S v Shaik and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J and Van der Westhuizen J
• Judgment Date: 02 October 2007
• Citation: 2008 (1) SACR 1 (CC)
• Docket Number: CCT86/06
• Counsel: N Singh SC (with H Gani) for the applicants. W Trengove SC (with A Cockrell) for the respondent.
• Court: Constitutional Court

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Introduction

A [1] This is an application for leave to appeal to this court against a decision of the Supreme Court of Appeal. It emanates from criminal proceedings in the Durban High Court (High Court) in which B Mr Schabir Shaik (first applicant or Mr Shaik), a businessman, and the companies represented by him (the second to the eleventh applicants or corporate applicants) were the accused. Mr Shaik was convicted on two counts of corruption and one of fraud on 2 June 2005. An effective sentence of 15 years' imprisonment was imposed, [1] being the minimum C sentence in terms of s 51(2)(a)(i) of the Criminal Law Amendment Act (Amendment Act). [2] The corporate applicants were convicted of various counts of corruption and fraud, [3] and sentenced to the payment of fines in varying amounts. [4]

[2] On application by the State, the High Court subsequently granted D confiscation orders against certain of the property of the applicants that

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was considered to be the proceeds of unlawful activity in terms of s 18 of the Prevention of Organised Crime Act (POCA). [5] A

[3] All the applicants applied for leave to appeal to the High Court against the convictions and sentences imposed, as well as against the confiscation orders. The High Court refused leave to appeal to certain of B the applicants and granted limited leave to others. [6] The applicants then applied to the Supreme Court of Appeal for leave to appeal against the adverse decisions and orders of the High Court where leave to appeal had been refused by the High Court; where the High Court had granted limited leave, the application was to broaden the leave to appeal to a C general leave to appeal.

[4] The Supreme Court of Appeal issued a preliminary order granting further leave to appeal on some grounds, dismissing leave to appeal on other grounds and setting the remaining applications for leave to appeal D down for oral hearing. [7] The Supreme Court of Appeal gave judgment on

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6 November 2006 in which it dismissed all of the applications for leave A to appeal, and all of the appeals in the criminal matter. [8] It partially upheld the appeal against the High Court's confiscation orders.

[5] The convictions concerned three related elements of the applicants' relationship with Mr Jacob Zuma (Mr Zuma). The first count was a general charge of corruption in terms of s 1(1)(a) of the Corruption Act B 94 of 1992. [9] Central to the convictions on this count was the High Court's finding that the applicants had, from October 1995 to September 2002, corruptly made certain payments to Mr Zuma, the object being to influence him to use his name and political influence for the benefit of Mr Shaik and his business enterprises. At the time the payments were made Mr Zuma was, from October 1995 to mid-1999, C the member of the Executive Council for Economic Affairs and Tourism in KwaZulu-Natal and then subsequently, from mid-1999 onwards, the Deputy President of the Republic of South Africa and leader of government business in Parliament. The second count was one of fraud. The High Court held that these payments had been fraudulently written D off in certain accounting records of the corporate applicants. Finally, the third count was also one of contravening s 1(1)(a)(i) of the Corruption Act and related to a specific payment to Mr Zuma. The first alternative charge to count 3 was of money laundering in contravention of s 4(a) and (b) of POCA. [10] The High Court held that Mr Shaik had conspired E

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A with a local director of French company Thomson-CSF (Pty) Ltd (Thomson) - renamed in August 2003 as Thint (Pty) Ltd (Thint) - Mr Alain Thétard (Mr Thétard), to offer payment to Mr Zuma in exchange for his authority and influence, to protect and promote Thint in the so-called 'arms deal'. [11] The arrangement was accepted and B confirmed by an encrypted fax which was sent by Mr Thétard to Thomson's head office in Paris. The fax was admitted as evidence by the High Court.

[6] Thint was originally indicted in the criminal matter. However, pursuant to an agreement concluded between it and the National Director of Public Prosecutions (NDPP), the charges against Thint were C withdrawn before it was required to plead. The agreement provided that Mr Thétard would provide evidence for the State pertaining to his authorship of the encrypted fax in exchange for withdrawal of the charges against Thint and Mr Thétard.

