Publication: Mail and Guardian Issued: Date: 2006-11-11 Reporter: Serjeant at the Bar

The Crook, The Court and The Political Ambitions of Jacob Zuma



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Serjeant at the Bar[]

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This week, a man described by the trial judge as ambitious, far-sighted and brazen -- if not positively aggressive -- in pursuit of his financial interests found that our legal system may grind slowly, but it sure grinds finely. The Supreme Court of Appeal handed down a judgement that in its fine attention to detail exposed Schabir Shaik, not only as a ruthless crook, but also as the person who may have destroyed the political ambitions of Jacob Zuma.

Politically, the two key charges were count one and count three. On count one, Shaik was charged with contravening the Corruption Act by making payments to or on behalf of Zuma, with the clear intention of influencing him to perform duties to Shaik’s advantage.

The court noted that, during the period with which the case was concerned, Zuma was the provincial minister for economic affairs and tourism -- and subsequently the deputy president of the republic. Constitutionally, an MEC and a Cabinet member (including the deputy president) may not undertake paid work, act in a manner that conflates his official responsibilities and private interests, or use his position to enrich himself or another person.

Shaik made 238 payments for the benefit of Zuma totalling R1,2-million from October 1995 to September 2002. The court held that evidence from the books of the Shaik group of companies and relevant witnesses revealed that Shaik could not conceivably have regarded any of these payments as a consideration to Zuma.

Unsurprisingly, the court accepted Judge Squires’s adverse assessment of Shaik as a witness. Jeremy Gauntlett SC, on behalf of Shaik, had argued that the payments to Zuma were made out of friendship or were loans. But the court held that there was considerable evidence to show that this friendship was persistently and aggressively exploited by Shaik for his own and his group’s business advantage.

The court found that the most important illustration of Shaik’s exploitation of Zuma concerned the South African National Defence Force arms procurement programme, where Zuma’s efforts contributed to Shaik’s acquisition of a material interest in a lucrative contract to supply armaments for the navy’s new corvettes.

Count three involved the notorious encrypted fax. Shaik was charged with corruption in that, in collaboration with Zuma and Alain Thétard of French arms supplier Thomson- CSF, Thomson offered Zuma R500 000 a year until a certain specified event. In return, Zuma would protect Thomson from investigation of its role in the arms deal.

The encrypted fax was the printed version of a handwritten draft letter compiled by Thétard following a meeting with Shaik and Zuma. It was addressed to his superiors in Paris. It states that Shaik requested Thomson to make payments in return for the protection that Thétard had asked for Zuma’s confirmation of the request, which was done in an encoded form.

Shaik’s legal team objected to the admissibility of the fax. It was manifestly a key document. A number of self-styled legal experts from the press and radio were confident that its admissibility would be rejected by the court and with it the state’s case on count three.

But the law on hearsay evidence (in this case the document was hearsay as the author of the fax did not testify) allows this evidence where, for example, there is further evidence to support the accuracy of the document. The court found that there was evidence to prove, beyond reasonable doubt, that Shaik had requested Thomson to grant a bribe to Zuma.

Significantly for a future Zuma trial, the court held that even if he was unaware of the request or had not agreed to accept the bribe, there was proof that Shaik had persuaded Thomson to make the bribe.

The judgement holds severe implications for Zuma. If tried, he will need to explain how the provision to Shaik of political favours notwithstanding, he thought that the R1,2million was simply a manifestation of a convicted crook’s beneficence. He will also need to explain his role in the meeting between himself, Thetard and Shaik in March 1999. If tried, Shaik will be of little use to him after the confirmation by the court of Squires’s adverse credibility finding.

Arguably of greater significance is the court’s finding that the benefits given by Shaik to Zuma were contrary to the latter’s constitutional duties as provincial minister and deputy president. If he knew of Shaik’s purpose, Zuma is clearly guilty of a constitutional breach of duty.

Of course, Zuma may prove to be a far better witness then Shaik. He may have plausible explanations for his conduct. Some evidence in this trial may not be admissible in a future trial. He may have a case that he should have been tried with Shaik. Thus, the future of any litigation against Zuma is still uncertain.

But this week’s judgement will probably be remembered more for the threat it posed to Zuma’s political ambitions than for the corrupt acts of an ambitious, brazen friend.

With acknowledgements to Serjeant at the Bar[] and Mail & Guardian.