S v Shaik and Others

• Jurisdiction: South Africa
• Judge: Squires J
• Judgment Date: 08 June 2005
• Citation: 2007 (1) SACR 142 (D)
• Docket Number: CC27/2004
• Counsel: W J Downer SC (with him G H Penzhorn SC, A Steynburg and S Manilall) for the State F van Zyl SC for accused 1 - 10 and 12. H K Naidu SC for accused 11.
• Court: Durban and Coast Local Division

Squires J:

The accused persons in this trial are Mr Schabir Shaik, who is accused No 1, and ten of the corporate entities that are part of his group of private companies. There are other companies in that group but these proceedings are not concerned with them and, of those charged, some played a noticeably more active role than others. But, whether by reason D of being the sole shareholder or only a majority shareholder in each company and whether he owned such shares directly or indirectly through another company, Schabir Shaik effectively controlled all of them.

There was originally another corporate accused in these proceedings by the name of Thint (Pty) Ltd. This company was initially called Thomson-CSF (Pty) Ltd, and was a subsidiary of another eponymous E company called Thomson-CSF Holdings (Southern Africa) (Pty) Ltd. These two companies came into existence pursuant to an agreement reached by Schabir Shaik in mid-1995 with Thomson-CSF (France), the French-based defence and electronics giant which was by then re-establishing a foothold in this country, especially in the government-driven F defence and public works sector programmes being contemplated and started after 1994. That agreement committed Thomson-CSF (France) to pursue its business in this country on a joint-venture basis with the Nkobi group of companies already established or to be established by accused No 1. On that basis was Thomson-CSF Holdings (Southern Africa) (Pty) Ltd incorporated on 27 May 1996 and in which G Thomson-CSF (France) held 85 of the 100 shares issued, Nkobi Investments (accused No 3) held ten and a Swiss-based company called Gestilac SA held the remaining five. As the name indicates, this was to be the holding company of Thomson's interests in this country, so another company was incorporated on 16 July 1996, through which its anticipated operations would be carried on, and in which Thomson-CSF H Holdings held 70% of the shares and Nkobi Investments held 30%. That was Thomson-CSF (Pty) Ltd and, by subsequent change of name, in August 2003 it became known as Thint (Pty) Ltd. Although the charges against it were withdrawn before the plea, it still plays an important role in the trial, especially in respect of count 3, in the commission of which I the State said it was a co-accused and still alleges that it was a participant in the offences charged in that count.

The accused are charged with three main counts, but in each count there are a number of lesser alternative charges. Three of these are against Schabir Shaik only, but all the rest are directed at both him and his companies. J

Squires J

The main charge on count 1 is that of contravening s 1(1)(a) of the A Corruption Act 94 of 1992. That is both subparas (i) and (ii) of ss (a). This alleges that over the period of time from October 1995 to 30 September 2002, and taking place in or about Durban, Shaik, or one or other of his accused companies, gratuitously made some 238 separate payments of money, either directly to or for the benefit of Mr Jacob B Zuma, who held high political office throughout this period.

Initially, from 1994 to 1999, he was the Minister of Economic Affairs and Tourism in the Provincial Legislature of KwaZulu-Natal, and after June 1999 the Deputy President of the country and leader of government business in its Parliament. Besides that, and also throughout this period, C he held high office in the ruling political party, first as the National Chairman until 1997 and thereafter as its Deputy President. Over those years a total sum of R1 340 078 was so paid to Jacob Zuma, and the State claims that this was done corruptly, the object being to influence Zuma to use his name and political influence for the benefit of Shaik's business enterprises or as an ongoing reward for having done so from D time to time.

