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Shaik case 'flight of fantasy'
24/05/2007 12:39 - (SA)
Johannesburg - The trial of Schabir Shaik was not a dry run for the prosecution of ANC deputy president Jacob Zuma, the Constitutional Court heard on Thursday.
"It's just not true," submitted Wim Trengove, SC, appearing for the State in an application by Shaik for leave to appeal his conviction of corruption and fraud, his 15-year prison sentence and the seizure of his assets.
"It does seem to me it would be improper to structure a trial for that ulterior purpose," Trengove contended, but added this had not been the prosecution's intention in trying Shaik alone.
It had been optimistic about its strong case against Shaik, but pessimistic about its weak case against Zuma. In this case, it was "entirely proper" to try the one first, before proceedings with the prosecution of the other.
"Ultimately, an accused is convicted not because of the decision of the prosecution, but on the basis of the evidence before the court."
Cynical attempt
Trengove described Shaik's Constitutional Court action as a cynical attempt by someone who had finally reached a "dead end" in the case.
Shaik was convicted on two counts of corruption and one of fraud on June 2 2005 in the Durban High Court. He was later sentenced to 15 years in prison. The Supreme Court of Appeal upheld the conviction and sentence on November 6 2006.
Shaik reported to Westville Prison, in Durban, on November 9. However, he was quickly transferred to Qalakabusha prison, where it was said to be easier to monitor his serious medical condition of the past five years.
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-related conditions.
Officials have repeatedly denied media claims that he is receiving preferential treatment in prison.
Trengove pointed out to the court that Shaik's counsel had not complained about the failure to charge Zuma and Thint, but about the prosecution of Shaik in the absence of Zuma and Thint.
It was not the duty of the prosecution to structure a case in a way that most beneficial to the accused, Trengove told the court.
He dismissed as a "flight of fantasy" Shaik's counsel's picture of how differently the case might have been had Zuma testified.
There was no basis to suggest that this might have been the case.
If it were true, he imagined Zuma would have been eager to come to court to rescue his "comrade, compatriot, father" . He would not have "shirked" his friend in need.
If for some inexplicable reason Zuma was unwilling to come to court, he could have been compelled by law to give his exculpatory evidence.
Trengove submitted that it was on the advice of his counsel that Shaik did not call Zuma and that the inference from this was either that his evidence would not support Shaik's version or that his version in support of Shaik would not have stood up to scrutiny.
His counsel had admitted in court that the reason Shaik's case had failed was because he "lied in evidence", because he "contrived" a version of events.
Trengove further submitted that it was generally in an accused's favour to be tried separately from his co-accused.
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