Shaik’s defence team will study the judgment on Monday closely and try to bring an appeal in the Constitutional Court, reports KARIMA BROWN

SCHABIR Shaik will pack his bags this weekend and prepare himself for a stint in prison as the judges of the Supreme Court of Appeal stand poised to deliver the verdict in his appeals against various fraud and corruption charges.

According to highly placed sources, Shaik’s bid to stay out of prison is likely to fail and the controversial businessman will have to serve at least three years behind bars, which is the sentence handed down by the Durban High Court in convicting him for fraud last year.

On Friday Shaik told a Johannesburg radio station that he was ready to face jail.

Sources in his camp also confirmed they expect Shaik to lose at least one of the three appeals he has brought before the court. This is understood to be his appeal against the fraud conviction, which is related to Shaik’s elaborate attempts to hide payments he made to former Deputy President Jacob Zuma. Because Shaik has not appealed the three year sentence linked to this conviction, he will have to start serving time on Wednesday.

While Shaik’s fate looks all but sealed, Monday’s verdict in the Bloemfontein court could determine Zuma’s political future. The prosecution in Zuma’s own botched corruption trial are watching proceedings in the Appeal Court closely. Should Shaik’s original conviction for corruption be upheld, it is likely that Zuma will be re-indicted and face mirror image corruption charges to those used to convict Shaik. Shaik was Zuma’s financial advisor, and the Durban high court found the businessman had a “generally corruption” relationship with the fallen politician.

Re-indictment will hobble Zuma’s chances to succeed President Thabo Mbeki as African National Congress (ANC) president at the party’s elective national conference next year. It is also likely that Zuma will be on trial during the party’s national policy conference in July, increasing the likelihood of a popular backlash against Mbeki, similar to last year’s national general council meeting.

A new Zuma trial will have dire implications for SA’s political elite, and may mar the last two years of Mbeki’s tenure in office. Zuma sources say the beleaguered politician will mount a “no-holds barred” defence to avoid doing jail time. This could involve calling Mbeki and several former cabinet colleagues to testify about their own roles in the arms deal corruption drama. Zuma will also seek to show that most members of SA’s political elite are the beneficiaries of financial largess from private businessmen like Shaik.

“We will want to show that Zuma is no different from other politicians and we will subpoena the executive members’ asset register from parliament,” said a source close to Zuma.

The National Prosecuting Authority (NPA) also faces a potential political quagmire from the Appeal Court verdict. While they will welcome the likely endorsement of Shaik’s convictions, this will place pressure on the state to recharge Zuma. Prosecutors publicly vowed to reinstitute corruption charges against Zuma following the collapse of their case in the Pietermaritzburg High Court in September. They said their next move would depend partly on the outcome of the Shaik appeals, as well as the state’s own appeals against court findings overturning the warrants used to raid Zuma and his associates last year.

On Friday the state cleared the first one of these hurdles when the Pietermaritzburg High Court granted it leave to appeal against the voiding of the search and seizure warrants on Jacob Zuma’s properties and that of his attorney, Michael Hulley.

However the state cannot afford to be gung-ho about recharging Zuma, regardless of the Shaik appeal verdict. The NPA will be under pressure to proceed speedily against Zuma, to avoid a repeat of the constant delays that led to the collapse of their first attempt against him.

The appeal court judgment, to be handed down at 9.30am, will raise a number of intriguing legal and political questions.

In the seemingly unlikely event of Shaik winning his appeal on all counts, this will be end of the road for the state and time and resources spent on the prosecution of Shaik will have gone to waste.

But should Shaik lose, his legal team will immediately scour the judgment looking for an avenue through which he might make a final attempt to save himself in the Constitutional Court. They will have to find ways to attack the judgment in a way that raises constitutional questions. Finding grounds for such an attack will be the first hurdle.

At the same time, they will have to deal with the problem that their client has until Wednesday to report to jail and begin his sentence, likely to be at least three years. The defence will then have to prepare an urgent court action asking that he be allowed to stay out of prison pending the finalisation of an application to the Constitutional Court.

Complicating matters is that the court action to decide whether he will be granted bail would have to take place in the Durban High Court. Once that question is resolved, Shaik’s team would prepare papers asking the appeal court for leave to take the matter to the Constitutional Court. Even if the appeal court agreed, however, it could only go to the Constitutional Court if judges in that court agreed to take the issue on. And that would depend on how convincing a case Shaik’s lawyers made for the claim that a constitutional matter was at stake.

One problem they would have to face in persuading the court is that no constitutional issue has been raised in any of the legal disputes heard until this point. In other words, such an application would look like a desperate afterthought and the court might not agree that a genuine constitutional question has been raised.

If the Constitutional Court turns Shaik down, and refuses to consider the matter, that will mark the end of the road for both Shaik and his friend Zuma.

Though Shaik and Zuma’s fates are inextricably tied, legally speaking their cases have no connection with each other. This is because of a legal principle that holds that one court officially “does not know" what happened in any other court. A trial judge in a new Zuma trial would be obliged not to take into account the trial and appeal proceedings against Shaik.

While a defeat for Shaik this Monday could mean that Zuma faces a new corruption trial, the opposite is almost certain if Shaik has a good day. One legal expert, who did not want to be identified, said that if Shaik were to be acquitted by the appeal court it was highly unlikely there would be any further prosecution of Zuma.

Whatever the outcome, the saga of the prosecution of Shaik and Zuma has severely tested the NPA. Its institutional credibility and even its future still hangs in the balance and the question marks over the NPA are only really likely to be cleared by the end to the long-running drama. The end does not seem near, since the likely outcome is that Shaik will lose, leaving the NPA the task of conducting the mother of all prosecutions against the country’s former deputy president. The ANC will also have to pick up the pieces on Monday, whatever the outcome.

With acknowledgements to Karima Brown and The Weekender.