There is a bit more to count 1 than this bald recital of the wording may indicate. All the charges in this case were preceded by a lengthy preamble which set out the main background facts upon which the charges are framed, and which is to be read with the charges. The wider picture thus E presented was widened even further by a lengthy request on behalf of the accused for further particulars to both the preamble and the charges, to which the State made an equally copious reply. From the full result of all this additional information, it emerges that the State case is not the usual corruption F charge of one payment for one act or omission in the line of the recipient's duty. It is that the payments made by the accused effectively constituted a type of retainer by which accused No 1 agreed, expressly or impliedly, to pay these many expenses over this period to Zuma or for his benefit or to make cash payments to him as and when he needed such financial help, while he, in return, would render such assistance as he could to further the accused's interests, as and when G asked. It is not alleged that there was any particular payment for any particular act or omission of duty. It is the same kind of activity that is penalised by the Act but carried out in this particular way in this case. That must be an offence under the Act, otherwise it would be too easy to avoid its provisions. H

Secondly, it is clear that the acts or omissions attributed to Jacob Zuma in this charge are alleged to be those inherent in his offices of Minister of Economic Affairs and Tourism in the KwaZulu-Natal Legislature over the first period covered by the charge, that is from October 1995 to mid-1999, and thereafter as Deputy President of the I national government and leader of government business in Parliament. This aspect assumed some importance in the hearing because Mr Downer sought to urge the argument that the ambit of Zuma's duties and powers should be interpreted as including such acts as he carried out on behalf of the accused's interests as deputy president of the ANC before he became Deputy President of the national government and while he J

Squires J

was still a member of the Executive Council of the KwaZulu-Natal Legislature. A

That cannot be accepted for two reasons. In the first place, it is not alleged in the charge that the accused's intention in giving the alleged benefits to Zuma was to influence him in the discharge of any duties he may have as deputy president of the ANC. But, secondly, whatever those B powers or duties are, if any, they are not a power that is 'conferred by law', as the Corruption Act requires, or held in any other office of the State that is created by law. If the tenure of that office did impose a duty or range of duties on the holder to act in the public interest, and that was stated in the charge, then it could fall into the Act if a bribe was paid to the holder who discharged such duties or failed to do so to the benefit C of anyone who was offering the payment. But that is not the case here, and such acts as the evidence shows might have been carried out by Jacob Zuma solely in his capacity as deputy president of the ANC would not be covered by the charge.

Mr Van Zyl, on the other hand, as I understood him, sought to argue, D in identifying the ambit of the charge, that the acts that Zuma was allegedly intended to commit or omit to do in respect of the payments in the schedule included those listed in para 11 of the State's reply to the accused's request for further particulars. That meant that the case was that Zuma breached his ministerial duties by 'allowing' Schabir Shaik to do various things, like advertise his relationship with Zuma and use the E title of 'financial advisor' to Zuma in brochures and correspondence, when there was no evidence that Zuma even knew this was being done, let alone allowed it to happen.

That seems to me to be a misconception, for I do not think the charge, as amplified, reads that way. The emphasis is not on what Zuma allowed F in breach of any duty, it is on what the accused intended he, Shaik, would achieve, in making the payments he did, and one of which intended results was to advertise this connection.

Then, as a first alternative to this charge, if a corrupt motive for these payments is not established, then Schabir Shaik himself is charged with contravening s 424(3) of the Companies Act 61 of 1973, in that, by G making the payments he caused to be made to Zuma through his companies and, as the controlling mind of those companies, he carried on their business recklessly or with the intention of defrauding their creditors. That follows, says the State, because it was not the business of any of these companies to pay or even lend money to politicians, H particularly when those companies were chronically in a situation of cash shortage and unable to pay ordinary creditors, effectively borrowing money from the banks to make these payments to Zuma and making them interest-free.

Then, in the event that the carrying on of the business in this way is I not regarded as reckless or to the loss of creditors, there is a second alternative charge to count 1, in the shape of a contravention of s 226(1)(a)(i) of the Companies Act, which section forbids the making of loans by a company to a director without the prior consent of all the shareholders of the company, or in terms of a special resolution authorising such loans. In addition, he is charged with contravening J

Squires J

s 226(4)(b) of that Act, a corollary of s 226(1)(a) and which forbids A a director from being a party to the acceptance of such a loan.

It is the State's case that many, if not all, of the payments to Zuma, though from the funds of one or other of his companies, were appropriated and used by Shaik in order to pass on to Zuma and reflected thereafter as a loan to Shaik in the company's books. B

Then the second main charge is one of fraud, and it arises out of the framing and signing of the...