The Constitutional Court on Thursday reserved judgement in the appeal by Schabir Shaik against his fraud and corruption conviction, his 15-year jail term and the seizure of his assets.
While Shaik’s counsel, Martin Brassey SC, has argued for a mistrial, counsel for the state maintains he should have spoken up a lot sooner if he was unhappy.
Presenting the state’s case on Thursday Wim Trengove SC described Shaik’s application as a cynical attempt by someone who had finally reached a ”dead end” in the case.
Shaik’s complaint about being charged in the absence of African National Congress deputy president Jacob Zuma would have been best brought at the start of the trial.
Similarly, that was when he should have raised with the trial court any queries about the prosecutor’s role in the investigation.
”They have known about these things all along — right from the beginning — and have failed to raise them,” Trengove charged.
In any event, he contended, there was no requirement for the prosecution to charge Zuma together with Shaik, even if it was alleged they were conspirators in a reciprocal relationship.
What would have been improper was to use the Shaik trial as a ”dry run” to obtain information against Zuma and ascertain the possibility of success in a prosecution against him.
As it happened, this had not been the case, he submitted. ”It’s just not true,” he replied to a contention by Brassey that Shaik had been used as ”bait”.
The then-national director of public prosecutions Bulelani Ngcuka had found, in ”good faith”, that while there was a prima facie case against Zuma, the prospects of success were not strong enough to pursue it — in other words, it was not known if the case was winnable.
Ngcuka had indicated that the matter would be further investigated and that the decision could change should more information come to light.
The prosecution had been confident about its case against Shaik, Trengove submitted, adding that there was nothing improper with trying a strong case first, before deciding whether to proceed with a weaker case.
”Ultimately, an accused is convicted not because of the decision of the prosecution, but on the basis of the evidence before the court,” he submitted.
He added that it was not the duty of the prosecution to structure a case in a way that was most beneficial to the accused.
‘Madness’
Responding to the charge that trial prosecutor Billy Downer’s involvement in the investigation gave him access to information he should not have had — to the extent that he was proffered as a witness — Trengove defended his actions as ”absolutely above reproach”.
It would be ”madness” to suggest that a prosecutor involved in a case for years be removed from it when it went to court, he submitted.
Legislation governing the Directorate of Special Operations — more commonly known as the Scorpions — made allowance for the involvement of prosecutors.
All that was required of the prosecutor was not to show fear, favour or prejudice. There was no criticism that could be levelled at Downer’s conduct, he told the court.
Trengove further contended that ”new evidence” brought by Brassey was ”not new at all”.
He accused Shaik’s camp of scouring for any scrap of evidence it could find ”from all over the place” to support the Constitutional Court action.
He submitted that Brassey had known the substance of the information from the start and would have been provided with it should they have requested further particulars.
He dismissed as a ”flight of fantasy” Brassey’s picture of how differently the case might have been had Zuma testified.
Trengove submitted that it was instead on the advice of his counsel that Shaik did not call Zuma and that the inference from this was either that his evidence would not support Shaik’s version or that his version in support of Shaik would not have stood up to scrutiny.
As far as sentencing was concerned, Trengove held that Shaik was charged with unlawfully and corruptly giving Zuma benefits not legally due to him — in the form of 238 payments — between October 1995 and September 2002.
While it was true that some of the payments predated the minimum-sentencing legislation, most post-dated the legislation, Trengove argued.
Those that did exceeded the minimum threshold of R500 000 for the legislation to come into force.
On the seizure of Shaik’s assets, Trengove told the court Shaik would never have had the benefit of the shares and assets involved were it not for the intervention of Zuma.
He had used his corrupt relationship with Zuma as a selling point. ”He sold himself to other business people on the strength of his political connectivity to Zuma”. — Sapa