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Trial of Zuma now inevitable – criminal law expert

Publish date: 03 October 2007
Issue Number: 1923
Diary: Legalbrief Today
Category: Criminal

The corruption trial of Jacob Zuma became inevitable with the unanimous decision yesterday of 11 Constitutional Court judges to dismiss Schabir Shaik’s application to appeal against his conviction on charges of corruption and fraud and his 15-year jail sentence, says Tom Coetzee,

Professor of Criminal Law at the University of North West, According to a Beeld report, the judges ruled that Shaik’s application to appeal did not have a reasonable chance of succeeding, and that it would therefore not be in the interests of justice to hear it. It notes the judges referred in particular to Schaik’s corrupt relationship with Zuma and said it centered on the High Court’s finding that Shaik and his companies had from October 1995 to September 2002 ‘made certain payments in a corrupt way to Zuma, with the intention of influencing him to use his name and political influence to benefit Shaik and his undertakings’. Coetzee said the decision means that from a legal point of view a prima facie case against Zuma ‘clearly exists’ and that it is a matter that Zuma ought to respond to in court, ‘regardless of the massive political impact’ that this would have. ‘Remember that the finding that Shaik paid money in a corrupt way to Zuma is now the finding of three courts: the High Court, Appeal Court and Constitutional Court. I’m not saying that Zuma is guilty. What I am saying is that it’s inevitable that he’ll now have to be charged to put his side of the case.’ However, Business Day quotes prosecutor Billy Downer as saying the outcome of other cases was being awaited before a final decision was made about Zuma. Full Beeld report Full Business Day report Judgment

Zuma’s attorney Michael Hulley, however, was unconcerned, saying the decision had little or no bearing on any pending case against Zuma. ‘The fact of the matter is that Mr Zuma was not the person on trial,’ he is quoted as saying in a report in The Mercury. Hulley also rubbished suggestions that the Constitutional Court’s refusal to consider Shaik’s ‘unfair trial’ claims against the State – based largely on records of the State’s aborted prosecution of Zuma and Thint – would prevent Zuma from raising similar claims in the future. ‘Ours is a simple response: this was a ruling on whether Mr Shaik had a reasonable prospect of success in appearing against his convictions and sentences. Nowhere was there any pronouncement on the merits of the appeal itself. ‘This judgment is essentially about a technical matter and I can’t see how it could increase or decrease the State’s level of confidence about its prospects of success in prosecuting Mr Zuma.’ Full report in The Mercury (subscription needed)

Political analysts agree with Hulley. ‘This has no implication for Zuma. It is an open secret that the NPA wants to charge Zuma,’ said KwaZulu-Natal political analyst Nhlanhla Mtaka. ‘They have said so themselves, hence their defence of their search-and-seizure blunder,’ he said, adding that it was clear from the beginning that the NPA strategy was to deal with Shaik first and then go for Zuma. ‘They should not make the colossal mistake of linking the two cases,’ Mtaka said, according to a report in The Mercury. University of KwaZulu-Natal political analyst Zakhele Ndlovu believed that the Constitutional Court decision would have no negative impact on Zuma’s political career. ‘Until such time Zuma has been charged and convicted, it is business as usual for him.’ Full report in The Mercury (subscription needed)

On Shaik’s bid to appeal against the seizure of his assets, the Constitutional Court ruled there might be a constitutional issue to be argued and granted leave to appeal on that point. The High Court had granted an order authorising the confiscation of various proceeds of the unlawful activities in terms of the Prevention of Organised Crime Act 121 of 1998 (POCA). The Supreme Court of Appeal partially upheld the appeal in respect of the confiscation. In the Constitutional Court, the applicants argued that the unlawful activities were not the cause, or at least not the direct or sole cause, of the benefit. In addition, they contended that the confiscation was disproportionate to the crime. The court unanimously held that the applicants’ submissions raise a constitutional issue. POCA must be interpreted in conformity with the Constitution, which provides that no one may be arbitrarily deprived of his or her property. It held that the submissions could not be said to bear no reasonable prospects of success. Accordingly, it concluded that it was in the interests of justice for the application for leave to appeal against the confiscation order to be granted.

Independent Democrats (ID) leader Patricia de Lille welcomed the decision to reject Shaik’s application to appeal against conviction and sentence. Shaik should ‘reflect on the damage he inflicted on our freedom’, De Lille said after the ruling. ‘It is a victory for justice. I was vindicated for the first time when Schabir Shaik was found guilty in the Durban High Court based on my evidence and now I have been vindicated again.’ Prosecutor in the case, Anton Steynberg, said afterwards that Shaik’s only option now was to petition the President, according to a report on The Citizen site. ‘Obviously we are very pleased with the result in the criminal part of the proceedings.’ Another prosecutor, Billy Downer, said: ‘This is the end of a long road – some seven years.’ Shaik\'s brother, Mo, expressed his disappointment at the ruling, according to an SABC News report. He added his brother was still in the hospital section of Westville prison, where he was trying to come to terms with the news. Full report on The Citizen site Full SABC News report