Schabir Shaik was mistried, his legal team told the Constitutional Court on Wednesday.
”The conviction and sentence were the culmination of a trial that, being unfair, was in breach of constitutional guarantees against punishment without due course of law,” the court was told.
Shaik is applying for leave to appeal his conviction on two counts of corruption and one of fraud, his 15-year prison sentence and the seizure of his assets.
Counsel Martin Brassey submitted that Shaik’s trial was unfair because he was prosecuted in the absence of African National Congress deputy president Jacob Zuma and the Thint group of companies, and because of irregularities in the conduct of the prosecution.
He contended there was such a conflation of roles between the prosecution and the investigation that it produced a situation in which ”the prosecution had an upper hand in relation to the accused”.
”The parity of arms between the prosecution and the accused was absent. In consequence, there was the capacity in the prosecution to become embroiled in the investigation; to lose its sense of distance and space and lose perspective on its prosecutorial role,” Brassey said.
It was submitted that the trial judge should have asked why Zuma and Thint were not charged with Shaik, given they were ”embroiled and engaged in a relationship in which they were inextricably bound up”.
Brassey said the defence contended that, at the time of the trial, it did not have insight into the results of the failure to join the trials, and did not have the capacity to fully appreciate the extent of prosecutorial irregularities.
Arguing that evidence from Zuma’s trial be admitted to the record of Shaik’s trial, Shaik’s camp told the court it would find itself ”hard-pressed” to demonstrate that Shaik was victim of an unfair trial without the new evidence.
‘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, 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.
”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,” Balfour 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.
Political ping-pong
However, Balfour was on Tuesday accused 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. — Sapa