Presenter : In Durban it’s still very much all eyes on the High Court where Judge Hillary Squires continues to preside over the Shaikh trial. Shaikh of course, yesterday found guilty on all three counts, 2 of corruption, 1 of fraud. Now the process of sentencing has begun. Stephen Grootters joins us from the Durban High Court. Stephen, good afternoon to you. What’s been happening this morning?

Stephen Grootters : Good afternoon Chris. Well, today we’ve had evidence in aggravation of sentencing, we’ve had a researcher from the Institute for Security Studies, his name is Hennie van Vuuren.  He’s a man who has come to be known as the expert on corruption and the effects of corruption. He was brought to the court today by the prosecution. They want Judge Hillary Squires to sentence Schabir Shaikh to a lengthy custodial term in jail. He told us the effects of corruption on developing economies, he said, corruption costs Africa billions of dollars, it costs South Africa millions of dollars and the people who end up paying are the poor. He says they pay through lost opportunities all so that the few officials can “live beyond their means”. He said that the construction and defence industries were particularly vulnerable to corruption and were known for rampant bribery. So when you look at the fact that Thomson CSF, is the company name in this case, we can see really where prosecutors are going with this evidence. Hennie van Vuuren giving really the academic background to the effect of corruption and hoping Judge Hillary Squires reaches his decision on what kind of sentence would be appropriate.

Presenter : I think back Stephen, in history, to other large armaments bribery cases and airline bribery cases, aeroplane manufacturing cases, where eventually the companies themselves were brought to trial and paid in certain instances very large fines indeed. Has Thomson had a watching brief at the trial of Shaikh? Have they had a lawyer sitting quietly in the background making notes?

Stephen Grootters : They have, his name is Kessy Naidoo. He’s well known in the legal circles and of course was in the Hefer commission. He was here yesterday, he was not here today I noticed. So yes, he’s been here sitting throughout the trial. A couple of days, I noticed, he skipped off when they were talking about the charge of fraud which doesn’t relate to Thomson at all and we mustn’t forget that Thomson, which has now been re-named Thint and was formerly also known as Thales, was a company that was originally accused number 12 in this case. Those charges were withdrawn. They were not dropped, they were withdrawn by the State right at the beginning. At the time there was a lot of speculation that perhaps the charges that we’ve seen withdrawn under some sort of an agreement with the State, that they were being produced, Alain Thetard to testify. We know that didn’t happen. We don’t know if those charges are going to be re-instated. We’ll have to wait and see.

Presenter : Now the sentencing process Stephen, what happens from hereon in? What’s the sequence of events?

Stephen Grootters : Chris, on Tuesday we’ll have evidence, we’ll have witness testimony in mitigation of sentence. So, the defence will ask people to come to testify as to why they believe Schabir Shaikh should not be harshly punished. And then we should, we’re expecting really, to have arguments about sentencing in aggravation and mitigation probably on Wednesday morning. We might have a sentence for Schabir Shaikh, the final verdict if you like, might be as early as Wednesday afternoon or possibly Thursday morning. So, sometime next week that’s what it looks like at the moment, but it will depend on the witnesses the defence wants to bring.

Presenter : Stephen, am I right in my understanding of the various media reports on this subject that there is a minimum prescribed sentence laid down by the law, beneath which Judge Squires may not go and that is 15 years?

Stephen Grootters : That is 15 years for each of the 3 charges, Chris. The reason for that is not simply because they are corruption and fraud charges, it’s because of the amounts of money involved. So, because in each charge the amount of money involved is over a million rand, that’s what gives it such a high mandatory minimum sentence. However as I understand it, and I haven’t looked at the law books in the last couple of days, there are special circumstances that I think give judges a way out of mandatory minimums in this country at the moment, I would have to check that, but that’s my understanding. There might be a little bit of leeway for the judge, but not much. There will have to be exceptional circumstances to allow him to give any kind of sentence less than 15 years for each of the 3 charges, but if they are served concurrently, that’s a 15 year sentence in total, they should take time off for good behaviour, he serves roughly a third, might even depend on the latest correctional services recommendation for changes being brought in by minister Ngconde Balfour and we could find that Schabir Shaikh probably spends at least 5 years in jail if that’s how he’s sentenced.

