Schabir Shaik is still waiting to hear his fate after Durban High Court Judge Hillary Squires provisionally set aside Wednesday afternoon or Thursday morning for sentencing.
Shaik was found guilty last week of fraud and corruption linked to his relationship with Deputy President Jacob Zuma.
On Tuesday, Shaik’s advocate Francois van Zyl called on the court to show ”mercy and compassion” and to impose a lesser sentence than the prescribed minimum on his client’s conviction — ”a punishment to fit the criminal as well as the crime”.
Prosecutor Billy Downer called for a long-term sentence.
According to Van Zyl: ”There is a huge price that was already paid in the form of pressure and anxiety.”
He said there are substantial and compelling reasons for the court to impose a lesser sentence on all three counts against Shaik.
At one point during Shaik’s trail, which started last October, proceedings had to be adjourned due to Shaik’s high blood pressure.
Van Zyl said Shaik is a first-time offender, is married without children, comes from a humble background and ”sacrificed a part of his life in working in the struggle” against apartheid.
Van Zyl said the case has been hanging over Shaik’s head since October 2001, when the Scorpions first raided his homes and businesses.
Because of his conviction, Shaik — the director of the Nkobi group of companies, some of which were co-accused in this case — will not even be able to manage any of his companies.
”This is not your classic case of bribery,” said Van Zyl, explaining that the crime committed by Shaik started out as a gesture of friendship to help Zuma out of his debt.
”The offence started not as a direct intent to bribe Zuma, but evolved from trying to assist Zuma.”
This distinguishes Shaik’s case from normal corruption.
Van Zyl said there is no evidence that Zuma interfered in any tender processes in which Nkobi was involved, and that ”these circumstances” warrant a lesser sentence than what would otherwise be handed down for corruption.
Fraud and corruption charge
Dealing with the fraud charge relating to an irregular write-off of R1,2-million as development costs in the books of Nkobi, Van Zyl said: ”The write-off occurred below the line and as such had no real influence on profit figures above the line.”
He said it would be ”a grave injustice” to sentence Shaik as if he were party to the fraud because although he was aware of what was happening in the books, the write-off was designed by the accountants.
On count three of corruption relating to soliciting a bribe for Zuma from French arms company Thomson CSF, Van Zyl said neither Shaik nor his companies agreed or offered to pay Zuma bribe money. He said Shaik was only a facilitator.
Although Zuma wrote a letter to the standing committee on public accounts to voice his disapproval over its intention of investigating the arms deal, it was not part of the bribe ”agreement” — he was merely reiterating what other ministers had already stated in a press conference.
Van Zyl said society undoubtedly has an interest in the punishment of corruption. This interest should not weigh so heavily that it interferes and overshadows all other circumstances that the court will have to bear in mind.
‘No reason to deviate’
In argument in aggravation of sentence, Downer said there is no ”substantial compelling reason” to deviate from the minimum sentences. He said 15 years is a just and lenient sentence, especially in respect of the two corruption charges.
Shaik showed no remorse for his actions. A large amount of the R1,2-million to Zuma was paid over seven years as he tried to corrupt the deputy president. Downer maintained that Shaik intended to bribe Zuma in his capacity as provincial minister and later as deputy president.
While Van Zyl said that Shaik’s is not a typical case of bribery, Downer said it has features that ”aggravate the classic case” and it is ”more serious”.
”This is atypical; it’s much, much worse,” he said.
On the case of bribery, Downer said: ”It remains offensive in the true sense of the word to pay an official to do his work.”
Shaik had also persisted in trying to get the money from the French when it was not forthcoming. In referring to Shaik’s group of companies, he said the corporate accused also have to be punished because they are assets.
Although the corporate accused cannot be put in prison, it is necessary to look at the amounts involved in the offence as a starting point, Downer said.
‘Judge Squires is not God’
Meanwhile, the African National Congress Youth League (ANCYL) defended its attack on Judge Squires, saying on Tuesday he is not ”holier than thou”.
ANCYL spokesperson Zizi Kodwa said: ”We restate our position that Judge Hillary Squires is not God; our criticism of the judgement he articulated would have received the same intensity of our criticism even if the judge were black.”
Kodwa said the ANCYL’s position on the judge was informed by the ambiguous modalities he used to refute or accept certain truths and facts during the trial, which in the league’s opinion amounted to a serious contradiction within his own judgement.
”Judge Hillary Squires started by asserting that the deputy president was not on trial, indeed truly so, but then in his conclusion condemned the deputy president as though indeed he were on trial.
”And as such, we have the view that such judiciary tendencies must be rejected with the contempt that they deserve.
”In our political work, we shall never show any favours nor be guided by any fear, since these constitutional principles on the right to freely express one’s opinion over any issue does not exclusively applies to Judge Squires and his ilk, but to all South Africans,” Kodwa said.
The ANCYL has said Judge Squires was an old apartheid Rhodesian minister. It is convinced that the interests he served as a minister have not changed in as far as his attitude concerns Africa, for there is no record of such a change of heart or political views.
Racial criticism ‘not warranted’
The South African Human Right Commission (SAHRC) said on Monday that race-based criticism of Judge Squires is not warranted.
”There are differing responses to the judgement and while some regard it as painstakingly thorough and a correct conclusion based on the evidence before the court, others will take issue with it for other reasons. This is the essence of living in a constitutional democracy, which has room for vibrant and robust discussion,” the SAHRC said.
”However, it must be a cause for concern when the judge comes under attack purely on account of his race or origins and the judgement is rejected purely on account of this.
”Our judiciary is undergoing a process of transformation and few will argue that the current demography of our Bench adequately represents who we are as a nation — there is consensus that much work still needs to be done on that front.
”However, it is simply unacceptable when race is used, in the manner in which it has been in this instance, to cast doubt on the work of the court,” it warned.
”In the present case, the criticism that is directed towards Mr Justice Squires purely on account of his race is unfortunate and certainly mars what has been a transparent and very public criminal trial.
”We add our voice to the various calls that the debate in the aftermath of this trial should be conducted soberly and responsibly,” the commission said in a statement issued in the name of its chairperson, Jody Kollapen. — Sapa