Billy Downer’s conduct in prosecuting Schabir Shaik was ”absolutely above reproach”, the Constitutional Court was told on Thursday.
Counsel for the state, Wim Trengove SC, told the court it was ”madness” to suggest that a prosecutor steeped in a case be removed when it goes to trial.
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.
Even if there was, Shaik had been aware of it all along and should have raised it at the start of the trial and not waited to bring it to the Constitutional Court.
Trengove described Shaik’s Constitutional Court action as a cynical attempt by someone who had finally reached a ”dead end” in the case.
He accused Shaik’s counsel of scouring for any scrap of evidence they could find ”from all over the place” to support the action.
However, he submitted, the ”new evidence” they brought was ”not new at all”.
He contended that Shaik’s counsel had known the substance of that information from the very start.
Denying that the prosecution of Shaik had been a dry run for the prosecution of his alleged co-conspirator, African National Congress deputy president Jacob Zuma, Trengove submitted that this would have been ”improper”.
However, he contended there was nothing wrong with — as in this case — trying a strong case first, before deciding whether or not to proceed with a weaker case. This type of action was ”entirely proper”.
”Ultimately, an accused is convicted not because of the decision of the prosecution, but on the basis of the evidence before the court,” Trengove said.
He submitted that the decision not to prosecute Zuma was fully and properly explained by the then-national director of public prosecutions, Bulelani Ngcuka, who found ”in good faith” that while there was a prima facie case against Zuma, the prospects o success were not strong enough to pursue it — in other words, it was not known if the case was winnable.
Trengove contended that Ngcuka had not closed the door on a possible prosecution, but had indicated that the matter would be further investigated and that the decision could change should more information come to light.
Shaik is applying to the Constitutional Court for leave to appeal against his conviction on two counts of corruption and one of fraud, his 15-year prison sentence and the seizure of his assets.
Shaik 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.
Telling the court that Shaik’s counsel had not complained about the failure to charge Zuma and Thint, but about the prosecution of Shaik in the absence of Zuma and Thint, Trengove submitted that it was not the duty of the prosecution to structure a case in a way that was most beneficial to the accused.
He dismissed as a ”flight of fantasy” Shaik’s counsel’s picture of how differently the case might have been had Zuma testified.
There was no basis to suggest that this might have been the case.
Trengove submitted that it was 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.
Trengove further submitted that it was generally in an accused’s favour to be tried separately from his co-accused.
As far as sentencing was concerned, Trengove held that one of the charges against Shaik was that between October 1995 and September 2002 he unlawfully and corruptly gave benefits, in the form of 238 payments, not legally due to Zuma.
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. — Sapa