Presenter : That is Stephen Grootters talking to us there from just outside the Durban High Court. We’ll keep you posted obviously through the day via Eye Witness News and Stephen as to how matters unfold in the ongoing trial of Schabir Shaikh.

But someone who’s been complaining all along that the Arms Deal, or at least part of it was tainted, is Richard Young.

He competed of course against Thomson/Thales/Thint, whatever they are now called. Alain Thetard, the French man who was named by Judge Squires who said he would have been just as guilty had he been standing in the dock yesterday.

Richard Young competed against that French company for the Combat Suites on board the new Corvettes. He competed and lost and has been fighting ever since. He joins us now from Agulhas in the Western Cape. Richard Young, Managing Director of C²I², welcome to you. I’m sure you’ve been following the trial closely Richard. What was your reaction to the verdict?

Richard Young : Good afternoon Chris. Yes, I think the verdict itself is not so significant for me, but the judgment was. What was extraordinary for me, was that there was such a substantial amount of evidence and judgments which relates to my complaints and in fact not only in Count 3, but also in Count 1 and even in Count 2, because in Count 2 the judge actually gave a reason of why the fraudulent write-off was required. So, there’s a lot of material that I can work with. The significant witnesses, Prof. Thembe Sono and Bianca Singh were found to be very credible witnesses and the evidence that they gave is extremely significant not only to the allegations that I originally made, but the causes of action that I have in my damages claim.

Presenter : Richard, just for those folks...

(Interruption : tape turned around)

Richard Young : ... I’m not necessarily pleased that there has been, you know, guilty findings against an individual, that’s not really my interest at the moment.

Presenter : Fair enough, but remind us of the facts of your case as you see them.

Richard Young : Well, originally when the South African Navy was going to be buying a surface combat vessel, either a Frigate or a Corvette, there was going to be a local Combat Suite and in fact a local Combat Suite was both specified and nominated for the Corvette. We weren’t going to be doing the whole Combat System, but we were going to be doing one of the most important parts, which is the Information Management System which in fact defines the whole architecture and through extremely questionable methods, in fact which pretty much now have been found to be criminally irregular, not just unlawful, ADS and Thomson first of all got exclusivity in providing the Combat Suite, but also changed the architecture to exclude our system to the benefit of the Thomson company and the Thomson technology specifically.

Presenter : Okay, now where does this leave your own case? You’re in the process of claiming damages, from whom?

Richard Young : Yes, there are three defendants. One is the Department of Defence, the second is Armscor and the third is ADS. We are three years down the track and in fact in the last three weeks I’ve received pleas from all three defendants and we’ve been analysing these pleas. We have another week or so in which to amend our pleas, but we don’t really think we need to do so at the moment so we can actually apply for a court date, a set down and begin the end of the process which is you know, discovery and then the trial itself which would probably happen in about a year’s time.

Presenter : It’s in that context that the last three days, the judgment delivered by Mr Justice Squires sits and you say it has really strengthened your arm considerably.

Richard Young : Very much so. I think that I could, I’m saying that my case probably has half a dozen independent pillars on which we could win it anyway, but this actually provides another completely independent pillar and I think that if you saw the judgment, specifically the involvement of Chippy Shaikh who involved Schabir who involved the Deputy President or the present Deputy President all in extremely questionable irregular, if not criminal, activities to do something which eventually ended up in excluding us, then that would provide an almost independent pillar on which to win our case anyway.

Presenter : Richard, folk are saying that this proves the entire Arms Deal is corrupt and should be reopened. Any comment on that?

Richard Young : Well, that might be going a little bit far. I certainly say that if there are 6 or 7 essentially separate areas of the Strategic Defence Packages, I wouldn’t necessarily really say that all of them are corrupt, but I think the aircraft deals are extremely, extremely questionable especially the Hawk, a fighter trainer, the Gripen slightly less so, but I mean the reason why we are buying a Gripen when we have new Cheetah Aircraft, fairly new Cheetah Aircraft anyway, that’s very questionable. There’s certain aspects of the helicopter where Chippy Shaikh got involved which is very questionable and there are a lot of aspects of the Industrial Participation which actually swung various of the decisions in particular directions, but I would say at least 50% of it requires as the judge said yesterday, the fine grinding of an investigation and prosecution team like Advocate Billy Downer and Senior Special Investigator, Johan du Plooy.

