Documents Key to Prosecution of Corruption
The trial of Schabir Shaik proved how crucial a role documents could play in the successful prosecution of corruption, the prosecuting advocate Billy Downer has said.
Downer was speaking on the second day of a PricewaterhouseCoopers conference on economic crime in Cape Town.
Referring to the famous encrypted fax in the trial, Downer said it was crucial in proving the existence of the bribe of R500 000 a year that Shaik had allegedly sought for Jacob Zuma, then deputy president, from Thomson CSF.
At the trial, computer expert Bennie Labuschagne said the fax was allegedly written by Alain Thetard, Thomson CSF's South African manager. The state alleged Shaik had spoken to Thetard about the bribe for Zuma at a meeting in Durban in March 2000.
The bribe was allegedly sought to protect Thomson CSF against any investigations regarding the multi-billion rand arms deal.
In the Shaik trial, Judge Hilary Squires had said that documents were "perceptively more helpful than witnesses" because they "produced a clearer picture of contemporary events than fallible human memory could".
In the Allan Boesak trial, the ultimate confirmation by the Supreme Court of Appeal of the previous court's conviction rested on a single letter written by Boesak, said Downer.
But at the same time, the evidence of witnesses in corruption cases was "as critical as in any other criminal case, if not more so, because corruption is an insidious crime".
Witnesses included honest insiders, secretaries, accountants and accomplices.
Downer said good investigation was at the heart of successful prosecutions in large corruption trials.
"Only a good investigation will deliver a good prosecution," he said. "It represents the bulk of the work and it is worth investing the maximum resources in a corruption investigation because the investigation never ceases."
He said it was a popular misconception that investigations finished once the trial started, but this was untrue, especially in commercial cases where the range of documentary evidence was vast and new aspects and especially new defences arose at every stage.
Downer said prosecutors in corruption cases also needed to be investigators.
Unlike the old school "classic" model where policemen investigated and prosecutors prosecuted, the National Prosecuting Authority prosecutors - in terms of the "Scorpions model" - led the investigation while fulfilling their prosecutorial function.
The advantage was that it led to a "seamless investigation" and "provided the best imperfect model in a resource-starved system," said Downer.
The biggest disadvantage, he said, was that prosecutors sometimes found themselves having to become witnesses.
Meanwhile, Scorpions head advocate Leonard McCarthy told delegates the country was winning the battle against economic crime despite statistics which show the contrary.
McCarthy said since the inception of the Scorpions in 2001, it had handled 1 050 projects and finalised 983 investigations and 850 prosecutions with a 90% conviction rate.
It has also confiscated assets to the value of R750 million and arrested 1 600 perpetrators of fraud and corruption. It had conducted 1 400 searches of properties and had seized drugs and other contraband to the value of R6 billion.
The Scorpions were currently focusing on 57 key syndicates and investigating 30 cases of financial crime involving a total of R18bn.
Referring to the value of plea bargaining, McCarthy referred to the Count Agusta corruption case, involving former Western Cape premier Peter Marais, in which Agusta had agreed to plead guilty and pay a R1m fine. "I thought it was important to get a conviction out of his own mouth."
McCarthy said he rejected the view that South Africa was "mired in corruption" and losing the battle against it.
He said one should see things in context, saying the level of fraud in the US exceeded the GDP of Africa. "Corruption is a worldwide problem and we are dealing with it," he said.
A 2004 survey had showed 91% of South Africans felt the Scorpions the most capable anti-corruption institution.
With acknowledgement to David Yutar and Cape Argus.