The 15-year sentence for alleged corrupt payments made to former deputy president Jacob Zuma is ”shockingly inappropriate”, the defence argued on Tuesday in the Durban High Court appeal bid of businessman Schabir Shaik.
Neither Shaik nor any of his companies gained anything because of the payments, and no third party was prejudiced, defence advocate Francois van Zyl told the court.
He argued that Shaik made the payments, totalling more than R1,2-million, out of friendship and camaraderie.
”The payments to Zuma started during 1997 in an attempt by [Shaik] to assist Zuma to get out of the debt trap in which he found himself,” Van Zyl told Judge Hillary Squires.
”Later, the assistance was primarily aimed at the education of Zuma’s children. Not a single payment was linked to any specific act by Zuma in the interests of [Shaik] or any of his companies.”
Van Zyl said a long-standing friendship developed between the two men during the anti-apartheid struggle years, which endures to this day.
”The concept of a loan, often between friends, where the borrower is required to pay back when he is in a financial position to do so, is well-known in our law.”
Shaik is seeking leave to appeal against his conviction on two counts of corruption and one of fraud arising from what Judge Squires described as a ”generally corrupt relationship” with Zuma.
He was sentenced to an effective 15 years in jail. On the first corruption charge, involving the payments to Zuma, Van Zyl argued that Squires erred in finding that the politician was influenced by any of Shaik’s payments into furthering his interests.
Shaik’s Nkobi group of companies never succeeded in getting any contract or tender from Zuma’s department when he was an minister in the KwaZulu-Natal provincial government.
It also was not successful in obtaining any work from government sources in any of the instances referred to in the evidence allegedly involving Zuma.
There were various facts supporting the conclusion that the payments were made in the continuation of a ”innocent, non-corrupt relationship”, Van Zyl argued.
The defence further contended it is not an offence to give a benefit for a person to use his political prestige, as opposed to his powers of office, to advance the business interests of the giver.
Shaik was sentenced in June to 15 years in jail on each of two corruption charges and three years for fraud, but Judge Squires ordered the sentences to run concurrently.
Zuma was subsequently relieved of his duties, and is to go on trial on related charges in October.
On count two, the fraud charge, Van Zyl argued that Squires erred in rejecting Shaik’s evidence that he had been unaware of the irregular writing-off of loan accounts on the books of his Nkobi groups of companies. Some of this money went to Zuma.
The court wrongly rejected Shaik’s evidence that he relied on his accountants to produce proper financial statements, and that he had been assured the statements were correct, Van Zyl said.
”We are dealing here with a potential crime. There was no actual crime,” he said.
”The court erred in finding that the offence of fraud was proven beyond reasonable doubt.”
On the second corruption charge — which deals with Shaik’s alleged attempts to secure a bribe of R500 000 a year for Zuma from French arms company Thomson-CSF in return for protection from a probe into South Africa’s multibillion-rand arms deal — Van Zyl said the court erred in allowing as evidence an encrypted fax allegedly detailing a meeting to organise the deal.
It should not have attached any weight to the contents of the fax given the untrustworthiness of its author — Thomson official Alain Thetard.
The court was also wrong in rejecting the alternative argument that Shaik might have acted in his own interests in arranging such a deal, and had possibly done so without Zuma’s knowledge, Van Zyl said.
For this reason, the court has to consider that guilt might not have been Shaik’s only reason for lying on this charge. The mere fact that he may have been untruthful does not mean he committed the offence.
It is reasonably possible that another court, looking at all the facts, could come to a different conclusion, Van Zyl said. Judge Squires should, therefore, grant the application for leave to appeal.
The state’s counter-arguments were to start after the lunch break. — Sapa