The judgement of the Supreme Court of Appeal on Durban businessman Schabir Shaik will be final, unless there are found to be constitutional aspects to the case, a law expert said on Wednesday.
”If there is no constitutional issue found to be involved, then the matter ends at the Supreme Court of Appeal,” said Professor Tom Coetzee, lecturer in criminal law at the University of North West.
The Supreme Court of Appeal (SCA) is to give judgement in the matter on Monday in Bloemfontein. The trial of Shaik — and his relationship with former deputy president Jacob Zuma — was much publicised.
The SCA announced on Tuesday that only the court’s order will be read by the president of the court, Judge Craig Howie, and not the judgement itself.
Shaik was convicted in July last year by the Durban High Court of corruption and fraud. Judge Hilary Squires sentenced him to 15 years in prison on each of two corruption counts, and another three years for fraud. The sentences were to run concurrently.
Squires granted Shaik leave to appeal to the SCA against one of two corruption convictions and one of fraud, albeit on limited grounds.
Leave to appeal against his conviction on the first corruption charge, which involved a ”generally corrupt relationship” with Zuma, was refused.
Shaik approached the SCA directly for leave to appeal on this matter (the first corruption charge). The SCA ruled that leave to appeal must first be argued. If the court considers this successful, Shaik could then argue the merits of the appeal itself.
This has happened and judgement was reserved on September 26.
Coetzee said if the SCA dismisses Shaik’s leave-to-appeal application on the first corruption charge, the conviction and sentencing by the high court stands.
”Then he goes to jail, except if there is any form of constitutional issue that played a role in the conviction or the dismissal of leave to appeal. Then he can take it to the Constitutional Court.
”If there is no constitutional issue involved then he has to serve his sentence.”
Coetzee said the SCA could also decide the convictions were correct, but that the trial judge had not used his discretion correctly in sentencing, which could lead to a change in the sentence.
”This is only when they find that the trial judge had not exercised his judicial discretion correctly.
”This is, for example, when a misconception has taken place of the facts in the matter.”
If the appeal on the first corruption charge is allowed, and the SCA finds that the trial court erred on the facts, the conviction and sentence could be set aside.
”Then he walks,” said Coetzee.
On the fraud charge and the corruption charge (the third charge in the indictment) on which Judge Squires had granted Shaik leave to appeal, the same situation can develop.
Coetzee said the matter could go to the Constitutional Court (CC).
”Yes, provided it’s about a constitutional issue, then he can try and get leave to appeal at the Constitutional Court. [But] then the [Constitutional Court] would look purely at whether there was something in the trial that had interfered with the provisions of the Constitution.”
”If there is nothing in terms of his constitutional rights, and it’s all just aspects of criminal law, the law of evidence and law of processes, the road ends at the SCA.”
For the state the road also ends at the SCA if the question is Shaik’s guilt and what his sentence should be.
”They will have to be satisfied with whatever the SCA decides,” Coetzee said. — Sapa