Bench+reserves+judgment+in+Shaik+appeal,+Jeremy+Gordin,+Sindy

Sunday Independent, Johannesburg, October 01, 2006 //Edition 1//
=Bench reserves judgment in Shaik appeal=


 * //Legal team may try to take case to constitutional court, while admissibility of encrypted fax remains a matter of contention//**


 * Jeremy Gordin**

This week a full bench of the supreme court of appeal (SCA) reserved judgment in the appeal against conviction and sentence, on two charges of corruption and one of fraud, by Durban businessman Schabir Shaik and 11 of his companies.

The two-and-a-half days of hearings (though the matters were set down for five) devoted to both Shaik's criminal and civil appeals were eerily low key - given that Shaik's conviction on June 2 last year resulted in the firing of Jacob Zuma from the deputy presidency on June 14 and his being charged with corruption and fraud on June 20.

But at least eight significant points seemed to have emerged from the proceedings this week. Most of these depend on the obviously dicey exercise of accurately forecasting what the five SCA judges are going to find when they deliver judgment in the next few weeks.

But proceedings in the SCA are different to those in lower courts because all the "interaction" is between judges and (usually senior) advocates - and in general, therefore, SCA judges openly discuss their difficulties, concerns and thinking.

From the discussions initiated and points made by, and the reactions of, the judges:

> It is unlikely, however, that Shaik could challenge his conviction on count two (fraud) in the constitutional court - and Shaik was refused permission by both the high court and the SCA to appeal against his sentence (three years) on count two. > In other words, if Shaik's conviction on count two is upheld, he will have to go to jail immediately. > For, if Shaik's appeal against count three is upheld, it means that the spectre of corruption related to the arms deal would most likely fall away from any future charges that may be brought against the former deputy president.
 * It looks as though Shaik's conviction on count one of the charges levelled against him is going to be upheld. This count related to various occurrences that trial judge Hilary Squires found to have proved the existence of a "generally corrupt relationship" between Shaik and Zuma.
 * It seems that Shaik's conviction for fraud (count two), related to the writing off of payments to Zuma so as to hide them, will also be upheld.
 * It appears that count three - a charge of corruption, related to soliciting a R500 000 bribe from French arms manufacturer Thint for Zuma - will not be upheld because at least three of the judges were clearly unhappy about the "admissibility" of the notorious encrypted fax on which the charge was mainly based.
 * The judges, with one possible exception, did not seem to think that Shaik had received disproportionate sentences (15 years' jail in total) from Squires on June 8 last year.
 * It is possible that Shaik may opt to challenge his conviction on count one in the constitutional court, because the finding of a "generally corrupt relationship", and the way in which the relationship was proved, has constitutional implications.
 * It is "good" for Zuma that at least three of the judges were unhappy about Squires' "admissibility" of the encrypted fax.
 * As for Thint, if the encrypted fax is ruled inadmissible, the South African arm of the French company would seem to be off the hook.
 * Senior members of the prosecution team made it palpably clear - but not as part of the appeal proceedings - that the National Prosecuting Authority remains intent on re-charging Zuma as a result of his "generally corrupt" relationship with Shaik.

The lack of drama surrounding the two appeals was probably due to Shaik and his brothers deciding not to attend.

It was left to Reeves Parsee, Shaik's attorney, and Jeremy Gauntlett, SC, and Francois van Zyl, SC, Shaik's counsel, representing the appellants, to face a bench consisting of Craig Howie, the SCA president; Lex Mpati, the vice-president; and judges Jonathan Heher, Mohamed Navsa and Piet Streicher.

On the respondents' (state) side, were advocates Billy Downer, SC, Anton Steynberg, Wim Trengove, SC, and Alfred Cockrell.

Gauntlett opened his argument on Monday by noting that, given Judge Herbert Msimang's criticism of the state's handling of the case against Zuma in the Pietermaritzburg high court on September 20, when Msimang struck the case against Zuma off the roll, Shaik felt his fair-trial rights may have been infringed - a strategy clearly aimed at making it possible for Shaik to go the constitutional court later.

Gauntlett also argued - relative to count one, the "generally corrupt relationship" between Shaik and Zuma - that the relationship between the men had been "special", not corrupt, and that Shaik had paid Zuma out of concern for his wellbeing, not out of cold-blooded opportunism.

Both Streicher and Navsa took Gauntlett to task on these arguments, saying that it seemed clear that Shaik had made payments to Zuma so as to use his "in-house celebrity" (Zuma) to secure business successes.

Van Zyl argued on count two, saying that Shaik had been wrongly convicted of using his companies to commit fraud. Van Zyl maintained that Shaik had been unaware that his accountants had written off R1,2 million from his companies' books.

"You're suggesting that the accountants just sucked it out of their thumbs … that these were development costs?" asked Streicher.

On count three, related mainly to the encrypted fax, Gauntlett argued that the state's failure to call either Zuma or Alain Thetard, the author of the fax, had compromised Shaik's right to a fair trial.

The fax allegedly detailed how Thetard, Zuma and Shaik had met and conspired to pay Zuma a bribe.

Downer said he had been precluded from calling Zuma to testify about the fax because Bulelani Ngcuka, his former boss and the erstwhile national director of public prosecutions, had decided in 2003 not to prosecute Zuma alongside Shaik and because Thetard had fled and the French authorities could not extradite him.

Streicher said that a ruling in favour of the admissibility of the fax was sure to have "consequences" for Zuma, Thint and the SCA itself (which is due to hear the August 2005 search and seizure appeals in due course) - and was therefore a serious matter indeed.


 * From: http://www.sundayindependent.co.za/index.php?fArticleId=3465743**

1065 words