The Scorpions are going all-out in their corruption probe of Deputy President Jacob Zuma, new court documents reveal. However, a crucial piece of the investigative jigsaw – the evidence of Schabir Shaik, Zuma’s long-time comrade and financial adviser – depends on the outcome of a high-stakes legal battle set to begin on Friday June 27.
Shaik is the man at the centre of allegations of influence-peddling involving his company, Nkobi Holdings, Zuma, and the French defence giant Thales.
Shaik is contesting the validity of a summons served on him by the Directorate of Public Prosecutions to answer questions about an alleged attempt by Zuma to secure a bribe from Thales. Shaik was allegedly present at a meeting on March 11 2000 between Zuma and senior Thales executive Alain Thetard at which Zuma supposedly delivered a coded confirmation of a request for a payment of R500 000 a year in return for his protection during investigations of the arms deal – and his continued future support of Thales in South Africa.
Zuma has rejected the allegations and denied that the meeting took place. Now Shaik’s legal team will argue in the Durban High Court on Friday that the state’s demand that Shaik testify in a criminal investigation in which he himself is also a suspect is invalid and unconstitutional. Such a demand, they argue, violates the constitutional right to a fair trial and the right of a person facing charges not to be forced to incriminate himself. Much is riding on the outcome as, on some matters, the state points out, Shaik is the only witness available to the investigation.
However, Shaik’s own affidavit reveals that the Scorpions have pursued virtually every other avenue to investigate the nature of the relationship between Shaik and Zuma and what the state calls ”the reasonable suspicion” that Zuma was party to an agreement ”to give and accept a bribe or bribes”. Shaik reveals that National Director of Public Prosecutions Bulelani Ngcuka travelled to France late last year to interview Thetard and his boss Jean Paul Perrier, to whom Thetard communicated Zuma’s alleged request for payment.
French sources suggest the Thales executives were uncooperative. Shaik also says senior Scorpions investigators questioned two directors of his Nkobi group of companies, Colin Isaacs and Phambili Gama. According to copies of their summonses attached by Shaik to his statement, the two directors were both questioned about their ”knowledge of the involvement of Deputy President Jacob Zuma in the affairs of any of the [Nkobi/Thales] entities” and any ”payments made to or on behalf of Deputy President Zuma”.
Shaik notes: ”Several ex-directors of Nkobi, its ex-employees, my erstwhile attorney, auditors past and present, as well as representatives of African Defence Systems [ADS, a Thales subsidiary of which Nkobi is a shareholder], Thompsons [now Thales] and FBS [a shareholder company in ADS] have also been questioned.” In his affidavit Shaik argues that the state is clearly in possession of sufficient information to make a decision on whether to lay charges. Consequently, he suggests, it is spurious for the state to argue that it needs his testimony in order to decide whether to charge him or others.
The high court challenge is an important test of the constitutionality of Section 28(6) of the National Prosecuting Authority Act, under which Shaik was summonsed. This section permits in-camera questioning even when the answers to such questions would incriminate the person being interviewed. The Act attempts to remedy this incursion into the constitutionally protected ”right to silence” of a suspect, by stipulating that the evidence flowing from such questions may generally not be used in a criminal case against the person being questioned. In his affidavit in support of the summons, the head of the Scorpions, advocate Leonard McCarthy, argues that Shaik is not an accused person in regard to this case and therefore doesn’t enjoy the right to silence.
Up to now Shaik has been charged only with theft of a state document which was found at his home during a raid by the Scorpions in October 2001. However Shaik argues that the state’s attempt to separate that case from the bribery investigation is untenable as the search was conducted in the course of the larger corruption probe and all the evidence suggests he is likely to face additional charges in that regard. McCarthy argues that even if Shaik had a right to remain silent, the removal of that right in the Act is constitutionally acceptable, given the safeguard that the evidence may not be used against him.
However, Shaik counters: ”The process of Section 28(6) has far wider implications and impacts on the right to a fair trial… The questioning will clearly be concerned with my answers to questions posed about the incriminating allegations made. My response will amount to a disclosure of my defence.” Shaik says the answers given will obviously influence the decision to prosecute and this in itself undermines the right against self-incrimination. He points out that even if his answers are not admissible against him, the Act provides no such protection regarding ”derivative evidence” uncovered as a result of following up the information he is forced to disclose.
Shaik throws down a gauntlet the Scorpions are reluctant to accept, disputing the claim that he is the only witness: ”The state can also question the honourable deputy president.”The legal precedents appear to be finely balanced. Although the Constitutional Court has previously refused to protect witnesses who might incriminate themselves, this ruling has been in the context of a more investigative hearing, such as a 417 inquiry. Shaik’s legal team argues that international jurisprudence suggests that where the State enters the interrogation arena on a more adversarial basis – where the questioning is clearly with a view to a possible prosecution of the witness – the courts will uphold the right to silence.
