Schabir Shaik’s last bid for freedom will be heard in the Constitutional Court on Wednesday and Thursday.
The former financial adviser of African National Congress deputy president Jacob Zuma is asking the court for leave to appeal his conviction on two counts of corruption and one of fraud, his 15-year jail term and the seizure of his assets.
He contends that his constitutional rights to freedom, equality, dignity and a fair trial have been infringed by the trial and appeal courts.
Shaik was convicted on June 2 2005 in the Durban High Court. The Supreme Court of Appeal upheld the conviction and sentence on November 6 2006 and he reported to Westville Prison, in Durban, on November 9.
However, he was quickly transferred to Qalakabusha Prison, where it was said to be easier to monitor his serious medical condition of the past five years.
Shaik was sent back to Westville Prison on Tuesday after spending more than a month in the Inkosi Albert Luthuli Hospital, two months in the infirmary at Qalakabusha Prison and 83 days at St Augustine’s Hospital for hypertension and other blood pressure-related conditions.
Officials have repeatedly denied media claims that he is receiving preferential treatment in prison.
Shaik contends that he and his companies should have been tried with Zuma and wants evidence given in Zuma’s trial to be admitted as new evidence in his case.
He holds that certain search and seizures conducted in his case were unlawful and the evidence obtained, inadmissible.
He further submits that certain of the evidence in his trial amounted to hearsay.
He also draws attention to the media’s influence on the Supreme Court of Appeal through erroneous reports that the court found he had ”a generally corrupt” relationship with Zuma.
Arguing for a lesser sentence, Shaik moves that the trial court infringed his right to dignity by not taking into account the economic disadvantages faced by black people under apartheid.
The state, meanwhile, claims Shaik should have spoken up when the case first went to court or at least when it was before the Supreme Court of Appeal.
It contends that none of Shaik’s contentions are constitutional matters of substance, or issues connected with decisions on constitutional matters.
‘Back where he belongs’
Meanwhile, Correctional Services Minister Ngconde Balfour on Tuesday told MPs Shaik is ”back where he belongs” in prison. This was after Shaik was sent back to Westville Prison on Tuesday after spending more than a month in the Inkosi Albert Luthuli Hospital.
”I have a report here… that’s coming from our doctors in KwaZulu-Natal. I read the report last night [and] I made up my mind … by 6am this morning, Schabir Shaik is back in prison,” he announced to members of Parliament’s correctional services portfolio committee.
Balfour said it would be ”very unethical” to make the report public.
”He’s back in prison. I’ve made sure that he goes, based on this report, not based on anything else. If anyone wants to go out of here and make anything out of that, that’s his or her own problem.
”I’ve just got the offender back to where he belongs. That’s my job. My job is not to be talking about who’s healthy and who’s not healthy. My job is to make sure that the offender goes back to where he belongs.
”So by 6am he was back there, and I’m not going to give any interviews on that … I’ve done what needs to be done.”
Balfour said that in future no prisoner of Shaik’s ”calibre” would be allowed to leave a correctional services centre without newly appointed correctional services national commissioner Vernie Petersen approving the move.
Petersen was present at the committee meeting, the first he has attended in his new position.
”He has to give the go-ahead,” Balfour said, pointing to Petersen who sat at his right hand.
A month ago, Shaik was admitted to Durban’s Nkosi Albert Luthuli Hospital suffering from hypertension and depression.
Shaik’s long stays in hospital since his prison term began have led to accusations he is receiving preferential treatment.
Committee chairperson Dennis Bloem welcomed Balfour’s announcement.
”I think it is the correct decision you have announced this morning … the decision is based on doctors’ reports and not on any other thing.
”He must go back to prison where he belongs. He is there for 15 years, and that’s it.
”Mr Petersen must make sure that this perception of preferential treatment must never be there. If there was preferential treatment, the minister would not have taken this decision,” Bloem said.
Political ping-pong
Balfour was accused on Tuesday of playing political ”ping-pong” with Schabir Shaik.
Schabir’s brother, Mo, said: ”The rights and health of an offender cannot be used as a political ping-pong by political parties in Parliament. It is simply unacceptable that every time the minister has to answer questions, before he stands up in Parliament, Schabir Shaik is moved.”
Mo said he had received a call from a correctional services official at 4am on Tuesday informing him of his brother’s move back to Westville prison ”at the minister’s instructions”.
Mo said he had seen the report that doctors at Inkosi Albert Luthuli Hospital had compiled on his brother’s condition.
”He’s [Balfour] reading the wrong report,” he said.
”The report is of a serious nature. In fact the report I’ve seen says severe, uncontrolled hypertension and target organ damage. Damage to the heart. Peripheral vascular disease. The way I understand it this is serious and the doctors planned to continue their investigations,” he said.
He said the doctors had planned to do a renalgram (a test of the functioning of kidneys) on Shaik.
Mo said he was ”very upset” and described the timing of his brother’s move back to Westville prison as ”despicable”.
”We should get an explanation why this was done. Not since we were arrested [during the apartheid era] has something like this happened to us. It’s just ping-pong.”
”We were led to believe that this was a caring society, even for the incarcerated. I simply do not know.” — Sapa