Now State gets grilling from Bench in Shaik appeal

Judge Craig Howie, President of the SCA, reserved judgment late in the day on the criminal appeals – the corruption and fraud convictions – but not before state prosecutor Billy Downer faced an array of questions on the fax\'s admissibility. The civil appeal of a R34m asset forfeiture order by the Durban High Court against Shaik will begin today. The assets were said to be proceeds of crime.

Judge Piet Streicher became the fourth judge to criticise the State for failing to prosecute ANC Deputy President Jacob Zuma and French arms company Thint at the same time as it did Shaik. And, in what a report in The Mercury describes as a somewhat surprising response, State Advocate Billy Downer SC told the judge that he was ‘preaching to the converted’. Downer said he could not prosecute Zuma and Thint with Shaik because former prosecutions boss Bulelani Ngcuka had decided in August 2003 that he did not have a winnable case against Zuma. Full report in The Mercury (subscription needed)

Downer was adamant the fax should be allowed as evidence, saying it was ‘a very, very probative piece of evidence’. The encrypted fax allegedly details the negotiation of a R500 000-a-year bribe for Jacob Zuma – while he was Deputy President – for protection in the investigation into SA’s multibillion-rand arms deal. The State said that even if the author of the fax, Alain Thetard, was not a credible witness, the facts contained in the fax still stood. Shaik’s team contended that Thetard was not a credible witness because he had lied on various occasions and for this reason the fax should not be allowed as evidence. According to a report on the Mail & Guardian Online site, the State conceded, as it had in the trial, that a court would find him a non-credible witness. ‘We still sit with the facts. If you look at the statement itself (the fax), what possible motive could Thetard have had in composing a fax that was not true? There is none,’ Downer said. He argued all facts contained in the fax had been confirmed by evidence. Full report on the Mail & Guardian Online site

The argument from Shaik’s legal team, led by Jeremy Gauntlett SC, was that the fax had very little probative value because of Thetard\'s ‘extremely unreliable character’ with an ‘aversion to truth telling’. However, Judge Heher stated: ‘But it is beyond any doubt whatsoever that an amount of R500 000 per annum was offered and accepted for a purpose.’ A report on the IoL site says Gauntlett was trying to convince the judges to look at the document on its own as ‘a flat piece of paper’. However, Heher said its content, even as a flat piece of paper, had ‘a particular thrust’. In response to Downer\'s attempt to convince the court that the case was clear, Judge Piet Streicher said: ‘I find it worrying that you are arguing that the fax is as clear as daylight, that it is clear as daylight that Mr Zuma, Shaik and the French organised a bribe.’ He then asked Downer if the SCA should take into account that the other two people (Thetard and Zuma) involved in the fax had not been charged, and whether this would not have put them in a better position to decide on the admissibility. Full report on the IoL site