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Shaik trial 'a dry run for Zuma'
23/05/2007 18:39 - (SA)
Johannesburg - The trial of Schabir Shaik was a "dry run" by the prosecution to see whether it would succeed in prosecuting ANC deputy president Jacob Zuma, the Constitutional Court heard on Wednesday.
The prosecution did not try them jointly, because there was not enough evidence, but on the basis of reasons that were "entirely spurious", submitted Shaik's defence counsel, Martin Brassey, SC.
The court should have challenged the prosecution's decision when it was made, and the prosecution should have been required to state its reasons for separating the cases - that it had put up Shaik up as "bait".
"That is deeply unfair," Brassey submitted.
"He shouldn't be used as a dummy or trial run, which is certainly what appeared to have happened here."
Brassey contended that it was wrong for the prosecution to separate trials merely for tactical reasons, to obtain a strategic advantage.
He further contended that it was not for the defence to challenge prosecution decisions in incidents where it had not discharged its duties.
Shaik 'mistried'
Pressed to explain how Zuma's absence had prejudiced Shaik, Brassey told the court that, had Zuma appeared, it would have been as the deputy president of the country entering the box to tell the court "this is how it is between Shaik and me".
Zuma might have testified that he was a friend of Shaik, who had helped him "comrade to comrade", as a compatriot, "as a father helps a son".
Brassey submitted to the court that the truth suffered if conspirators were not tried together - with particular regard to the specific circumstances in this case.
He holds that Shaik was "mistried", in that the trial was in breach of "constitutional guarantees against punishment without due course of law".
Brassey told the court the matter was not raised before the Supreme Court of Appeal, because there had not been enough time to properly prepare a 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 is applying to the Constitutional Court for leave to appeal his conviction, sentence and the seizure of his assets.
Apart from irregular separation of trials, Brassey contends that there were irregularities in the prosecution of Shaik.
He submitted that there was such a conflation of roles between the prosecution and the investigation that it produced a situation in which "the prosecution had an upperhand in relation to the accused".
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