The law treats guilt like pregnancy — in court you can’t be half guilty. But life is more complicated, making for a poor fit when the messy compromises of existence are dragged under legal scrutiny.
When the Sunday Times previewed corruption-accused Schabir Shaik’s entry to the witness box, the paper speculated on which Shaik would emerge.
Would it be ”the altruistic activist turned businessman who went out on a limb to keep [Deputy President Jacob] Zuma afloat with no intention of securing a big payday for himself”, as described in his plea explanation? Or would it be ”the bullying, foul-mouthed, name-dropping braggart”, described by state witnesses?
The possibility is that Shaik is both — he himself suggested this under cross-examination this week. Explaining why he had lied about his academic qualifications, but should be believed on the innocence of his relationship with Zuma, Shaik noted wryly: ”M’Lord, there is some good in me and there is some bad in me.”
Such complexity is no help in court, where the prosecution generally seeks to exploit any dubious behaviour as germane character flaws. Nevertheless, some of Shaik’s astuteness, even charm, emerged this week. Perversely, he appeared to respond better to cross-examination than to being led by his own advocate. It was as if he needed the contest to focus.
Given the sheer weight of the evidence against him, Shaik has stood up relatively well — so far — though he has been forced to contradict a string of state witnesses.
Admitting that in 1999 he deliberately hid from former president Nelson Mandela the fact that Zuma owed him (Shaik) money, Shaik gave an explanation that was both amusing and not seriously challenged. He said Mandela had offered to settle Zuma’s debts and that he had not wanted to hurt Zuma’s chances of getting help.
Producing a passable Madiba impersonation Shaik said: ”So I didn’t attend that meeting with Mr Mandela and I didn’t put the name of Shaik there, because Mr Mandela would say, ‘There’s Shaik back again in this whole scenario’.”
But he added: ”I have had meetings with Mr Mandela subsequently and all he says is, ‘You are a very naughty boy’. But I mean, the relationship is still fine.”
If Mandela regards Shaik’s alleged sins as misdemeanors, what will the court make of them?
There is ample evidence that Shaik traded on Zuma’s name, but Shaik’s explanation appears to boil down to the claim that this merely gave him a foot in the empowerment door. Had Zuma been just a friend, rather than a de facto dependant, would Shaik have operated differently?
The state does not have to prove that Zuma offered a quid pro quo, merely that Shaik’s payments to him were intended to corrupt. But the prosecution has tried to show that Zuma in fact delivered on his end of the alleged bargain.
Given that the state had virtually unrestricted access to Shaik’s records, the pickings are relatively thin.
Zuma’s two most significant interventions were in relation to internal African National Congress feuds: Shaik’s exclusion from the Point Waterfront Development and his company’s initial exclusion from the arms deal.
In both cases there are suggestions that Shaik was embroiled in a fight among ANC cronies for lucrative tender deals. Competing empowerment interests were nominated by ANC mandarins other than Zuma, which Shaik wanted overturned.
It’s another complication whose resolution may elude the court process.