Seven weeks on and the Schabir Shaik trial is shaping up to be a titanic and tantalising legal battle — as is the public relations war being fought in the media.
Shaik is facing three main charges relating to corruption and fraud.
Corruption relating to payments made by Shaik and his Nkobi group to and on behalf of Jacob Zuma, totalling more than R1-million.
A thorough state investigation has meant few of the essential payments are contested. The bulk of the 242 payments have been admitted by Shaik. The defence strategy rests on two main pillars:
They flowed from Shaik’s deep personal relationship with Zuma, forged in the struggle, with no favours expected by Zuma in return.
Shaik has claimed that rental payments for Zuma’s Durban flat were a contribution to the ANC, flowing from a need to find a secure lodging for Zuma following an alleged assassination threat received in early 1997. He has provided no evidence of the threat nor explained why the governement did not provide a secure residence.
In another set of payments allegedly meant for the ANC, Durban businessman Dawood Mangerah, who was party branch chairperson in Stanger, has maintained that only a small portion was spent on ANC work and that most of the money was for Zuma’s personal benefit.
However, the claim, if accepted, that some payments were actually on behalf of the ANC undermines the prosecution argument that such payments were intended to influence Zuma personally.
It also reduces the R1,2-million (excluding interest) for which Zuma is personally liable, making more plausible the claim that these were interest-bearing loans that Zuma could realistically be expected to repay.
Shaik’s relationship with the ANC appears close and complex, with his history of acting as a front for payments on behalf of the ANC, not only in the days of the pre-1994 underground but also during the democratic era.
Against this is the absence of any consistent distinction in the Nkobi company accounts between payments made on behalf of Zuma in his personal capacity and those made as an ANC donation.
The defence has presented a ”revolving loan agreement” allegedly signed between Zuma and Shaik in May 1999, making provision for a maximum liability of R2-million. But accounts seized from Nkobi show no evidence of an attempt to keep track of interest accumulated; nor is there evidence of significant repayments by Zuma.
Key to judging whether the payments were intended to corrupt Zuma will be the assessment of witnesses for the prosecution — and the defence.
A number of state witnesses claim Shaik highlighted his ”political connectivity”, primarily with Zuma.
Evidence from former Nkobi accountant Celia Bester and KPMG forensic auditor Johan van der Walt that Nkobi continued to fund Zuma while the company itself was cash-strapped will have to be weighed against Shaik’s claim of a commitment to Zuma motivated by close friendship.
Count 2
Fraud, relating to the writing off of payments made by Nkobi as part of the ”development costs of Prodiba” — the company that won the driver’s licence contract and in which Nkobi holds a one-third share.
This is the least serious and most technical of the charges. The fraud is alleged to be in two parts: firstly in the artificial creation of an asset in the Nkobi accounts that didn’t really exist, and secondly, in that the amounts written off against this asset had nothing to do with development costs for Prodiba.
Instead they were payments on behalf of the ANC, payments to Zuma, payments to former transport minister Mac Maharaj’s wife’s company, and payments to Shaik himself. Shaik maintains his auditors, David Strachan & Taylor, advised him there was no problem with all of this, but that in 2002 they reversed this view. The auditors say they initially acted on information provided by Shaik.
Count 3
Corruption relating to an alleged bribe solicited on behalf of Zuma from the French defence company Thomsons.
This is probably the hardest charge for the state to prove, given the lack of cooperation from the French.
It is also emerging as the toughest for the defence to shake off, because of the quality of the documentary evidence. A hand-written note by Thomson’s then Southern African chief, Alain Thetard, in which he refers to a discussion with Shaik of a request for ”R500k” in return for Zuma’s protection during the arms deal investigation and for Zuma’s support for future projects, is a cornerstone of the state’s case.
But the prosecution has struggled to suggest ways in which this was allegedly paid, finally latching on to multiple payments of R250 000 due to be made by Thomson in terms of a hurriedly arranged consultancy agreement with Shaik.
Shaik has provided explanations for all of this, including the suggestion that the payments were a donation, not a bribe. Thetard’s note will be crucial but much will turn on whether the note is ruled inadmissible, as argued by the defence.
Overall, it’s still early days. There are bound to be surprises: for instance, will the defence — or the judge for that matter — decide to call the deputy president? It’s not over by a long way.