The state is expected to argue in the Constitutional Court on Thursday why Schabir Shaik should not get leave to appeal against his conviction for corruption and fraud, his 15-year prison term and the seizure of his assets.
Shaik was convicted in June 2005 on two counts of corruption and one of fraud. His appeal to the Supreme Court of Appeal in November 2006 was unsuccessful.
In its heads of argument, the state argues that Shaik should have spoken up when the case first went to court, or at least when it was before the Supreme Court of Appeal, if he was unhappy about the way the trial was being conducted.
It submits that none of Shaik’s contentions are constitutional matters of substance, or issues connected with decisions on constitutional matters.
In oral argument on Wednesday, Shaik’s counsel told the court his client had been mistried.
Shaik’s counsel argued that it had been unfair to try Shaik separately from African National Congress deputy president Jacob Zuma. The corruption related to Shaik’s connection with Zuma.
It held that there were irregularities in the prosecution, which had confused its role with that of the investigators.
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 conditions.
‘Dry run’
On Wednesday, Shaik’s counsel, Martin Brassey SC, contended that Shaik’s trial was a ”dry run” for a prosecution of 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”. – Sapa