Presenter : That’s Richard Young, Managing Director of C²I² talking to the Midday Report from Agulhas. Well, it was Schabir Shaikh that was found guilty but the name on everyone’s lips this morning, Jacob Zuma, almost as if the Deputy President himself had been in the dock. Of course, in a sense, he might as well have been. There’s a whole laundry list of people who are currently studying the verdict as they put it, studying the judgment. The government, Zuma’s own people, the ANC, COSATU, the ANC Youth League and of course the National Prosecuting Authority. Is the case against Zuma a very different thing from the case against Shaikh? No, not from a political point of view but from a legal one. For example, certain of the crucial documents admitted in evidence against Shaikh were only there because a number of his companies were also charged. Those documents might not be admissible as evidence against Zuma and that’s the kind of uncertainty that might well have informed the decision not to prosecute Zuma first time around.

We’re on the line now to Cape Town, we’re joined by Senior Lecturer in International Constitutional Law at the University of Cape Town, Kathy Powell. Kathy, a very good afternoon and welcome to you. How do you see the broad picture? Is a case against the Deputy President possible?

Kathy Powell : I think it is possible, I don’t think the distinction between the Deputy President and Schabir Shaikh is quite as strong as you make it although you are emphasising that the only problem is gathering evidence. Now, the immunity of members of Parliament and Cabinet Ministers simply relates to what they say and what they produce in Parliament and for their parliamentary tasks. So, one could still discover other evidence that was not specifically produced for Parliament.

Now, I know that this is in the context of the Arms Deal and perhaps therefore you’re thinking that most of the documents will not be, could not be found. I don’t think that is as much of a problem as it might look like. Firstly, because there’s already evidence obtained from elsewhere and secondly because much of the Arms Deal information has been brought out in other context.

Presenter : Kathy, does the Deputy President enjoy any other kind of immunity other than the type you have just outlined?

Kathy Powell : No, no criminal immunity. In fact the latest act on the powers and provisions of Parliament which dates 2004, so it’s a recent act, expressly makes it an offence to accept a bribe. So no, there is no change in the criminal procedure if it’s against a member of Parliament which Jacob Zuma is and yes, in fact, this particular offence is one of the offences which should interest Parliament.

Presenter : Some of the opposition parties have been talking about impeachment. Is that a possibility within our system?

Kathy Powell : No, the constitution allows for the removal of the President or the entire Cabinet which I suppose is what they meant by impeachment.

Presenter : Through a process of impeachment?

Kathy Powell : Yes, there’s a process set out in the constitution whereby Parliament can declare a lack of confidence in either the President or Cabinet. They couldn’t do it just to Jacob Zuma which is why I think many people are saying the honourable thing would be for Jacob Zuma to resign so as not to tarnish the rest of Cabinet.

Presenter : Is that a lacuna in die system?

Kathy Powell : No, I don’t think so. Remember that this impeachment process is used extremely seldom and what one really relies on in the Westminster System, which is the system that we have incorporated into our constitution, is a tradition whereby members of Cabinet bears the responsibility firstly for their own ministries but also where they will, and this has been the UK tradition, they will resign if they somehow tarnish the reputation of the government.

I don’t think that sort of decision can necessarily be made by Parliament. It’s more a matter of Cabinet’s responsibility.

Presenter : Now because evidence has been led in one trial, the trial obviously against Schabir Shaikh, is there anything that prevents it from being led again in the second trial?

Kathy Powell : No, it can be brought again. It would be freshly adjudicated by the judge of the next trial.

Presenter : Freshly led and freshly cross-examined and all that kind of stuff?

Kathy Powell : Correct.

Presenter : The same basic allegations and supporting evidence could be put to a new sitting of the court?

Kathy Powell : To a new sitting, correct.

Presenter : That’s Kathy Powell, Senior Lecturer in International and Constitutional Law at the University of Cape Town. Kathy, thank you for being with me on the Midday Report.

With acknowledgements to Chris Gibbons and Radio702.