Pity Schabir Shaik, now staring both jail and penury in the face after a High Court judgement ordered him and his company to be stripped of R34-million.
Shaik has indicated he will appeal against this second devastating judgement of his ”nemesis”, retired Judge Hilary Squires, even if the Supreme Court of Appeal (SCA) confirms his conviction, but the odds are getting worse.
In a closely reasoned judgement confirming the harsh intentions of the Prevention of Organised Crime Act, Squires swept aside the objections of Shaik’s legal team, noting that there was no room for ”maudlin sentiment about adding to an accused’s punishment woes”.
Judges hesitate to punish twice for the same offence, but that is what the Act aims to achieve, by seeking a civil judgement against a convicted person up to the value of the benefit he received from his crime.
Shaik, it was argued, was allocated shares in African Defence Systems by France’s Thomson CSF only after Jacob Zuma’s intervention. Zuma stepped in because he was effectively on retainer to Shaik, who was found guilty of bribing Zuma — so the shares and dividends they generated were the proceeds of crime.
The logic of depriving criminals of their ill-gotten gains is impeccable. But whether the Act survives SCA or Constitutional Court scrutiny is another matter. The wording Squires relied on to tie Zuma’s actions to the crime of corruption may be particularly vulnerable. The law says the benefit need only be ”sufficiently related” to the offence.
The real test of the law may be the consistency with which it is applied. In theory, every case where the convicted person derived a benefit — every petty theft or fraud — could trigger a confiscation order. But there appear to be no guidelines on when the state should seek one.
The Act sets out to deter others. But given the signs that our political and business life is rife with corruption, the lesson drawn from Shaik’s plight is likely to be ”don’t back the wrong horse”, rather than ”don’t do crime”.