“As all rivers must reach the sea, we have reached the sea,” Judge Hillary Squires noted as state and defence counsel closed their arguments at the end of the marathon Schabir Shaik corruption trial.
But it’s not quite over: the case must still traverse the flats of an acquittal or the roaring rapids of a conviction. No date for judgement has been set.
To take the analogy further, the defence was at pains to portray the Âevidence against Shaik as islands of fact amid a river of doubt, while the state argued that the many tributaries of circumstantial evidence had merged into an irresistible flood.
The outcome will hinge on whether the judge regards the incidents set out by the state as discrete — as urged by the defence, which attacked each in turn — or accepts them as establishing a pattern of a generally corrupt relationship between Shaik and Deputy President Jacob Zuma.
Much evidence on the first corruption charge, relating to payments by Shaik for Zuma’s benefit of more than R1-million, is common cause.
The key question is the intention of Shaik in making the payments. Was it an act of generosity to support a comrade? Shaik’s advocate, Francois van Zyl, argued Shaik and Zuma had forged a bond during the struggle. “Zuma gave the best years of his life to the struggle and returned from exile as a man in his fifties with no assets… and nine children to educate and maintain.
“Towards the end of 1996, Zuma confided in [Shaik] that he had financial difficulties … that he was considering leaving politics to earn a higher income … Shaik convinced Zuma not to leave politics. He regarded Zuma’s continued participation in politics in ÂKwaZulu-Natal as important for peace and stability in the region. Zuma was of course also a close friend.
“Against this background, he decided to assist Zuma financially.”
Opposing this benign portrait, the state cited evidence that Shaik relied on maintaining his “political connectivity” as a means of promoting his business — and that using Zuma’s name and influence was vital to this.
State advocate Billy Downer told the court Shaik’s financial assistance ensured Zuma’s continued involvement in politics: “At least part of the reason why Shaik decided to provide financial support was so that he could continue to rely on his political connections with Zuma and to call on his assistance where necessary.”
Downer argued that if the payments were not intended to influence Zuma, he and Shaik would have done their utmost to exclude Zuma from involvement with Shaik’s affairs. The prosecution produced numerous examples to show the contrary.
Van Zyl attacked each of these, arguing that there was nothing to suggest that Zuma gave Shaik permission to use his name.
He asked the court to reject the affidavit of Malaysian businessman David Wilson, who stated that Zuma urged him to include Shaik as a partner in the Point Waterfront Development. Wilson had refused to testify and his evidence should be given no weight, Van Zyl said.
He also argued for an innocent interpretation of Zuma’s key intervention to support Shaik’s business: when he persuaded French arms company Thomson CSF to reverse its exclusion of Shaik’s company from the arms deal.
“Thomson acted to exclude its South African partner, Nkobi,” Van Zyl explained: “The reason was that a rumour had come to its notice to the effect that Shaik and his group were not regarded as acceptable BEE [black economic empowerment] partners by the ANC leadership.
“As a result Shaik appealed to Zuma to set the record straight … This Zuma was prepared to do.” Van Zyl argued Zuma would have acted in this way for any BEE company.
Count three, the corruption charge relating to Shaik’s alleged solicitation of a bribe from Thomson CSF on Zuma’s behalf, is the defence’s toughest challenge. This is because of the notorious encrypted fax drafted by Thomson’s South African executive Alain Thetard.
The defence did not deny that Thetard’s fax, purportedly a record of a meeting with Shaik and Zuma, spoke of a proposal to bribe Zuma. It argued that the document was unreliable, because Thetard was unreliable.
Shaik concedes the meeting took place, but claims the discussion concerned an innocent donation to the Jacob Zuma Education Trust.
Downer told the court that the extent of evidence supporting the interpretation that Thetard’s fax accurately reflected the meeting was overwhelming. The defence had produced no credible evidence to back the donation story, and Zuma was not called to corroborate Shaik’s version.
An indication of how seriously the defence regard the count three was provided by an alternative argument offered by Van Zyl in the event that the court rejected the “donation” explanation.
He argued that there was insufficient evidence that Zuma knew he was being offered a bribe because Zuma’s alleged confirmation of the bribe request was made in an “encoded declaration”. Given that Shaik was in a position to manipulate the code, Van Zyl argued the court should find he could have cooked up the scheme to defraud Thomson CSF, using Zuma as a dupe. He could then not be convicted of corruption.
Downer told Squires that putting up a new and untested version at this late stage was “repugnant and self-serving” and should be rejected.
Judge Squires did not appear to take this gambit particularly seriously. But Shaik’s alternative explanation appeared less designed to sway the judge than to exculpate Zuma in the face of a possible conviction — and dam the torrent of suspicion that might engulf the deputy president.