Schabir Shaik, the convicted former financial adviser to ANC president Jacob Zuma, will tell the Constitutional Court that there is no direct connection between his corrupt relationship with Zuma and tens of millions of rands’ worth of his assets.
Next week Shaik and his companies will attempt to convince the court to reverse an earlier judgement by the Supreme Court of Appeal (SCA).
Originally the Asset Forfeiture Unit had sought four confiscation orders against Shaik under the Prevention of Organised Crime Act (Poca), which allows for the seizure of proceeds from criminal activities.
As part of Shaik’s criminal trial judgement, Judge Hilary Squires dismissed one of the orders but agreed to issue orders for the other three, which totalled R34,3-million. On appeal, the SCA agreed with Squires on all but one of the three orders, which involved a sale of shares in Thint SA worth half a million rand.
Shaik and his co-defendants then approached the Constitutional Court for permission to appeal against both the criminal conviction and the confiscation orders. The court dismissed the appeal on the criminal conviction, but said the confiscation orders raised constitutional issues and granted Shaik and the others leave to appeal.
Shaik’s defence team is expected to argue in part that there is no ‘causal†link between the money Shaik earned and the corruption charges of which he was convicted.
Among the charges against Shaik in his original trial was that he had used his relationship with Zuma to curry favour with the company African Defence Systems (ADS). According to documents submitted to the Constitutional Court, Shaik’s counsel, senior advocate Nirmal Singh, will argue that Shaik already had a business relationship with ADS and therefore did not need to exploit his links with Zuma to benefit from the arms deal. ADS was awarded the R1,3-billion tender to arm the navy’s four new corvettes.
The conviction orders should not have been granted by the SCA because one of the requirements of the Poca is the establishment of a direct link between corrupt activities and the ‘benefit derived†from such activities. The SCA was wrong to find that Shaik’s shares in Nkobi Holdings ‘constitute benefits derived from the crime of corruptionâ€, the legal team will argue.
The key thrust of Shaik’s defence is that the implementation of the Poca is unconstitutional as it infringes the right to property enshrined in the Bill of Rights. Singh will seek to convince the court that the confiscation orders against his clients are an ‘arbitrary†confiscation of property.
He will admit that the legislation does allow for the confiscation of property, but only if the penalty matches the crime.
All the defendants have been punished by the criminal sentence, Singh will argue, and there was therefore no need for the SCA to grant separate orders as this would result in his clients being punished twice for the same crime — which is known as ‘double jeopardyâ€.
In granting Shaik and his companies the right to appeal, Deputy Chief Justice Dikgang Moseneke expressed the court’s view that it was exactly the question of the ‘proportionality†of the confiscation to the crime committed and of the concomitant right to property that demanded the Constitutional Court grant Shaik the right to appeal.
The court is expected to hear arguments from Tuesday.