Publication: Mail and Guardian Issued: Date: 2004-10-15 Reporter: Sam Sole Reporter: Stefaans Brummer

How Will the Shaik Trial Shape Society?



Mail and Guardian

Date 2004-10-15


Sam Sole, Stefaans Brummer

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The mustiness of masonry corroding in the sea air seeps from the Durban High Court building where Schabir Shaik is on trial. A stately, though ageing structure, it symbolises both permanence and decay.

This trial is in part about the kind of South Africa we are constructing — one of decay or of rights-based permanence.

When Shaik tendered his "not guilty" plea on Wednesday the choice facing the nation became much clearer. The essence of his plea is that yes, he gave to the deputy president and to the ruling party with the one hand as he received state contracts and political backing for his business with the other — but so what.

What Shaik is asking the court to accept is that there was no nexus between the favours he extended and the benefits he received. That if he gave easy "loans" to Deputy President Jacob Zuma, it was because of their "close friendship" forged in the struggle.

What Shaik (and by implication the deputy president) is asking the country to accept is that a normal state of affairs includes this kind of blur where only fine legal argument can undo the confusion of the interests of the state, a party, a politician and a businessman.

They would have us believe that the drafters of our Constitution did not really mean it when they said that a member of the executive should not "expose himself to any situation involving the risk of a conflict between his official responsibilities and private interests".

Shaik's plea explanation is notable in the volume of factual concessions it makes to the prosecution. Leaving aside the R500 000 annual bribe that Shaik allegedly organised from French arms group Thales for Zuma — which Shaik and Zuma deny — Shaik does, in his plea, admit to a magnanimity to Zuma that it seems most business people would not extend to bosom friends, and certainly not from company accounts.

Shaik does not substantially dispute the amount of R1,25-million that the state alleges he and his companies transferred.

About R270 000 of this, he claims, is not properly described as for Zuma's account. Rather, such as in the case of a Durban beachfront flat he rented for Zuma's use, he typifies the expense as for the benefit of the African National Congress.

But as for the remaining almost R1-million, he admits most of it was for Zuma's benefit, although he claims that in time this became part of a "revolving loan".

On his own version it is hard to escape the conclusion that Shaik did the deputy president an extensive and extended favour. He also does not deny that Zuma made at least one crucial intervention in favour of his (Shaik's) Nkobi group.

In a version not too dissimilar to that of the prosecution, Shaik confirms that Zuma assured Thales that Shaik and his companies were "acceptable to the ANC" as empowerment partners. This was after Thales had heard that "senior members of the ANC" did not approve of Shaik and his Nkobi group and as a result developed doubts about whether they were suitable as partners.

It is common cause that Zuma's intervention meant that Thales cut Nkobi into the acquisition of local arms company African Defence Systems, which in turn ensured a stake for Nkobi in the state's acquisition of navy ships.

But Shaik makes an interesting distinction to which the prosecution seems not to have paid any particular attention: Zuma, he says, was acting in his capacity as ANC deputy president, rather than as a state functionary.

In doing so, Shaik does two things:

One, he tells the court that this exercise of influence by Zuma was party business and therefore in the private domain, where neither the constitutional provision on office bearers' interests nor the law have the same reach as they would if Zuma were acting in an official capacity;

But two, he tells the public that it is acceptable, or at least normal, for the ANC to indulge in a practice that may be called "nomination"; a type of influence-wielding that runs parallel to formal tender procedures, where (often foreign) bidders are teamed up with (local) empowerment partners deemed "acceptable to" the ruling party.

Nomination gives the tenderer an expectation of success, since it feels it has secured political blessing. And it gives the nominator a degree of power that, although not derived from law or due process, allows it to influence the composition of winning tenderers and possibly even the tender process itself.

Where the nominator is an individual politician — Zuma, for example — he or she could use the power to negotiate individual reward.

In his plea explanation Shaik repeats his familiar boasts of proximity to Thomas Nkobi, the late ANC treasurer general. And, as mentioned, he maintains that some of the payments the state alleges he made on behalf of Zuma were in fact for the benefit of the ANC — as if that does not introduce its own set of problems.

Effectively left hanging by both Shaik and the prosecution is the allegation, first raised by the prosecution as a claim made by Shaik, that part of the Nkobi group is owned by the ANC. If this is factual, Shaik is essentially arguing that Zuma, as ANC official, urged a foreign arms bidder to link up with a company which includes the ANC, so the ruling party in fact benefited from a multibillion-rand state contract.

It is this opaque area of parallel influence-mongering, with its concomitant potential for counter-performance by the nominee in favour of the politician or party, which Shaik asks the public to accept as a fact of political life.

Judge Hilary Squires and his court have a decision to make in a criminal case, and with that no person may interfere. Separately, the court of public opinion needs to decide the kind of society that will succeed the old.

With acknowledgements to Stefaans Brümmer, Sam Sole and the Mail & Guardian.