Publication: The Star Issued: Date: 2005-11-17 Reporter: Jeremy Gordin Reporter: Reporter:

State Moved Goalposts, say Shaiks

 

Publication 

The Star
Date 2005-11-17

Reporter

 Jeremy Gordin

Web Link

 www.thestar.co.za

 

Brothers are angry over attempts to confiscate R60m

The Shaik brothers are crying foul over the way the state is pursuing its attempts to confiscate about R61-million from Schabir's companies, now managed by Mo.

The brothers say the state is pursuing Schabir for acts allegedly committed by Jacob Zuma in his capacity as ANC deputy president - yet Judge Hilary Squires expressly ruled against this when he convicted Schabir.

Last week the National Directorate of Public Prosecutions (NDPP) entered the ANC constitution into the court record to back its claim that Zuma acted illegally, even though solely in his capacity as ANC deputy president Schabir said to be pursued for acts allegedly committed by Zuma.

The NDPP's affidavit was in reply to an earlier Schabir submission that claimed the state was trying to confiscate his shares in African Defence Systems (ADS), the company that won part of an arms deal tender.

The Shaiks argue that Zuma's interventions in connection with these shares were not corrupt acts because Zuma performed them as ANC deputy president.

Squires ruled during Schabir's trial that a position in the ANC was not the same as "an office of the state" created by law.

Therefore, he added, it did not fall within the ambit of the Corruption Act *1.

After Schabir was convicted of fraud and two counts of corruption earlier this year, both parties agreed that about R30-million of the Shaik companies' assets would be "ring-fenced".

This would be done pending a case in terms of which the NDPP intended to confiscate certain Shaik money under the Prevention of Organised Crime Act 121 of 1998. 

The ring-fenced assets were primarily Schabir's shares in ADS.

The Asset Forfeiture Unit was also given R250 000 in cash to be held in trust.

On Monday the latest hearing was adjourned to January 18 at the request of Schabir's legal team.

But, said Reeves Parsee, the Shaik attorney, "we basically had no choice. We were effectively cornered into adjourning by the manner in which the NDPP has shifted the legal goalposts in the matter".

In an earlier answering affidavit, Parsee said the state had been close to a month late in filing its affidavits, forcing the Shaik team to scramble to get theirs in by the agreed dates. This kept the Shaik money in suspense for even longer.

The state also "doubled up" - that is, claimed about R60-million when the amounts from which Schabir was convicted of illegally benefiting totalled about R35-million.

He argued that the state did that by claiming certain sums more than once.

But the real nub of the problem, at least from the Shaik defence team's point of view, revolves around the state's new argument - put in at the eleventh hour on Friday - that Zuma's alleged contravention of the ANC constitution makes him as liable to be guilty of corruption as things that he did in his role as a government official. "It's because of this new claim that we had to adjourn," said Parsee, "which is obviously bad in financial terms for our client.

"And it opens up a whole new can of worms.

"Any proposition made by the state, which is not refuted by us, is deemed to be accepted. Therefore it is imperative that we deal with this new issue.

"Clearly we have been prejudiced by these recent developments."

With acknowledgements to Jeremy Gordin and The Star.


*1  That Corruption Act, but not the new Corruption Act.

Busted?

A very interesting situation will develop next year if the Two Thint are also found guilty. Then if the State proceeds as it has done here and is successful with assets forfeiture of assets being the proceeds of crime, then the State will own 80% of ADS.

If 20% of ADS is worth R60 million then 100% of ADS is worth R300 million and 80% is worth R240 million in 2005 Rands, possibly R301 million in 2007 Rands.

There is a litigant out there with a claim against The State and ADS for R149 million in 2002 Rands, or R306 million in 2007 Rands.

The maths works - great goalposts.