Schabir Shaik’s last-ditch attempt to escape a 15-year prison term for corruption and fraud began on Wednesday with a bid to convince the Constitutional Court that he was mistried.
Sitting in the front row of the packed gallery behind Schabir’s four counsel were his brothers, Mo and Yunis.
Schabir was not present. He 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 conditions.
Addressing the court first, his counsel, Martin Brassey SC, contended that Shaik’s trial was a ”dry run” for a prosecution of African National Congress deputy president Jacob Zuma.
The reasons for not trying the two men together were ”entirely spurious” and had nothing to do with a lack of evidence, Brassey said.
The court should have required the prosecution to give reasons for separating the cases. Shaik had been put up as ”bait”. ”That is deeply unfair,” Brassey submitted.
”He shouldn’t be used as a dummy or trial run, which is certainly what appeared to have happened here.”
Pressed to explain how Zuma’s absence had prejudiced Shaik, Brassey said that, had Zuma appeared, it would have been as the deputy president of the country entering the witness box to tell the court ”this is how it is between Shaik and me”.
Zuma might have testified that he was a friend of Shaik, who had helped him ”comrade to comrade”, as a compatriot, ”as a father helps a son”.
Brassey submitted that the truth suffered if conspirators were not tried together — with particular regard to the circumstances in this case.
There was potential prejudice to the administration of justice if a co-conspirator was acquitted in a separate trial. ”The outrage that would be produced at this in the public eye would be significant,” Brassey said.
A reading of both the trial court and appeal court judgements showed a striking reliance on inferences weighted against probabilities in ”the absence of people who could testify to the truth”.
Brassey said that Shaik was ”mistried” in that the trial was in breach of ”constitutional guarantees against punishment without due course of law”.
He said the matter had not been raised before the Supreme Court of Appeals because there had not been enough time to properly prepare a case.
Apart from the irregular separation of trials, Brassey contended that there were irregularities in the prosecution of Shaik.
He said there was such a conflation of roles between the prosecution and the investigation that ”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.”
Furthermore, the then-national director of public prosecutions, Bulelani Ngcuka, had fallen into the trap of making a finding on the case when he decided that, while there was a prima facie case against Zuma, it was not winnable.
The state’s function was not to seek to win a prosecution, but to place the evidence before the court fairly and properly, where a prima facie case existed.
In particular, the role of the prosecutor Billy Downer was irregular, Brassey contended.
Although there was no objection to Downer’s appointment as investigator of the case, he should not also have prosecuted and offered himself as a witness in the case.
”He enters the courtroom like the BP man — all blown up with information he should not properly have had.”
This left the case ”flawed at the very core”.
Arguing that evidence from the Zuma case be admitted to the record of Shaik’s trial, the defence said it would be ”hard pressed” to demonstrate that Shaik was the victim of an unfair trial without the new evidence.
This includes affidavits by Ngcuka and the chief investigator, Leonard McCarthy.
On sentencing, Brassey argued that it was unfair to bring an overarching charge of corruption, then to single out one of those incidents and in so doing trigger the minimum sentence with effects ”highly detrimental” to Shaik.
In other evidence, Nirmal Singh SC argued that the seizure of assets should not have applied to gross assets, but to net profit.
The state will bring its case before the court on Thursday. — Sapa