Publication: Business Day Issued: Date: 2007-10-03 Reporter: Ernest Mabuza

Shaik Finding Turns Legal Heat On Zuma

 

Publication 

Business Day
Date 2007-10-03

Reporter

 Ernest Mabuza

Web Link

www.businessday.co.za

 

Durban businessman Schabir Shaik will have to serve his 15-year jail term after the Constitutional Court yesterday dismissed his appeal against his conviction and sentence on two counts of corruption and one on fraud.

The court’s decision will probably help the state in its efforts to charge former deputy president Jacob Zuma, but prosecutor Billy Downer said the outcome of other cases was being awaited *1 before a final decision was made about Zuma.

Central to the conviction was the fact that Shaik ­ who was Zuma’s financial adviser ­ and his companies had, from October 1995 to September 2002, corruptly made payments to Zuma in order to encourage him to use his name and political influence for the benefit of Shaik and his business enterprises.

The court gave Shaik leave to appeal against orders for the confiscation of his assets on the constitutional grounds that no one may be arbitrarily deprived of property.

The prosecuting authority welcomed the decision, saying the judgment showed the state’s view on corruption was right.

Shaik had appealed on several grounds, including the allegation that his trial was unfair as he had not been joined with Zuma and French arms company Thint and its director Alain Thetard as co- accused.

Shaik also said his right to a fair trial was infringed when Downer allegedly overstepped the line between prosecutor and investigator.

Shaik had argued that since his trial concerned corruption, which was a reciprocal crime, a joint trial should have been held, unless there were good reasons not to.

The court said Shaik and his companies could have subpoenaed Zuma to testify in their trial, which they would not have been able to do if he were a co-accused.

“There is thus no indication that the applicants suffered prejudice whatsoever as a result of the failure to charge Mr Zuma, Thint or Mr Thetard, or even that they would have gained any advantage from their presence as co-accused,” the court said in its judgment.

While it was possible that a particular accused was disadvantaged by the fact that someone else was not charged in the same trial, this did not render the trial unfair.

“It is not entirely insignificant *2 that the absence of Mr Zuma and others as co-accused was not raised by (Shaik and his companies) in the high court and the Supreme Court of Appeal as a threat to the fairness of the trial.”

The court also dismissed Shaik’s leave to appeal against his sentence and said his crimes commenced after the dawn of democracy and continued after legislation had been enacted that advanced black economic empowerment.

Shaik had argued that the high court and the appeal court had failed to consider the socioeconomic context of discrimination that prevailed at the time the offences were committed, and said this discrimination had denied him equal opportunities and caused him to commit economic crimes.

The judges said the oppressive past could not excuse crime. While poverty, a lack of education, or an unhappy childhood could be mitigating circumstances, nevertheless “millions of people who suffered severely under apartheid have chosen to lead honest lives and to avoid crime, often against many odds,” the court said.

With acknowledgements to Ernest Mabuza and Business Day.


*1       The prudent, but clearly not strictly necessary, approach.

But by the time these outcomes are obtained, probably in mid-November, the cheese will be very ripe indeed.


*2      Read : "entirely significant".