[7] The applicants now seek leave to appeal to this court against the D decision of the Supreme Court of Appeal. When the matter was set down for hearing, the directions issued by the Chief Justice required the parties to address the application for leave to appeal only. [12]

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[8] The application before us is in two parts. The first, which is directed A at the criminal proceedings, is based on contentions that the rights of the applicants to a fair trial, equality and dignity have been infringed. The sentences imposed are also challenged. We refer to this part of the application as the 'criminal proceedings'. The second part is concerned with the orders for the confiscation of the assets of the first to the third applicants and is referred to as the 'POCA proceedings'. B

Issues before this court

[9] A number of issues as to the alleged unfairness of the trial were raised on the applicants' papers, but were not pursued in oral argument before this court. These were concerned with the admissibility of the encrypted C fax, the validity of search and seizure operations, the alleged influence of the media on the decision of the Supreme Court of Appeal and an alleged unconstitutional joinder of charges. In oral argument, counsel for the applicants confined himself to two issues, namely, the unfairness of the trial as a consequence of the non-joinder of Mr Zuma, Thint and D Mr Thétard as co-accused in the criminal proceedings and what was referred to as prosecutorial misconduct. He submitted that the enquiry into the alleged unfairness of the trial fell to be dealt with on these two grounds only and specifically disavowed any reliance on the other issues that are raised in the written submissions.

[10] Mr Shaik challenges the sentence imposed on him on the basis that E the High Court and the Supreme Court of Appeal failed to consider the socio-economic context of racial discrimination that had, according to this submission, denied Mr Shaik equal opportunities and caused him to commit 'economic crimes'. The applicants also contend that the provisions F of the Amendment Act should not have been invoked as the initial commission of the crime predates the advent of the legislation.

[11] As to the POCA proceedings, the applicants raise three main issues. The first is concerned with an application to introduce new facts in the confiscation proceedings that had not been raised at the criminal trial. G The second issue is concerned with the question whether certain of the benefits that became the subject of the POCA proceedings had been obtained as a result of Mr Zuma's intervention, and the third is whether the confiscation was proportionate.

Interlocutory applications

H [12] Before considering the substantive matters raised, it will be convenient to deal with some preliminary applications made by the applicants. The following applications were made:

(a)

to condone the late filing of the application for leave to appeal; [13]

(b)

to amend the notice of motion; [14] I

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(c)

A to adduce further evidence; [15]

(d)

to amend the application to adduce further evidence; [16]

(e)

to condone the late filing of written submissions; [17]

(f)

for leave to file supplementary written argument; [18]

(g)

to condone the late filing of supplementary written argument. [19]

B [13] The State opposes all these applications except (e). Its opposition to (a) is based on the lack of a satisfactory explanation for the delay. The opposition to (c) is addressed below. It does not provide any reasons for its opposition to the applications to amend. By the time applications (f) and (g) were filed, the State argues, the applicants' continued non- C compliance with this court's rules and directions had created a 'labyrinthine morass' of papers and had as a result caused them prejudice. It also opposes (f) on the ground that the argument had not been mentioned in the original application.

[14] We have considered the application for condonation of the late D filing of the application for leave to appeal. The matter is indeed a complicated one and we consider that the applicants have given sufficient reasons for the delay. Condonation is accordingly granted. There are also, in our view, no reasons not to grant the two applications to amend. In view of the conclusions we reach below on the merits, it is unnecessary E to consider the applications relating to the written submissions, described in (e) to (g), as the outcome would not affect the result of the application for leave to appeal. The way is now clear to consider the test for the granting of an application for leave to appeal.

The test for the granting of leave to appeal

F [15] Leave to appeal will be granted if an applicant raises a constitutional matter or an issue connected with a decision on a constitutional matter [20]

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and if it is in the interests of justice to grant leave to appeal. [21] Whether A it is in the interests of justice for an application for leave to appeal to be granted depends on a careful and balanced weighing-up of all relevant factors, including the importance of the constitutional issues and the prospects of success. [22] With regard to the prospects of success, the court must have regard to and make an...