFP officials milked KZN millions".

Judge Squires has four citings in appeal court judgements and 24 in SA Criminal Law Reports.

With acknowledgements to Estelle Ellis, Jeremy Gordin and the Cape Argus.