/ 26 September 2006

State asks judges to deny leave to appeal

State prosecutor Billy Downer on Tuesday asked the Supreme Court of Appeal to refuse Shabir Shaik’s application for leave to appeal a conviction which entails his ”generally corrupt” relationship with former deputy president Jacob Zuma.

Shaik was sentenced by Judge Hilary Squires in June 2005 to 15 years’ imprisonment on two corruption counts, with an additional three years for fraud. The sentences were to run concurrently.

If Shaik wins the appeal on the second and third counts, and leave to appeal the first is denied, he will still spend time in prison.

”Look at the evidence, the level of corruption, the duration and intent of the corruption,” said Downer, adding that in large-scale, high-level corruption, long-term sentences should be imposed irrespective of minimum sentencing guidelines.

In appealing the sentences, the defence charged that Shaik’s relationship with Zuma had not been ”cold-blooded”.

On Tuesday, the second day of Shaik’s appeal hearing, Downer faced an array of questions from a full bench of the SCA judges on the admissibility of an encrypted fax.

Some of the best legal minds in the country argued, questioned and probed the various arguments put forth by both the defence and the state.

During argument, Judge Craig Howie often held his head in his hands, while Judge John Heher gazed up at the ceiling. From time to time the judges interrupted Downer to ask him a question.

The encrypted fax apparently details the negotiation of a R500 000-a-year bribe for Jacob Zuma — while he was deputy president — for protection in the investigation into South Africa’s multibillion-rand arms deal.

”It’s a very, very probative piece of evidence which should be allowed in,” Downer said.

The state said that even if Alain Thetard, the author of the fax, was not a credible witness, the facts contained in the fax still stood. The defence contended that Thetard was not a credible witness because he had lied on various occasions and for this reason the fax should not be allowed as evidence.

The state conceded, as it had in the trial, that a court would find him a non-credible witness.

”We still sit with the facts. If you look at the statement itself [the fax] what possible motive could Thetard have had in composing a fax that was not true? There is none,” Downer asked.

Downer said all the facts contained in the fax had been confirmed by the evidence.

Delving deep into the legal technicalities of intent and purpose of all the conspirators involved in the alleged bribe, and alternative arguments to the one presented by the state, took up most of the day.

To Downer, it was obvious that their submission showed evidence that formed a clear mosaic of facts.

Jeremy Gauntlett, SC, reiterated his argument that the fax had very little probative value because of Thetard’s ”extremely unreliable character” with an ”aversion to truth telling”.

Judge Heher then stated: ”But it is beyond any doubt whatsoever that an amount of R500 000 per annum was offered and accepted for a purpose.”

Gauntlett was trying to convince the judges to look at the document as ”a flat piece of paper” however Heher said its content even as a flat piece of paper had ”a particular thrust”.

The appeal continues. – Sapa