The National Prosecuting Authority has defended its decision to separate Schabir Shaik’s trial from that of his co-conspirators, the former deputy president Jacob Zuma and French arms company Thint, saying Zuma could have testified as a witness during Shaik’s trial.
Addressing the Constitutional Court, counsel for the state Wim Trengove raised the possibility that Shaik’s lawyers might not have called Zuma to the stand because his testimony would not support Shaik, or because his pro-Shaik testimony might not have withstood cross-examination.
Shaik was convicted of corruption and fraud in 2005 and sentenced to 15 years’ imprisonment. After losing his appeal, he asked the Constitutional Court in December last year to declare the original proceedings a mistrial, on grounds that he had not been jointly tried with Zuma and Thint.
Deputy Chief Justice Dikgang Moseneke noted during the hearing that Shaik was not challenging the integrity of his conviction. Trengove agreed, saying that the application centred on a technical point ‘made by someone who has come to a dead end on the merits of the caseâ€. He added that the argument before the court was not about allowing an innocent man to go to jail.
Shaik’s counsel, Martin Brassey, argued that it was unfair that Shaik had been tried without his alleged co-conspiratorsÂ. If Zuma had been accused with Shaik, the former’s testimony about their relationship would have influenced the court’s judgement. In the absence of Shaik’s co-conspiratorsÂ, Brassey argued, the court had to rely on documentary evidence, such as the encrypted fax dealing with the alleged agreement to pay Zuma a R500Â 000 annual bribe.
He also suggested that the state had used Shaik’s trial as a ‘dry run†to test his co-conspirators’ evidence before tackling them.
Trengove agreed that joint trials generally led to the ‘truthâ€, but argued that this tended to favour the state, not the accused. Accused persons could not shift the blame as easily onto their co-conspirators in joint trials as in separate hearings.
Trengove emphasised that the critical question was whether the prosecutorial decision not to try Shaik along with Zuma and Thint had resulted in a failure of justice.
Ultimately, he said, the accused was convicted because of the evidence before the court — not the decision to prosecute him.
Trengove acknowledged that a court had the right to decline to hear a trial if it would not be fairly held. But it could not say that prosecutors had to try certain co-conspirators together, because that would violate the autonomy of the prosecuting authority.
He added that Shaik could have argued against being tried alone at the time of his trial. His lawyers had not questioned the explanation given by then national director of public prosecutions Bulelani Ngcuka. In addition, Ngcuka had made it clear that Zuma could still be prosecuted.
Trengove rejected Brassey’s accusations that the lead advocate in the fraud trial, William Downer, was too close to the investigation and was compromised as a prosecutor.
He said supposedly new evidence introduced in the Constitutional Court case was either on the record of previous trials or ‘superfluous and unnecessaryâ€.
The evidence concerns the postponement of Zuma and Thint’s trial.